Nuclear Regulatory Commission and National Treasury Employees Union (Authority decision, May 20, 1982)

Final FLRA decision. The Authority decided this unfair labor practice complaint on a stipulated record and dismissed it. Under 5 U.S.C. § 7123(a), an aggrieved party may seek judicial review of a final Authority order within 60 days of issuance.

Plain-English summary

The Nuclear Regulatory Commission refused to reimburse union negotiators for travel and per diem expenses during contract talks. The union filed an unfair labor practice charge, relying on an Authority interpretation that ordinarily required such payment. The parties had earlier signed ground rules expressly stating that the agency would not pay those costs. On the stipulated record, the Authority found that the union had clearly and unmistakably waived the payment entitlement. It dismissed the complaint without a judge's decision to review.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), (5), (8), 7118, and 7131.
• Outcome: The complaint was dismissed in full.
• Key point: An explicit ground rule waived the union team's travel and per diem entitlement.

Full text (FLRA public release)

[ v08 p715 ]

08:0715(124)CA

The decision of the Authority follows:

8 FLRA No. 124

NUCLEAR REGULATORY COMMISSION
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 3-CA-1076

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 (5 CFR 2429.1(A)).

UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
BRIEFS SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL
COUNSEL, THE AUTHORITY FINDS:

SINCE ON OR ABOUT JANUARY 14, 1980, AND AT ALL TIMES MATERIAL HEREIN,
THE RESPONDENT HAS FAILED AND REFUSED TO REIMBURSE UNION NEGOTIATORS,
WHO HAD BEEN AUTHORIZED OFFICIAL TIME, FOR TRAVEL AND PER DIEM EXPENSES
INCURRED IN REGARD TO COLLECTIVE BARGAINING NEGOTIATIONS. THE
RESPONDENT'S REFUSAL TO MAKE SUCH PAYMENT IS BASED UPON GROUND RULES
BETWEEN THE PARTIES EXECUTED ON AUGUST 3, 1979. THE GENERAL COUNSEL
ISSUED A COMPLAINT ALLEGING A VIOLATION OF SECTIONS 7116(A)(1), (5) AND
(8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) BASED UPON THE RESPONDENT'S CONCEDED REFUSAL TO REIMBURSE UNION
NEGOTIATORS FOR SUCH EXPENSES.

THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
ON AUGUST 3, 1979, THE RESPONDENT AND THE UNION EXECUTED A DOCUMENT
ENTITLED "GROUND RULES FOR CONTRACT NEGOTIATIONS BETWEEN THE NATIONAL
TREASURY EMPLOYEES UNION AND THE NUCLEAR REGULATORY COMMISSION," AS THE
BASIS FOR CONDUCTING NEGOTIATIONS CONCERNING THE PARTIES' FIRST
COLLECTIVE BARGAINING AGREEMENT. ITEM 3B OF THE GROUND RULES PROVIDES
THAT "(N)O PER DIEM OR TRAVEL EXPENSES WILL BE PAID BY THE EMPLOYER TO
MEMBERS OF THE UNION TEAM." PREVIOUSLY, ON JULY 20, 1979, THE AUTHORITY
HAD 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 264, PROVIDING,
IN PART, THAT EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SECTION 7131
WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT ARE ENTITLED TO PAYMENT FROM AGENCIES
FOR THEIR DUTY-TIME TRAVEL AND PER DIEM EXPENSES.

