10:0281(53)CA - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1982 FLRAdec CA
[ v10 p281 ]
10:0281(53)CA
The decision of the Authority follows:
10 FLRA No. 53 DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO Charging Party Case Nos. 5-CA-470 5-CA-517 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE ABOVE-ENTITLED CONSOLIDATED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN OF THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THE JUDGE ALSO FOUND THAT CERTAIN ALLEGATIONS OF THE COMPLAINT SHOULD BE DISMISSED IN THEIR ENTIRETY. THEREAFTER, BOTH THE RESPONDENT AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND THE RESPONDENT FILED AN OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS. PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARINGS AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASES, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/ IN ADOPTING THE JUDGE'S CONCLUSION THAT RESPONDENT'S REFUSAL TO AUTHORIZE PAYMENT OF TRAVEL AND PER DIEM EXPENSES FOR THE UNION'S DESIGNATED NEGOTIATORS FOR MID-TERM BARGAINING WAS VIOLATIVE OF THE STATUTE, THE AUTHORITY FINDS WITHOUT MERIT THE RESPONDENT'S DEFENSE THAT, ASSUMING IT HAD AN OBLIGATION UNDER SECTION 7131(A) OF THE STATUTE TO PROVIDE PER DIEM AND TRAVEL EXPENSES, IT COULD REQUIRE JUSTIFICATION FROM THE UNION FOR THE SELECTION OF OUT-OF-TOWN NEGOTIATORS. THUS, A UNION CLEARLY HAS THE STATUTORY PREROGATIVE TO DESIGNATE ITS OWN REPRESENTATIVES IN NEGOTIATIONS. /2/ ORDER PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE AUTHORITY AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE TO LYNN TOMPKINS, WILLIAM SHOELL AND JOSEPH SCHUCHARDT OFFICIAL TIME, INCLUDING NECESSARY TRAVEL AND PER DIEM EXPENSES, IN COMPLIANCE WITH SECTION 7131(A) OF THE STATUTE, FOR THE TIME THEY WERE ENGAGED IN REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING MID-TERM NEGOTIATION. (B) CONDITIONING THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES PURSUANT TO SECTION 7131(A) OF THE STATUTE UPON THE UNION SHOWING JUSTIFICATION FOR THE DESIGNATION OF ITS NEGOTIATORS. (C) 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) POST AT ITS VARIOUS INSTALLATIONS OF THE AIR FORCE LOGISTICS COMMAND WHEREIN UNIT EMPLOYEES ARE LOCATED 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 AN AUTHORIZED REPRESENTATIVE OF THE RESPONDENT AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN BOARDS AND ALL OTHER 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. (B) 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 HEREBY FURTHER ORDERED THAT THE REMAINING ALLEGATIONS OF THE COMPLAINT IN CASE NOS. 5-CA-470 AND 5-CA517 BE, AND THEY HEREBY ARE, 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 TO LYNN TOMPKINS, WILLIAM SHOELL AND JOSEPH SCHUCHARDT OFFICIAL TIME, INCLUDING