United States Customs Service and NTEU (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

NTEU negotiators received official time while bargaining a national master agreement, but Customs refused to pay their travel and per diem. On a stipulated record, Customs acknowledged the refusal and asked the Authority to reverse its established interpretation of the statute. The Authority declined and found violations of sections 7116(a)(1) and (8). It ordered payment of properly documented expenses and a notice posting. 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 travel and per diem ordered paid.
• Key point: Official time for national bargaining carried reimbursement for negotiators' travel and per diem.

Full text (FLRA public release)

[ v07 p453 ]

07:0453(68)CA

The decision of the Authority follows:

7 FLRA No. 68

UNITED STATES CUSTOMS SERVICE
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

and

OFFICE OF PERSONNEL MANAGEMENT
Intervenor

Case Nos. 3-CA-261
3-CA-1230

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 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2429.1(A)).

UPON CONSIDERATION OF THE ENTIRE RECORD IN THESE CASES, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS
SUBMITTED BY THE RESPONDENT, THE GENERAL COUNSEL AND THE INTERVENOR, THE
AUTHORITY FINDS:

THE COMPLAINTS HEREIN ALLEGE THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) ON JANUARY 11, 1979, AND CONTINUING
THEREAFTER, BY REFUSING TO REIMBURSE EMPLOYEES SERVING AS UNION
NEGOTIATORS FOR TRAVEL AND PER DIEM EXPENSES INCURRED ON OFFICIAL TIME
IN REGARD TO COLLECTIVE BARGAINING NEGOTIATIONS ENGAGED IN BY THE
PARTIES OVER A NATIONWIDE MASTER AGREEMENT. /1/

THE RESPONDENT ADMITS IT HAS REFUSED TO PAY TRAVEL AND PER DIEM
EXPENSES TO EMPLOYEES SERVING AS UNION NEGOTIATORS, IN VIOLATION OF
ESTABLISHED PRECEDENT. /2/ HOWEVER, THE RESPONDENT URGES THAT SUCH
PRECEDENT BE REVERSED. THE RESPONDENT'S POSITION IS THAT THERE IS NO
BASIS IN THE STATUTE, ITS LEGISLATIVE HISTORY, OR IN PRECEDENT
ESTABLISHED UNDER EXECUTIVE ORDERS 10988 AND 11491 TO SUPPORT A DECISION
THAT IT MUST PAY TRAVEL AND PER DIEM EXPENSES. THE RESPONDENT ARGUES
THAT TO PAY SUCH MONIES WOULD BE IN VIOLATION OF LAW AND OF POLICY
LIMITATIONS ON ITS APPROPRIATION. /3/ THE INTERVENOR ESSENTIALLY ARGUES
IN SUPPORT OF THE RESPONDENT'S POSITION THAT THE AUTHORITY'S
INTERPRETATION OF THE STATUTE IN INTERPRETATION AND GUIDANCE, SUPRA, WAS
INCORRECT AND SHOULD BE REVERSED.

THE PARTIES' STIPULATION REVEALS THAT THEY HAVE BEEN NEGOTIATING A
NATIONWIDE MASTER AGREEMENT SINCE NOVEMBER OF 1978. SINCE ON OR ABOUT
JANUARY 11, 1979, THE EMPLOYEES OF THE RESPONDENT ACTING AS MEMBERS OF
THE UNION NEGOTIATING TEAM HAVE BEEN GRANTED OFFICIAL TIME DURING THE
TIME THEY WERE ENGAGED IN NEGOTIATING THE NATIONWIDE AGREEMENT.
HOWEVER, THEY HAVE BEEN REFUSED PAYMENT FOR TRAVEL AND PER DIEM EXPENSES
INCURRED DURING THE TIME PERIOD IN WHICH THEY WERE GRANTED OFFICIAL
TIME.

THE AUTHORITY HAS CONSIDERED THE RESPONDENT'S ARGUMENTS, ESSENTIALLY
BASED ON THE RESPONDENT'S READING OF THE LEGISLATIVE HISTORY, THAT
ESTABLISHED PRECEDENT (NOTE 2, SUPRA) BE REVERSED. HOWEVER, NO BASIS
HAS BEEN ADVANCED TO DEMONSTRATE THAT THE ESTABLISHED PRECEDENT IS
INCORRECT, NOR HAS THE RESPONDENT RAISED ARGUMENTS NOT PREVIOUSLY
CONSIDERED. THUS, THE AUTHORITY CONCLUDED IN THE INTERPRETATION AND
GUIDANCE AND SUBSEQUENT CASES, BASED ON 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.
THEREFORE, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) WHEN IT DENIED PAYMENT OF PER DIEM AND TRAVEL
EXPENSES TO EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT. /4/

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 UNITED STATES CUSTOMS SERVICE SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES AS A RESULT OF
THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
NATIONWIDE MASTER AGREEMENT NEGOTIATIONS.

(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 ANY OF ITS EMPLOYEES WHO SUBMIT A PROPERLY
DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT
OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE
AS THE DULY DESIGNATED REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES
UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN THE NEGOTIATION OF
THE PARTIES' NATIONWIDE MASTER AGREEMENT.

(B) POST AT ITS FACILITIES NATIONWIDE 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 COMMISSIONER OF
CUSTOMS 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
COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID 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 III, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, 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 OUR EMPLOYEES AS A RESULT OF
THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
NEGOTIATIONS OVER THE NATIONWIDE MASTER AGREEMENT.

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 ANY OF OUR EMPLOYEES WHO SUBMIT 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 AS THE DULY DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, IN THE
NEGOTIATION OF THE NATIONWIDE MASTER AGREEMENT.

(AGENCY OR ACTIVITY)

DATED:

BY:

(SIGNATURE) (TITLE)

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF THIS 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 III, WHOSE ADDRESS
IS 1111 18TH STREET, NW., WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE
NUMBER IS (202) 653-8452.

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

/1/ THE COMPLAINTS ALLEGE ESSENTIALLY IDENTICAL CONDUCT.

/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/ THE RESPONDENT ALSO ARGUES THAT INTERPRETATION AND GUIDANCE,
SUPRA, HAS NO FORCE AND EFFECT AS THE "ISSUANCE OF THE SUBJECT POLICY
STATEMENT WAS AN ABUSE OF DISCRETION BY THE AUTHORITY . . . ." WITHOUT
PASSING ON THE MERITS OF THIS ARGUMENT, THE AUTHORITY NOTES THAT THE
ISSUE HAS BEEN DECIDED IN SUBSEQUENT UNFAIR LABOR PRACTICE CASES (SEE
NOT 2, SUPRA), THUS RENDERING THE ARGUMENT MOOT.

/4/ BASED ON THE ABOVE OUTCOME, WHICH FULLY REMEDIES THE VIOLATION
FOUND HEREIN, THE AUTHORITY FINDS IT UNNECESSARY TO DECIDE WHETHER SUCH
CONDUCT ALSO VIOLATED SECTION 7116(A)(5).