ON OR ABOUT JANUARY 14, 1980, THE RESPONDENT AND THE UNION CONDUCTED
THEIR FIRST COMPREHENSIVE CONTRACT NEGOTIATION SESSION; THE UNION
ORALLY ASSERTED THAT ITS NEGOTIATING TEAM WAS ENTITLED TO PAYMENT FOR
TRAVEL AND PER DIEM EXPENSES PURSUANT TO THE AUTHORITY'S INTERPRETATION
AND GUIDANCE REFERRED TO ABOVE, BUT THE RESPONDENT REFUSED TO CONSIDER
SUCH PAYMENT. THEREAFTER, BY LETTER DATED JANUARY 17, 1980, THE UNION
AGAIN REQUESTED THAT RESPONDENT REIMBURSE ITS NEGOTIATING TEAM FOR ALL
TRAVEL AND PER DIEM EXPENSES. THE RESPONDENT TOOK THE POSITION BY
LETTER DATED FEBRUARY 8, 1980, THAT NO EMPLOYEE WHO IS A MEMBER OF THE
UNION'S NEGOTIATING TEAM IS ENTITLED TO REIMBURSEMENT FOR TRAVEL, PER
DIEM, OR SUBSISTENCE EXPENSES IN VIEW OF THE PROVISIONS OF THE GROUND
RULES EXECUTED PREVIOUSLY, AND SUBSEQUENTLY DENIED A REQUEST FOR SUCH
PAYMENTS TO AN EMPLOYEE WHO HAD PARTICIPATED ON OFFICIAL TIME IN THE
NEGOTIATIONS AS A MEMBER OF THE UNION NEGOTIATING TEAM.

AS PREVIOUSLY STATED, THE AUTHORITY CONCLUDED IN ITS INTERPRETATION
AND GUIDANCE, SUPRA, THAT "ANY EMPLOYEE WHO IS ON OFFICIAL TIME UNDER
SECTION 7131 OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE
REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT
IS ENTITLED TO PAYMENT FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND
PER DIEM EXPENSES." /1/ HOWEVER, THE ENTITLEMENT TO SUCH PAYMENT UNDER
SECTION 7131, AS WITH OTHER RIGHTS UNDER THE STATUTE, MAY BE WAIVED BY
CLEAR AND UNMISTAKABLE CONDUCT. SEE, E.G., DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2(1981); DEPARTMENT OF THE
AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100(1981). IN THE
INSTANT CASE, THE PARTIES SPECIFICALLY AGREED ON WRITTEN GROUND RULES
WHICH STATED, IN PERTINENT PART, THAT "(N)O PER DIEM OR TRAVEL EXPENSES
WILL BE PAID BY THE EMPLOYER TO MEMBERS OF THE UNION TEAM." 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. UNDER THE FOREGOING CIRCUMSTANCES, THE AUTHORITY
CONCLUDES THAT THERE WAS A CLEAR AND UNMISTAKABLE WAIVER OF THE UNION
NEGOTIATING TEAM'S ENTITLEMENT TO SUCH PAYMENTS PURSUANT TO SECTION 7131
OF THE STATUTE, AND THAT THE RESPONDENT THEREFORE DID NOT VIOLATE
SECTION 7116(A)(1), (5) OR (8) OF THE STATUTE BY FAILING AND REFUSING TO
MAKE SUCH PAYMENTS UPON REQUEST. /2/

ORDER

ACCORDINGLY, IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO.
3-CA-1076 BE, AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.

ISSUED, WASHINGTON, D.C., MAY 20, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ SEE ALSO BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS, WESTERN
DIVISION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA
NO. 40(1980), ENFORCED, NOS. 80-7673, 81-7021 (9TH CIR.MAR. 22, 1982).

/2/ IN SO CONCLUDING, THE AUTHORITY HAS NOT CONSIDERED ANY ASSERTIONS
CONTAINED IN THE RESPONDENT'S BRIEF WHICH RELIES UPON FACTS NOT SET
FORTH IN THE PARTIES' STIPULATION HEREIN. ADDITIONALLY, THE AUTHORITY
HAS NOT CONSIDERED THE RESPONDENT'S "COUNTERCLAIM" THAT THE CHARGING
PARTY COMMITTED AN UNFAIR LABOR PRACTICE BY REPUDIATING THE PARTIES'
NEGOTIATED GROUND RULES, INASMUCH AS SUCH CONTENTION WAS NOT RAISED
PURSUANT TO THE PROVISIONS OF SECTION 7118 OF THE STATUTE AND PART 2423
OF THE AUTHORITY'S RULES AND REGULATIONS.