Customs Service Region IX and National Treasury Employees Union (Authority decision, August 4, 1982)

Final FLRA decision, later vacated. After judicial review, the Authority vacated this reimbursement violation and remedy and dismissed the remaining complaint.

Plain-English summary

NTEU challenged Customs’ refusal to reimburse union representatives for travel and per diem during local supplemental bargaining and impact bargaining. The Authority dismissed the supplemental-bargaining allegations because the statutory official-time provision did not cover negotiations on a local supplement to a master agreement. It found a violation for refusing expenses during impact bargaining and ordered reimbursement and a notice. There was no judge’s decision under review. A court later vacated this reimbursement order; on remand the Authority dismissed the remaining allegations and removed the earlier remedy.

Decision snapshot

• Authority: 5 U.S.C. § 7131(a).
• Outcome: Reimbursement violation found here; later vacated and the remaining complaint dismissed.
• Key point: The later order dismissed the remaining reimbursement allegations.

Full text (FLRA public release)

[ v09 p779 ]

09:0779(98)CA

The decision of the Authority follows:

9 FLRA No. 98

U.S. DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE, REGION IX
CHICAGO, ILLINOIS
Respondent

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case Nos. 5-CA-1033
5-CA-1183

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.

UPON CONSIDERATION OF THE ENTIRE RECORD IN THESE CONSOLIDATED CASES,
INCLUDING THE PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:

THE COMPLAINT IN CASE NO. 5-CA-1033 ALLEGES THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BY ITS REFUSAL TO
REIMBURSE EMPLOYEES JOHN SCHMAL, JAMES SWADER AND ARMAND KELZENBERG FOR
TRAVEL AND PER DIEM EXPENSES INCURRED IN CONNECTION WITH REPRESENTING
THE UNION IN NEGOTIATIONS OF A LOCAL AGREEMENT TO SUPPLEMENT A MASTER
AGREEMENT CONDUCTED ON OCTOBER 14 AND 15 AND NOVEMBER 12, 13 AND 14,
1980; JAMES SWADER AND ARMAND KELZENBERG FOR TRAVEL AND PER DIEM
EXPENSES INCURRED IN CONNECTION WITH REPRESENTING THE UNION IN IMPACT
BARGAINING CONDUCTED ON FEBRUARY 9, 10, 11 AND 12, 1981 AND FEBRUARY 25
AND 26, 1981; AND JAMES BYRON FOR TRAVEL AND PER DIEM EXPENSES INCURRED
IN CONNECTION WITH REPRESENTING THE UNION IN NEGOTIATIONS OF A LOCAL
AGREEMENT TO SUPPLEMENT A MASTER AGREEMENT CONDUCTED ON NOVEMBER 12, 13
AND 14, 1980. THE COMPLAINT IN CASE NO. 5-CA-1183 ALLEGES THAT THE
RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY
ITS REFUSAL TO REIMBURSE EMPLOYEE JAMES SWADER FOR TRAVEL AND PER DIEM
EXPENSES INCURRED IN CONNECTION WITH REPRESENTING THE UNION IN
NEGOTIATIONS OF A LOCAL AGREEMENT TO SUPPLEMENT A MASTER AGREEMENT
CONDUCTED ON DECEMBER 8, 9 AND 10, 1980. SPECIFICALLY, THE RESPONDENT'S
CONDUCT, AS NOTED ABOVE, IS ALLEGED TO CONSTITUTE A FAILURE TO COMPLY
WITH SECTION 7131(A) OF THE STATUTE IN VIOLATION OF SECTION 7116(A)(1)
AND (8) AND TO CONSTITUTE A PATENT BREACH OF THE PARTIES' NEGOTIATED
AGREEMENT IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.

SUBSEQUENT TO THE ISSUANCE OF THE COMPLAINTS HEREIN, THE AUTHORITY
ISSUED INTERPRETATION AND GUIDANCE, 7 FLRA NO. 105(1982), IN WHICH THE
AUTHORITY HELD THAT SECTION 7131(A) OF THE STATUTE /1/ WHICH AUTHORIZES
OFFICIAL TIME TO EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN
THE NEGOTIATION OF A COLLECTIVE BARGAINING AN EXCLUSIVE REPRESENTATIVE
IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT DOES NOT APPLY
TO THE NEGOTIATION OF A LOCAL AGREEMENT WHICH SUPPLEMENTS A NATIONAL OR
CONTROLLING (MASTER) AGREEMENT. BASED ON THAT INTERPRETATION AND
GUIDANCE, THE RESPONDENT FILED A MOTION TO DISMISS IN ITS ENTIRETY THE
COMPLAINT IN CASE NO. 5-CA-1183 (THE ALLEGATIONS OF WHICH RELATE SOLELY
TO SUPPLEMENTAL BARGAINING) AND THOSE ALLEGATIONS OF THE COMPLAINT IN
CASE NO. 5-CA-1033 WHICH RELATE SOLELY TO SUPPLEMENT BARGAINING. THE
GENERAL COUNSEL SPECIFICALLY DOES NOT OPPOSE THE RESPONDENT'S MOTION.
THE AUTHORITY HEREBY GRANTS THE RESPONDENT'S MOTION TO DISMISS THE
COMPLAINT IN CASE NO. 5-CA-1183 AND THOSE ALLEGATIONS OF THE COMPLAINT
IN CASE NO. 5-CA-1033 WHICH RELATE SOLELY TO SUPPLEMENTAL BARGAINING FOR
THE REASONS MORE FULLY STATED IN INTERPRETATION AND GUIDANCE. /2/

