Environmental Protection Agency and NFFE Local 1907 (Authority decision, September 24, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. 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

NFFE representative Joe Thomas sought travel and per diem for collective bargaining sessions. EPA headquarters directed Region IV not to authorize reimbursement. The Authority found that headquarters violated the statutory official-time entitlement and ordered it to pay the expenses and post a notice. It dismissed the allegation against Region IV because the regional office had to follow the headquarters directive.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1).
• Outcome: Violation found against EPA headquarters; regional-office allegation dismissed.
• Key point: The agency that directed the denial bore responsibility for the travel violation.

Full text (FLRA public release)

[ v10 p151 ]

10:0151(30)CA

The decision of the Authority follows:

10 FLRA No. 30

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, WASHINGTON, D.C. AND
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, REGION IV, ATLANTA, GEORGIA
Respondents

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1907
Charging Party

Case No. 4-CA-663

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.

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 BOTH RESPONDENTS VIOLATED SECTION
7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE) WHEN THEY FAILED TO COMPLY WITH SECTION 7131(A) OF
THE STATUTE BY REFUSING TO REIMBURSE EMPLOYEE JOE S. THOMAS FOR HIS
TRAVEL AND PER DIEM EXPENSES INCURRED WHILE IN DUTY STATUS AS THE
DESIGNATED REPRESENTATIVE OF THE UNION IN CONNECTION WITH COLLECTIVE
BARGAINING NEGOTIATIONS. /1/

THE RESPONDENT AGENCY'S TRAVEL REGULATIONS REQUIRE THAT A TRAVEL
AUTHORIZATION MUST BE ISSUED IN ORDER TO REIMBURSE AN EMPLOYEE FOR
PROSPECTIVE TRAVEL AND PER DIEM EXPENSES. THOMAS' REQUEST FOR SUCH AN
AUTHORIZATION WAS REFUSED BY THE RESPONDENT ACTIVITY BASED UPON THE
DIRECTION OF THE RESPONDENT AGENCY. THE PARTIES AGREE THAT THOMAS
PARTICIPATED IN NEGOTIATIONS ON OCTOBER 7, 8, 21, 22, 23, 28, 29 AND 30,
NOVEMBER 12, 13, 18, 19, 20 AND 25, AND DECEMBER 2, 1980, AND THAT HE
TRAVELED FROM HIS RESIDENCE TO THE NEGOTIATING SITE.

THE ISSUE HEREIN IS SUBSTANTIALLY IDENTICAL TO THAT FOUND 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). /2/ FOR THE REASONS SET FORTH
IN DETAIL IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, THE AUTHORITY
FINDS THAT THE RESPONDENT AGENCY VIOLATED SECTION 7116(A)(1) AND (8) OF
THE STATUTE BY ITS DIRECTION TO THE ACTIVITY NOT TO AUTHORIZE TRAVEL AND
PER DIEM FOR THOMAS, THEREBY PREVENTING THE ACTIVITY FROM COMPLYING WITH
SECTION 7131(A) OF THE STATUTE. FURTHER, THE AUTHORITY FINDS THAT THE
ACTIVITY HAD NO CHOICE BUT TO FOLLOW THE DIRECTIVE OF THE AGENCY AND
THUS DID NOT ITSELF VIOLATE THE STATUTE. /3/ THUS, THE AUTHORITY SHALL
ORDER THE RESPONDENT AGENCY TO INSTITUTE APPROPRIATE REMEDIAL ACTION AND
SHALL ORDER THE COMPLAINT DISMISSED INSOFAR AS IT ALLEGES A VIOLATION OF
THE STATUTE BY THE RESPONDENT ACTIVITY.

ORDER /4/

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C., SHALL:

1. CEASE AND DESIST FROM:

(A) DIRECTING THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
ATLANTA, GEORGIA, TO REFUSE

TO AUTHORIZE PAYMENT FOR PROPERLY DOCUMENTED TRAVEL AND PER DIEM
EXPENSES TO BE INCURRED BY

EMPLOYEES AS A RESULT OF PARTICIPATION PURSUANT TO SECTION 7131(A) OF
THE STATUTE AS DULY

DESIGNATED REPRESENTATIVES OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1907, THE

EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN CONNECTION WITH NEGOTIATION
OF A COLLECTIVE BARGAINING

AGREEMENT.

(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) DIRECT THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA,
GEORGIA, UPON THE

FILING OF A PROPERLY DOCUMENTED VOUCHER, TO REIMBURSE EMPLOYEE JOE S.
THOMAS FOR HIS PER DIEM

AND TRAVEL EXPENSES INCURRED AS A RESULT OF PARTICIPATION PURSUANT TO
SECTION 7131(A) OF THE

STATUTE AS THE DESIGNATED REPRESENTATIVE OF THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES,

LOCAL 1907, DURING THE NEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT.