NECESSARY TRAVEL AND PER DIEM EXPENSES, IN COMPLIANCE WITH SECTION 7131(A) OF THE STATUTE, FOR THE TIME THEY WERE ENGAGED IN REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING MID-TERM NEGOTIATIONS. WE WILL NOT CONDITION THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY OUR EMPLOYEES PURSUANT TO SECTION 7131(A) OF THE STATUTE, UPON THE UNION SHOWING JUSTIFICATION FOR THE DESIGNATION OF ITS NEGOTIATORS. 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. (AGENCY OR ACTIVITY) DATE: 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 A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS 60604, AND WHOSE TELEPHONE NUMBER IS (312) 866-3468. -------------------- ALJ$ DECISION FOLLOWS -------------------- LIEUTENANT COLONEL FRANKLIN E. WRIGHT FOR THE RESPONDENT SHEILA A. REILLY, ESQUIRE FOR THE GENERAL COUNSEL APPEARING BY BRIEF ONLY: JOHN W. MULHOLLAND FOR THE CHARGING PARTY BEFORE: WILLIAM B. DEVANEY ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS PROCEEDING UNDER THE FEDERAL SERVICES LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C, 7101 ET SEQ. /3/ AND THE FINAL RULES AND REGULATIONS ISSUED THEREUNDER, FEDERAL REGISTER, VOL. 45, NO. 12, JANUARY 29, 1980, 5 C.F.R. SEC. 2415.1 ET SEQ., WAS INITIATED BY A CHARGE FILED ON APRIL 3, 1980, IN CASE NO. 5-CA-470, ALLEGING VIOLATIONS OF SECS. 16(A)(1), (5) AND (8) OF THE STATUTE (G.C. EXH. 1(A)), AND BY A CHARGE FILED ON MAY 7, 1980, IN CASE NO. 5-CA-517, ALSO ALLEGING VIOLATIONS OF SECS. 16(A)(1), (5) AND (8) OF THE STATUTE (G.C. EXH. 1(C)). ON JULY 15, 1980, AN ORDER CONSOLIDATING CASES, COMPLAINT AND NOTICE OF HEARING ISSUED (G.C. EXH. 1(E)), WHICH SET THE DATE OF HEARING FOR AUGUST 21, 1980. ON AUGUST 11, 1980, AN ORDER RESCHEDULING THE HEARING FOR OCTOBER 1, 1980, ISSUED (G.C. EXH. 1(I)), PURSUANT TO WHICH A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED IN DAYTON, OHIO, ON OCTOBER 1, 1980. BOTH PARTIES WERE REPRESENTED, WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN; AND THE PARTIES WERE AFFORDED OPPORTUNITY TO PRESENT ORAL ARGUMENT AT THE CONCLUSION OF THE TESTIMONY. AT THE CLOSE OF THE HEARING, BECAUSE OF THE SCHEDULED ABSENCE OF COUNSEL FOR RESPONDENT OUT OF THE COUNTRY, NOVEMBER 18, 1980, WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS AND THE PARTIES, AS WELL AS THE CHARGING PARTY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, TIMELY MAILED VERY HELPFUL BRIEFS, RECEIVED ON OR BEFORE NOVEMBER 24, 1980, WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, /4/ INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS: FINDINGS /5/ 1. PRIOR TO 1978, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (HEREINAFTER AFGE) REPRESENTED APPROXIMATELY TWENTY-ONE BARGAINING UNITS AT SEVEN INSTALLATIONS OF THE AIR FORCE LOGISTICS COMMAND. ON JANUARY 