WITH RESPECT TO THOSE ALLEGATIONS OF THE COMPLAINT IN CASE NO.
5-CA-1033 WHICH ARE RELATED SOLELY TO IMPACT BARGAINING, THE FACTS AND
POSITIONS OF THE PARTIES ARE SUBSTANTIALLY IDENTICAL TO THOSE INVOLVED
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). THUS, FOR THE
REASONS FULLY STATED IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, THE
AUTHORITY FINDS THAT THE RESPONDENT HEREIN HAS FAILED AND REFUSED TO
COMPLY WITH SECTION 7131(A) OF THE STATUTE AND THEREFORE HAS VIOLATED
SECTION 7116(A)(1) AND (8) OF THE STATUTE. /3/

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, REGION IX,
CHICAGO, ILLINOIS, SHALL:

1. CEASE AND DESIST FROM:

(A) FAILING AND REFUSING TO PROVIDE TRAVEL AND PER DIEM EXPENSES TO
EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG INCURRED IN CONNECTION
WITH
THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE
STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
EMPLOYEES UNION IN IMPACT BARGAINING.

(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) REIMBURSE EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG, BASED
UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR TRAVEL AND PER DIEM
EXPENSES INCURRED IN CONNECTION WITH THEIR PARTICIPATION, PURSUANT TO
SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE
NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, IN IMPACT BARGAINING.

(B) POST AT ITS CHICAGO REGIONAL FACILITIES COPIES OF THE ATTACHED
NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER AND SHALL BE
POSTED AND MAINTAINED 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 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 V, 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. 5 CA-1183 AND
THOSE ALLEGATIONS OF THE COMPLAINT IN CASE NO. 5-CA-1033 RELATED TO
SUPPLEMENTAL BARGAINING AND PATENT BREACH, BE, AND THEY HEREBY ARE,
DISMISSED IN THEIR ENTIRETY.

ISSUED, WASHINGTON, D.C., AUGUST 4, 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 FAIL OR REFUSE TO PROVIDE TRAVEL AND PER DIEM EXPENSES TO
EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG INCURRED IN CONNECTION
WITH
THEIR PARTICIPATION ON OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE
STATUTE, AS DESIGNATED REPRESENTATIVES OF THE NATIONAL TREASURY
EMPLOYEES UNION IN IMPACT BARGAINING.

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 REIMBURSE EMPLOYEES JAMES SWADER AND ARMAND KELZENBERG, BASED
UPON THEIR PREVIOUSLY SUBMITTED VOUCHERS, FOR TRAVEL AND PER DIEM
EXPENSES INCURRED IN CONNECTION WITH THEIR PARTICIPATION, PURSUANT TO
SECTION 7131(A) OF THE STATUTE, AS DESIGNATED REPRESENTATIVES OF THE
NATIONAL TREASURY EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, IN IMPACT BARGAINING.

(AGENCY OR ACTIVITY)

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 THIS NOTICE, OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
SUITE 1359-A, 175 W. JACKSON BLVD., CHICAGO, ILLINOIS 60604, AND WHOSE
TELEPHONE NUMBER IS: (312) 353-0139.

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

/1/ SECTION 7131(A) STATES, IN RELEVANT PART, AS FOLLOWS:

SEC. 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.

/2/ IN GRANTING THE RESPONDENT'S MOTION, THE AUTHORITY NOTES WITH
REGARD TO THE GENERAL COUNSEL'S PATENT BREACH ARGUMENT IN BOTH CASES
THAT AS THE CONTRACT CLAUSES ALLEGEDLY BREACHED WERE TIMELY DISAPPROVED
WITHIN THE MEANING OF SECTION 7114(C) OF THE STATUTE BY "THE HEAD OF THE
AGENCY," THE CLAUSES DID NOT GO INTO EFFECT WITH THE REST OF THE
AGREEMENT AND MANAGEMENT WAS UNDER NO OBLIGATION TO HONOR THEM.

/3/ FOR THE REASONS SET FORTH IN N. 2 THE AUTHORITY FINDS NO
VIOLATION OF SECTION 7116(A)(5).