(B) POST AT ITS FACILITIES IN THE OFFICE OF THE ADMINISTRATOR,
ENVIRONMENTAL PROTECTION

AGENCY, WASHINGTON, D.C., AND IN REGION IV, ATLANTA, GEORGIA, 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 ADMINISTRATOR OF THE ENVIRONMENTAL
PROTECTION AGENCY, WASHINGTON,

D.C., OR HER DESIGNEE AND SHALL BE POSTED AND MAINTAINED FOR 60
CONSECUTIVE DAYS THEREAFTER,

IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES ARE

CUSTOMARILY POSTED. THE ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH 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 HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO.
4-CA-663, INSOFAR AS IT ALLEGES A VIOLATION OF SECTION 7116(A)(1) AND
(8) OF THE STATUTE BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
REGION IV, ATLANTA, GEORGIA, BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982

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 DIRECT THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
ATLANTA, GEORGIA, TO REFUSE TO AUTHORIZE PAYMENT FOR PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES TO BE INCURRED BY EMPLOYEES AS A RESULT OF
PARTICIPATION PURSUANT TO SECTION 7131(A) OF THE STATUTE AS DULY
DESIGNATED REPRESENTATIVES OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1907, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN
CONNECTION WITH THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.

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 DIRECT THE ENVIRONMENTAL PROTECTION AGENCY, REGION IV,
ATLANTA GEORGIA, UPON THE FILING OF A PROPERLY DOCUMENTED VOUCHER, TO
REIMBURSE EMPLOYEE JOE S. THOMAS FOR HIS PER DIEM AND TRAVEL EXPENSES
INCURRED AS A RESULT OF HIS PARTICIPATION PURSUANT TO SECTION 7131(A) OF
THE STATUTE AS THE DESIGNATED REPRESENTATIVE OF THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1907, DURING THE NEGOTIATION OF A COLLECTIVE
BARGAINING AGREEMENT.

(AGENCY)

DATED: . . . BY: . . .

(SIGNATURE)

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 THE NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
SUITE 501 NORTH WING, 1776 PEACHTREE STREET, N.W., ATLANTA, GEORGIA
30309 AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.

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

/1/ THE RESPONDENTS ALLEGE THAT BECAUSE THE UNION HAD FILED A SIMILAR
CHARGE (CASE NO. 4-CA-637) AND THEN WITHDREW IT WITH THE APPROVAL OF THE
REGIONAL DIRECTOR, THE INSTANT COMPLAINT SHOULD BE DISMISSED AS MOOT.
HOWEVER, A WITHDRAWAL IS PROCEDURAL IN NATURE AND DOES NOT BAR A
CHARGING PARTY FROM TIMELY REFILING. ALSO WITHOUT MERIT IS THE
RESPONDENTS' CONTENTION THAT THE CHARGE HEREIN WAS FILED PREMATURELY
BECAUSE THOMAS AFTER THE FACT HAD NOT SUBMITTED A VOUCHER SEEKING
REIMBURSEMENT OF HIS EXPENSES. WHERE, AS HERE, AN AGENCY REFUSES TO
AUTHORIZE REIMBURSEMENT OF EXPENSES, THE AUTHORITY WILL NOT REQUIRE THE
SUBSEQUENT PERFORMANCE OF A FUTILE ACT.

/2/ BUT SEE DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK
(ALBANY, NEW YORK), 7 FLRA NO. 69(1981), REVERSED SUB NOM. DIVISION OF
MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, AND DEPARTMENT OF DEFENSE
V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 82-4036 (2D CIR. JUNE 28,
1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION
ADMINISTRATION, AGRICULTURAL RESEARCH, NORTH CENTRAL REGION,
DAKOTAS-ALASKA AREA, 6 FLRA NO. 45 (1981), REVERSED SUB NOM. UNITED
STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY,
NO. 81-1948 (8TH CIR. AUGUST 9, 1982).

/3/ DEPARTMENT OF THE INTERIOR, WATER AND POWER RESOURCES SERVICE,
GRAND COULEE PROJECT, GRAND COULEE, WASHINGTON, 9 FLRA NO. 46(1982).

/4/ THE RESPONDENTS' CONTENTION THAT THOMAS WAS DUE NO PER DIEM MORE
PROPERLY BE RAISED DURING THE COMPLIANCE STAGE OF THIS PROCEEDING.