13, 1978, THESE UNITS WERE CONSOLIDATED INTO A SINGLE BARGAINING UNIT, WHICH ENCOMPASSES ABOUT 70,000 CIVILIAN EMPLOYEES, AND THE NATIONAL OFFICE OF AFGE IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE. COUNCIL 214 IS THE AGENT OF AFGE'S NATIONAL OFFICE AND THE PRESIDENT OF COUNCIL 214 AT ALL TIMES MATERIAL WAS LOCATED AT WARNER ROBINS, GEORGIA. THE UNIT INCLUDES AFLC FACILITIES AT HILL AIR FORCE BASE, OGDEN, UTAH; KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS; MCCELLAN AIR FORCE BASE, SACRAMENTO, CALIFORNIA; NEWARK AIR FORCE STATION, NEWARK, OHIO, ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA; TINKER AIR FORCE BASE, OKLAHOMA CITY, OKLAHOMA; WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO; DETACHMENT 21, AFCMC, AFPRO, BOEING, WICHITA, KANSAS; AND CATALOGUING AND STANDARDIZATION OFFICE, BATTLE CREEK, MICHIGAN. 2. FROM JANUARY 13, 1978, RESPONDENT NOTIFIED THE NATIONAL OFFICE OF AFGE AND THE PRESIDENT OF COUNCIL 214 (HEREINAFTER, ALSO REFERRED TO AS "UNION") WITH RESPECT TO MID-TERM CHANGES; HOWEVER, DELAY IN THE COMMENCEMENT OF NEGOTIATIONS RESULTED EVEN THROUGH AFGE, IF IT DEMANDED BARGAINING, WOULD DESIGNATE AN OFFICIAL OF LOCAL 1138, LOCATED AT WRIGHT-PATTERSON AFB, TO CONDUCT SUCH MID-TERM BARGAINING. BECAUSE OF SUCH DELAYS, RESPONDENT CONTACTED MR. BLAYLOCK, NATIONAL PRESIDENT OF AFGE, AND REQUESTED THAT AFGE PROVIDE SOMEONE AT WRIGHT-PATTERSON WITH WHOM RESPONDENT COULD DEAL CONCERNING MID-TERM PROPOSALS. RESPONDENT OFFERED OFFICE SPACE AND OTHER FACILITIES AND AFGE ESTABLISHED THE OFFICE OF EXECUTIVE DIRECTOR, COUNCIL 214, AT WRIGHT-PATTERSON AND MR. PAUL KETCHERSIDE WAS APPOINTED EXECUTIVE DIRECTOR IN JANUARY, 1980. (SEE, ALSO, RES. EXH. 3). 3. FROM JANUARY 13, 1978, TO MARCH 26, 1980, UNION NEGOTIATORS DESIGNATED FOR MID-TERM NEGOTIATIONS WERE EXCLUSIVELY OFFICIALS OF LOCAL 1138 OR MR. KETCHERSIDE. 4. ON FEBRUARY 22, 1980, RESPONDENT NOTIFIED THE UNION OF A PROTOTYPE TEST OF AN ACTUAL HOUR ACCOUNTING SYSTEM FOR THE REPORTING AND ACCOUNTING OF DIRECT LABOR HOURS EXPENDED ON THE REPAIR OF CERTAIN SUBASSEMBLIES (G.C. EXH. 12). THE PROTOTYPE SERVICE TEST INVOLVED ONLY A SMALL AREA (ABOUT EIGHTY OR NINETY EMPLOYEES AT EACH OF THE THREE LOCATIONS) OF THE DIRECTORATE OF MAINTENANCE AT HILL, KELLY AND ROBINS AIR FORCE BASES; HOWEVER, IF THE SYSTEM WERE ADOPTED, IT WOULD AFFECT THE MAINTENANCE EMPLOYEES WHO MAKE UP ABOUT 50 PER CENT OF THE BARGAINING UNIT, I.E., ROUGHLY 35,000 EMPLOYEES. ON FEBRUARY 26, 1980, MR. KETCHERSIDE DEMANDED BARGAINING ON THE PROTOTYPE TEST AND AGREED TO A BRIEFING SCHEDULED FOR MARCH 6 (G.S. EXH. 13). A BRIEFING WAS GIVEN TO MR. KETCHERSIDE AND TO MR. MULHOLLAND, DIRECTOR, LABOR-MANAGEMENT SERVICES FOR THE NATIONAL OFFICE, AFGE, AND OTHER BRIEFINGS WERE GIVEN TO OFFICIALS OF THE LOCAL UNIONS AT THE