Florida National Guard and National Association of Government Employees, Local R5-91 (Authority decision, August 9, 1984)

Final FLRA decision. This supplemental order retains relief for denied official time and vacates the earlier order insofar as it required travel and per diem reimbursement. 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

The Authority had earlier found that the Florida National Guard unlawfully denied a union representative official time and reimbursement for travel and per diem expenses during impasse proceedings. Following court review, the Authority dismissed the travel and per diem allegations and vacated that part of its order. It retained the requirement to provide official time for the two proceeding days and to adjust the representative's charged annual leave. The outcome is mixed because the official time relief survived while the expense claim was dismissed.

Decision snapshot

• Authority: Official time under 5 U.S.C. § 7131(a).
• Outcome: Official time order retained; travel and per diem allegations dismissed.
• Key point: The statutory official time obligation did not include travel and per diem reimbursement.

Full text (FLRA public release)

[ v15 p469 ]

15:0469(99)CA

The decision of the Authority follows:

15 FLRA No. 99

FLORIDA NATIONAL GUARD
Respondent

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-91
Charging Party

Case No. 4-CA-300
5 FLRA 365

SUPPLEMENTAL DECISION AND ORDER

On March 20, 1981, the Authority issued a Decision and Order in the above-entitled proceeding in which it found that the Respondent failed and refused to comply with section 7131(a) of the Federal Service Labor-Management Relations Statute (the Statute) in violation of section 7116(a)(1), (6), and (8) of the Statute when it failed and refused to provide employee Ronald L. Meier official time in connection with Federal Service Impasses Panel impasse proceedings held on August 22 and 23, 1979. In addition, the Authority found that the Respondent failed and refused to comply with section 7131(a) of the Statute in violation of section 7116(a)(1), (6), and (8) of the Statute when it failed and refused to provide related travel and per diem expenses. Thereafter, the Respondent petitioned the United States Court of Appeals for the Eleventh Circuit for review of the Authority's Decision.

The Court granted Respondent's petition for review and denied the Authority's cross-application for enforcement of the Authority's order on March 7, 1983, Florida National Guard v. FLRA, 699 F.2d 1082 (11th Cir.), cert. denied, 104 S.Ct. 524 (1983). In its decision, the Eleventh Circuit concluded that the obligation of an agency under section 7131(a) of the Statute to provide official time to an employee representing an exclusive representative in the negotiation of a collective bargaining agreement does not encompass the payment of travel expenses and a per diem allowance.

Pursuant to the decision of the United States Court of Appeals for the Eleventh Circuit, and in accord with the decision of the Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439 (1983), the Authority dismisses the allegations of the complaint pertaining to the Respondent's failure and refusal to reimburse its employees for their travel and per diem expenses and hereby vacates its prior Order in this regard. Accordingly, the Authority shall issue the following Order and require that the accompanying Notice To All Employees be posted in this matter.

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 Florida National Guard, Jacksonville, Florida, shall:

1. Cease and desist from:

(a) Failing and refusing to provide Ronald Meier, or any Agency employee, official time for time engaged in representing the National Association of Government Employees, Local R5-91, the employees' exclusive representative, during Union-Agency negotiations of a collective bargaining agreement or attendance at an impasse proceeding, equal to what an employee engaged in official Agency business would be entitled.

(b) In any like or related manner interfering with, restraining, or coercing 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 Union representative Ronald Meier official time of 7 3/4 hours per day for the performance of his representational duties on August 22 and 23, 1979, and adjust the annual leave charged to him for both days accordingly.

(b) Post at all of its offices in Jacksonville, Florida where unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt to such forms, they shall be signed by the Adjutant General, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 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 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 FURTHER ORDERED that the complaint in Case No. 4-CA-300 be, and it hereby is, dismissed insofar as it alleges a violation of section 7116(a)(1), (6), and (8) of the Statute based on the failure and refusal to reimburse employee Ronald L. Meier for his travel and per diem expenses.

Issued, Washington, D.C., August 9, 1984

Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 to Ronald Meier, or any Agency employee, official time for time engaged in representing the National Association of Government Employees, Local R5-91, the employees' exclusive representative, during Union-Agency negotiations of a collective bargaining agreement or attendance at an impasse proceeding, equal to what an employee engaged in official Agency business would be entitled.

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 provide Union representative Ronald Meier official time of 7 3/4 hours per day for the performance of his representational duties on August 22 and 23, 1979, and adjust the annual leave charged to him for both days accordingly. (Agency or Activity) By: (Signature)

Dated: . . .

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 question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region IV, whose address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, GA 30309, and whose telephone number is (404) 881-2324.