U.S. Customs Service, Region IX, Chicago, Illinois and National Treasury Employees Union (Authority decision, September 30, 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

Customs refused to reimburse employee John Schmal for travel and per diem incurred while representing NTEU in impact bargaining. The Authority found that the denial violated the statutory official-time entitlement and ordered reimbursement and a posted notice. It dismissed a separate allegation that the refusal breached a locally agreed contract clause, because the agency head had timely disapproved that clause.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1).
• Outcome: Travel-reimbursement violation found; contract-breach allegation dismissed.
• Key point: The statutory entitlement supported reimbursement despite the disapproved local contract clause.

Full text (FLRA public release)

[ v10 p231 ]

10:0231(44)CA

The decision of the Authority follows:

10 FLRA No. 44

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

and

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 5-CA-1331

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

UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, THE AUTHORITY FINDS:

THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) BY ITS REFUSAL TO REIMBURSE EMPLOYEE JOHN SCHMAL FOR HIS TRAVEL
AND PER DIEM EXPENSES INCURRED IN CONNECTION WITH REPRESENTING THE UNION
IN IMPACT BARGAINING CONDUCTED ON APRIL 28, 1981. /1/

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). /2/
THUS, FOR THE REASONS SET FORTH IN BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, THE AUTHORITY FINDS THAT THE RESPONDENT 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
EMPLOYEE JOHN SCHMAL

INCURRED IN CONNECTION WITH HIS PARTICIPATION ON OFFICIAL TIME,
PURSUANT TO SECTION 7131(A) OF

THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, AS A
DESIGNATED REPRESENTATIVE OF THE

NATIONAL TREASURY EMPLOYEES UNION, THE EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES, 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 FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS

STATUTE.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
   STATUTE:

(A) REIMBURSE EMPLOYEE JOHN SCHMAL, BASED UPON HIS PREVIOUSLY
SUBMITTED VOUCHER, FOR HIS

TRAVEL AND PER DIEM EXPENSES INCURRED IN CONNECTION WITH HIS
PARTICIPATION, PURSUANT TO

SECTION 7131(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, AS A DESIGNATED

REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION, THE
EXCLUSIVE REPRESENTATIVE OF ITS

EMPLOYEES 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, OR HIS DESIGNEE, 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 SECTION 7116(A)(1) AND (5) ALLEGATION
OF THE COMPLAINT BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 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
EMPLOYEE JOHN SCHMAL INCURRED IN CONNECTION WITH HIS PARTICIPATION ON
OFFICIAL TIME, PURSUANT TO SECTION 7131(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, AS A DESIGNATED REPRESENTATIVE OF
THE NATIONAL TREASURY EMPLOYEES UNION, OUR EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, 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
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.

WE WILL REIMBURSE EMPLOYEE JOHN SCHMAL, BASED UPON HIS PREVIOUSLY
SUBMITTED VOUCHER, FOR HIS TRAVEL AND PER DIEM EXPENSES INCURRED IN
CONNECTION WITH HIS PARTICIPATION, PURSUANT TO SECTION 7131(A) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, AS DESIGNATED
REPRESENTATIVE 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/ THE COMPLAINT ALSO ALLEGES THAT RESPONDENT'S REFUSAL WAS A
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE AS IT CONSTITUTED
A PATENT BREACH OF A CONTRACT CLAUSE AGREED UPON AT THE LOCAL LEVEL.
NOTING PARTICULARLY THAT THE CONTRACT CLAUSE IN QUESTION WAS TIMELY
DISAPPROVED BY THE HEAD OF THE AGENCY IN ACCORDANCE WITH SECTION 7114(C)
OF THE STATUTE, THE AUTHORITY FINDS THIS ALLEGATION TO BE WITHOUT MERIT.

/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 V. FEDERAL LABOR RELATIONS AUTHORITY, 683
F.2D 45 (2D CIR. 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/ ACCORD, U.S. DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE,
REGION IX, CHICAGO, ILLINOIS, 9 FLRA NO. 98(1982).