THREE BASES (HILL, KELLY, AND ROBINS) WHICH WERE TO PARTICIPATE IN THE TEST. MR. KETCHERSIDE WAS ASKED TO PROVIDE PROPOSALS ABOUT WHICH HE WISHED TO BARGAIN AND HE TENTATIVELY AGREED TO DO SO BY MARCH 21; HOWEVER, NO PROPOSALS WERE PROVIDED. INSTEAD, ON MARCH 26, MR. KETCHERSIDE NAMED AS UNION NEGOTIATORS THE FOLLOWING PERSONS: MR. WILLIAM SHOELL, HILL AFB, UTAH; AND MR. JOSEPH SCHUCHARDT, KELLY AFB, TEXAS. MR. KETCHERSIDE DEMANDED THAT TRAVEL AND PER DIEM EXPENSES BE PROVIDED THESE EMPLOYEES (G.C. EXH. 15). ON FEBRUARY 27, 1980, MR. KETCHERSIDE HAD REQUESTED THAT RESPONDENT GIVE HIM ITS OFFICIAL POSITION IN REGARD TO THE FEDERAL LABOR RELATIONS AUTHORITY'S INTERPRETATION AND GUIDANCE, CASE NOS. O-PS-3 AND O-PS-6, ISSUED DECEMBER 19, 1979 (G.C. EXH. 17); AND, ON MARCH 25, 1980, RESPONDENT REPLIED, STATING, IN PART, AS FOLLOWS: "WE BELIEVE THE SUBJECT OF TRANSPORTATION AND PER DIEM FOR UNION NEGOTIATORS IS NEGOTIABLE. WHETHER THE EMPLOYER WOULD PAY TRAVEL AND PER DIEM MUST BE EVALUATED ON THE CIRCUMSTANCES OF A PARTICULAR REQUEST AND THE AVAILABILITY OF FUNDS." (G.C. EXH. 18). IN HIS LETTER OF MARCH 26, 1980, IN WHICH HE DESIGNATED MESSRS. SHOELL AND SCHUCHARDT AS UNION NEGOTIATORS AND DEMANDED PER DIEM AND TRAVEL PAY FOR THEM, MR. KETCHERSIDE REFERRED TO RESPONDENT'S LETTER OF MARCH 25 WHICH HE FOUND "INTERESTING" BUT ASSERTED, "THAT THIS PROVISION (5 U.S.C. 7131) . . . HAS BEEN INTERPRETED BY THE FEDERAL LABOR RELATIONS AUTHORITY AS ENTITLING EMPLOYEES TO TRAVEL AND PER DIEM TO ACCOMPLISH THEIR COLLECTIVE BARGAINING RESPONSIBILITIES. THEREFORE, WE FULLY EXPECT THIS RIGHT TO BE HONORED." (G.C. EXH. 15) ON MARCH 31, 1980, RESPONDENT ADVISED MR. KETCHERSIDE, IN PART, THAT, ". . . TO DATE YOU HAVE NOT SUBMITTED ANY UNION PROPOSALS. "WE DO NOT SEE ANY ADVERSE AFFECT (SIC) ON EMPLOYEES AS A RESULT OF THIS SERVICE TEST. IN THE ABSENCE OF SPECIFIC UNION PROPOSALS, THE EMPLOYER IS PROCEEDING TO INITIATE THE SERVICE TEST ON 1 APRIL 1980." (G.C. EXH. 16). 5. ON FEBRUARY 11, 1980, RESPONDENT INFORMED MR. KETCHERSIDE OF "PROJECT PACER SPAN", COVERING THE CIVIL ENGINEERING ORGANIZATIONS WITHIN AFLC, WITH A TARGET DATE FOR IMPLEMENTATION OF MARCH 11, 1980 (G.C. EXH. 3). THE UNION RESPONDED WITH A REQUEST TO POSTPONE THE DATE OF IMPLEMENTATION AND A DEMAND TO BARGAIN (G.C. EXH. 4). RESPONDENT GRANTED THE UNION'S REQUEST AND APRIL 1 WAS FIXED AS THE DATE FOR IMPLEMENTATION (G.C. EXH. 5). ON MARCH 27, 1980, THE UNION SUBMITTED COUNTER PROPOSALS (G.C. EXH. 7) AND DESIGNATED MR. LYNN TOMPKINS, TINKER AFB, OKLAHOMA, AS THE UNION NEGOTIATOR AND DEMANDED TRAVEL, PER DIEM AND OFFICIAL TIME FOR HIM (G.C. EXH. 8). RESPONDENT RESPONDED BY LETTER DATED APRIL 18, 1980, STATING, IN PART, AS FOLLOWS: " . . . WHILE YOUR REQUEST THAT THE EMPLOYER PROVIDE OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES FOR A UNION NEGOTIATOR FROM OC-ALC IS QUITE CLEAR, YOUR LETTER LACKS SUFFICIENT JUSTIFICATION TO SUPPORT THE EXPENDITURE OF GOVERNMENT FUNDS. . . . . " . . . WE BELIEVE AFGE HAS SUFFICIENT CAPABILITY AT WRIGHT-PATTERSON AFB TO ADEQUATELY REPRESENT THE UNION IN NEGOTIATIONS ON THIS SUBJECT, WITHOUT CAUSING THE EXPENDITURE OF GOVERNMENT TRAVEL FUNDS." (G.C. EXH. 9). BY LETTER DATED APRIL 22, 1980, MR. KETCHERSIDE RESPONDED AND STATED EMPHATICALLY, INTER ALIA, THAT, " . . . THE DESIGNATION OF UNION REPRESENTATIVES AND/OR NEGOTIATORS IS INTERNAL UNION BUSINESS AND THE EMPLOYER CANNOT DICTATE WHO OUR NEGOTIATORS SHALL BE. "YOU SHOULD FURTHER BE ADVISED THAT THE PAYMENT OF TRAVEL, PER DIEM, AND OFFICIAL TIME COSTS IS A STATUTORY ENTITLEMENT AND THE UNION DECLINES TO BARGAIN ON ANY LESSER PROVISION. A REFUSAL BY THE EMPLOYER TO PAY TRAVEL, PER DIEM, AND OFFICIAL TIME WILL BE VIEWED AS A REFUSAL TO BARGAIN. "PLEASE UNDERSTAND THE UNION DESIRES TO PROCEED ON NEGOTIATING ON THE PACER SPAN PLAN FOR CIVIL ENGINEERING AS SOON AS POSSIBLE. A REFUSAL BY THE EMPLOYER TO PROVIDE UNION NEGOTIATORS FOR SUCH NEGOTIATIONS SERVES NO MORE PURPOSE THAN TO DELAY THE NEGOTIATIONS . . . . " (G.C. EXH. 10). BY LETTER DATED APRIL 29, 1980 (G.C. EXH. 11), RESPONDENT ADVISED MR. KETCHERSIDE THAT RESPONDENT HAD NO INTEREST IN WHO THE UNION APPOINTED AS ITS REPRESENTATIVES BUT THAT THE EXPENDITURE OF GOVERNMENT MONIES ON TRAVEL AND PER DIEM EXPENSES REQUIRED JUSTIFICATION IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS ISSUED BY THE DEPARTMENT OF DEFENSE. RESPONDENT FURTHER STATED THAT THE PROJECT PACER SPAN WOULD BE IMPLEMENTED MAY 12, 1980, UNLESS THE UNION MET WITH A REPRESENTATIVE OF RESPONDENT PRIOR TO MAY 12, 1980. THERE WAS NO SUCH MEETING AND PROJECT PACER SPAN WAS IMPLEMENTED ON, OR ABOUT, MAY 12, 1980. CONCLUSIONS RESPONDENT'S POSITION, WHICH, IF THIS WERE A MATTER OF FIRST IMPRESSION, MIGHT BE PERSUASIVE, IS THAT ITS OBLIGATION TO PAY UNION NEGOTIATORS' TRAVEL AND PER DIEM EXPENSES IS SUBJECT TO THE STANDARDS FOR TRAVEL AND PER DIEM AS SET FORTH IN AGENCY REGULATIONS, HERE, JOINT TRAVEL REGULATIONS OF THE DEPARTMENT OF DEFENSE AND AIR FORCE REGULATION 10-7. THUS, RESPONDENT ASSERTS, INTER ALIA, THAT: " . . . THE RESPONDENT . . . MAINTAINS THAT IT MAY REASONABLY, AND INDEED IS REQUIRED TO, APPLY THE STANDARDS FOR TRAVEL AND PER DIEM AUTHORIZATION TO REQUESTS FOR UNION NEGOTIATORS JUST AS IT EVALUATES REQUESTS FOR TRAVEL OF OTHER EMPLOYEES. " . . . THE FACTS OF THIS CASE MAKE CLEAR THAT THE RESPONDENT HAS DONE NOTHING MORE THAN TREAT THE EMPLOYEES DESIGNATED BY THE UNION AS THEIR NEGOTIATORS JUST AS ANY OTHER EMPLOYEE OF THE RESPONDENT. THE JOINT TRAVEL REGULATIONS ARE ISSUED BY THE DEPARTMENT OF DEFENSE AND ARE APPLICABLE THROUGHOUT THE THREE MILITARY DEPARTMENTS. THESE REGULATIONS REQUIRE THAT THE ORDER ISSUING AUTHORITY (I.E., THE PERSON AUTHORIZING THE TRAVEL AND EXPENDITURE OF PER DIEM FUNDS) DETERMINE THAT THE TRIP IS ESSENTIAL, THAT THE MISSION CANNOT BE SATISFACTORILY ACCOMPLISHED BY OTHER MEANS, THAT THE DURATION OF THE TRIP IS NO LONGER THAN NECESSARY, AND THE NUMBER OF PERSONS MAKING THE TRIP IS HELD TO A MINIMUM. FURTHER THE DEPARTMENT OF THE AIR FORCE HAS ISSUED AIR FORCE REGULATIONS 10-7 WHICH HAS SIMILAR REQUIREMENTS INCLUDING A DETERMINATION THAT PERSONNEL IN CLOSE PROXIMITY TO THE TEMPORARY DUTY STATION CANNOT EFFECTIVELY PERFORM THE MISSION . . . . "FROM THE TIME OF THE CONSOLIDATION OF ALL AFGE UNITS IN AFLC INTO A SINGLE BARGAINING UNIT, THE PARTIES HAVE ENGAGED IN MID-TERM BARGAINING AT HQ AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AFB, OHIO. THE UNION'S REPRESENTATIVES AT THESE SESSIONS HAVE BEEN EITHER OFFICIALS OF LOCAL 1138, LOCATED AT WRIGHT-PATTERSON OR MR. PAUL KETCHERSIDE, EXECUTIVE DIRECTOR OF AFGE, COUNCIL 214, WHO WAS PLACED AT WRIGHT-PATTERSON FOR THAT PURPOSE. THUS, WHEN MR. KETCHERSIDE REQUESTED THE PRESENCE OF MR. LYNN TOMPKINS, FROM OKLAHOMA CITY, MR. SHOELL FROM OGDEN, UTAH, AND MR. SCHUCHARDT FROM SAN ANTONIO, TO NEGOTIATE CONCERNING CERTAIN MID-TERM CHANGES, AND DEMANDED THAT RESPONDENT PAY TRAVEL AND PER DIEM EXPENSES OF THESE EMPLOYEES, THE ORDER ISSUING AUTHORITY WAS REQUIRED BY DEPARTMENT OF DEFENSE REGULATIONS TO FIRST MAKE A DETERMINATION THAT THE EXPENDITURE OF THESE FUNDS WAS NECESSARY. WHEN MR. BUXTON REQUESTED JUSTIFICATION, MR. KETCHERSIDE FLATLY REFUSED TO PROVIDE ANY, CLAIMING AN ABSOLUTE RIGHT TO NAME WHOMEVER HE WISHED TO NEGOTIATE ON BEHALF OF THE UNION. HAVING NO BASIS UPON WHICH TO DETERMINE THAT THE PROPOSED TRAVEL WAS NECESSARY, THE ORDER ISSUING AUTHORITY HAD NO CHOICE BUT TO DENY THE REQUEST. "THE UNION, PERHAPS INTENTIONALLY, CONFUSES THE DENIAL OF TRAVEL AND PER DIEM EXPENSES WITH AN ATTEMPT BY MANAGEMENT TO CONTROL WHO THE UNION APPOINTS AS NEGOTIATOR. AS HAS BEEN STATED REPEATEDLY BY MANAGEMENT OFFICIALS, MANAGEMENT DOES NOT CARE WHO IS APPOINTED AS THE UNION NEGOTIATOR. MANAGEMENT STOOD READY TO NEGOTIATE WITH WHOMEVER THE UNION BROUGHT TO THE TABLE. THE ONLY QUESTION WAS WHETHER THE GOVERNMENT WOULD OR COULD PAY THE TRAVEL AND PER DIEM TO GET THAT EMPLOYEE TO THE TABLE. (PARENTHETICALLY, RESPONDENT DID NOT DISPUTE OR CHALLENGE THE PAYMENT OF SUCH EMPLOYEES BY THE ALLOWANCE OF OFFICIAL TIME). . . . . "THE ALTERNATIVE OF NOT APPLYING THE REQUIREMENTS OF THE JOINT TRAVEL REGULATIONS TO UNION NEGOTIATORS WHO ARE AGENCY EMPLOYEES IS CLEARLY NOT A VIABLE ONE. IT WOULD GIVE TO THE UNION A CARTE BLANCHE TO NAME ANY EMPLOYEE ANYWHERE AS ITS REPRESENTATIVE IN NEGOTIATIONS. IT WOULD PERMIT AN UNPRECEDENTED RAID ON THE AGENCY'S BUDGET AT THE WHIM OF UNION OFFICIALS . . . . " (RESPONDENT'S BRIEF, PP. 9-11). BUT, OF COURSE, THIS IS NOT A MATTER OF FIRST IMPRESSION. THE AUTHORITY, IN ITS INTERPRETATION AND GUIDANCE, CASE NOS. O-PS-3 AND O-PS-6, 2 FLRA NO. 31 (1979), CONCLUDED, INTER ALIA, THAT EMPLOYEES WHO ARE ON OFFICIAL TIME UNDER SEC. 31 OF THE STATUTE WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN NEGOTIATIONS, WHETHER NEGOTIATIONS OR RENEGOTIATIONS OF A BASIC AGREEMENT, "ARE ENTITLED TO PAYMENTS FROM AGENCIES FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES." THAT UNION NEGOTIATORS ARE ENTITLED TO TRAVEL AND PER DIEM EXPENSES FOR MID-TERM NEGOTIATIONS WAS SPECIFICALLY AFFIRMED BY THE AUTHORITY IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA , 4 FLRA NO. 40 (1980); SEE, ALSO, FLORIDA NATIONAL GUARD, 5 FLRA NO. 49 (1981). IN ADDITION, THE MATTER HAS BEEN CONSIDERED BY VARIOUS ADMINISTRATIVE LAW JUDGES, SEE, BY WAY OF EXAMPLE, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, WASHINGTON, D.C., AND ITS INDIANAPOLIS, INDIANA AND DALLAS, TEXAS DISTRICTS, 5-CA-593 (JUDGE FRANCIS E. DOWD, MARCH 16, 1981); UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN DISTRICT, ET AL., CASE NOS. 6-CA-636, 6-CA-755, 6-CA-644, 6-CA-746 (JUDGE GARVIN LEE OLIVER, MARCH 16, 1981); INTERNAL REVENUE SERVICE, CASE NOS. 3-CA-331, 3-CA-1231 (JUDGE ELI NASH, JR., MARCH 19, 1981); DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT, CASE NOS. 4-CA-498, 4-CA-561 (JUDGE BURTON S. STERNBURG, MARCH 23, 1981). AS AN ADMINISTRATIVE LAW JUDGE, I AM CONSTRAINED TO FOLLOW THE AUTHORITY'S PRONOUNCEMENTS AND DECISIONS UNTIL SUCH TIME AS THEY ARE OVERRULED BY HIGHER AUTHORITY. INDEED, RESPONDENT RECOGNIZES THAT ITS ASSERTIONS ARE, IN REALITY, ADDRESSED TO THE AUTHORITY, AS IT STATES, IN PART, "THE RESPONDENT URGES THE AUTHORITY TO RECONSIDER ITS INTERPRETATION AND GUIDANCE FOUND IN O-PS-3 AND 6, AND THE IMPLICATIONS IT POSTENDS." (RESPONDENT'S BRIEF, P. 12). I FIND, THEREFORE, THAT RESPONDENT'S REFUSAL TO AUTHORIZE PAYMENT OF TRAVEL AND PER DIEM EXPENSES FOR UNION'S DESIGNATED NEGOTIATORS SHOELL, SCHUCHARDT (ACTUAL HOUR ACCOUNTING PROTOTYPE TEST) AND TOMPKINS (PACER SPAN), CONTRARY TO THE AUTHORITY'S CONSTRUCTION AND INTERPRETATION OF SECTION 31 OF THE STATUTE, THEREBY VIOLATED SECTIONS 16(A)(1) AND (8) OF THE STATUTE. IN ORDER TO INSURE THAT THERE BE NO MISUNDERSTANDING, I FURTHER, SPECIFICALLY, FIND THAT IMPOSITION OF A SHOWING OF NECESSITY AS A CONDITION TO THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES FOR UNION'S DULY DESIGNATED NEGOTIATORS VIOLATED SECTION 31, AND 16(A)(1) AND (8) OF THE STATUTE. I DO NOT FIND, HOWEVER, THAT RESPONDENT REFUSED TO CONSULT OR NEGOTIATE IN VIOLATION OF SECTION 16(A)(5) OF THE STATUTE. THE UNION HAS THE RIGHT TO DESIGNATE ITS NEGOTIATOR, OR NEGOTIATORS, AND ITS NEGOTIATORS ARE ENTITLED TO OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES. RESPONDENT VIOLATED SECTION 16(A)(1) AND (8) BY ITS REFUSAL TO PAY THE UNION'S DESIGNATED NEGOTIATORS TRAVEL AND PER DIEM EXPENSES AS REQUIRED BY SECTION 31 AND THE AUTHORITY'S INTERPRETATION AND GUIDANCE, AND AN APPROPRIATE ORDER WILL BE RECOMMENDED TO REMEDY THIS UNFAIR LABOR PRACTICE; BUT RESPONDENT DID NOT REFUSE TO BARGAIN WITH THE UNION'S DESIGNATED NEGOTIATORS, INDEED, DID NOT CHALLENGE OR DISPUTE THE ENTITLEMENT OF THESE EMPLOYEES TO OFFICIAL TIME FOR NEGOTIATIONS. THE RECORD SHOWS AMPLE NOTICE AND OPPORTUNITY TO BARGAIN WHICH THE UNION FAILED AND REFUSED TO EXERCISE, ALBEIT BECAUSE RESPONDENT REFUSED TO PAY TRAVEL AND PER DIEM EXPENSES. THE RECORD CONTAINS NO EVIDENCE, OR EVEN ASSERTION, THAT THE UNION WAS UNABLE, OR EVEN WOULD HAVE BEEN INCONVENIENCED, BY PROCEEDING WITH BARGAINING AND LITIGATING, IF NECESSARY, RESPONDENT'S LIABILITY FOR THE COST OF TRAVEL AND PER DIEM. THE ACTUAL HOUR ACCOUNTING PROTOTYPE TEST APPEARS TO HAVE BEEN A MANAGEMENT RIGHT PURSUANT TO SECTION 6(A) OF THE STATUTE. NEVERTHELESS, THE UNION WAS CERTAINLY ENTITLED TO NEGOTIATE AS TO IMPACT AND IMPLEMENTATION, I.E., PURSUANT TO SECTION 6(B)(2) AND (3) TO NEGOTIATE "PROCEDURES WHICH MANAGEMENT . . . WILL OBSERVE IN EXERCISING ANY AUTHORITY UNDER THIS SECTION" OR "APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY A AFFECTED . . . ." THAT THE UNION'S CONCERN WAS TO INSURE THAT THE TEST BE DONE UNDER PROPER CONDITIONS, WHICH APPARENTLY MEANT THAT IT WAS CONCERNED PRIMARILY WITH PROCEDURES UNDER SECTION 6(B)(2), DOES NOT ALTER THE UNION'S RIGHT TO NEGOTIATE OR RESPONDENT'S OBLIGATION TO NEGOTIATE CONCERNING SUCH PROCEDURES. RESPONDENT PROVIDED BRIEFINGS, AT WRIGHT-PATTERSON AS WELL AS AT THE THREE BASES WHERE THE TEST WAS TO BE CONDUCTED (HILL, KELLY, AND ROBINS), AND THE UNION WAS ASKED TO PROVIDE, AND TENTATIVELY AGREED TO PROVIDE, PROPOSALS ABOUT WHICH IT WISHED TO NEGOTIATE. THE UNION DID NOT SUBMIT ANY PROPOSALS. AS A GENERAL PROPOSITION, AN AGENCY MAY NOT UNILATERALLY IMPOSE CONDITIONS AS TO HOW BARGAINING WILL BE CONDUCTED, DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY, CASE NO. 7-CA-459 (ALJ, NOVEMBER 7, 1980); NEVERTHELESS THE OBLIGATION TO BARGAIN UNDER SECTION 6(B)(2) OR (3) IS CONTINGENT ON THERE BEING SOMETHING TO BARGAIN ABOUT. FOR EXAMPLE, IF IMPACT (ADVERSE EFFECT) IS ALLEGED, THERE MUST BE SOME ASSERTION OF ADVERSE EFFECT, OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, CASE NOS. 9-CA-56, 9-CA-57 (ALJ, AUGUST 12, 1980). HERE, THE UNION HAD AGREED TO SUBMIT PROPOSALS ABOUT WHICH IT WANTED TO NEGOTIATE BUT DID NOT DO SO AND THE RECORD, FULLY ACCEPTING GENERAL COUNSEL'S ASSERTION THAT THE UNION WAS CONCERNED THAT THE TESTING BE DONE UNDER PROPER CONDITIONS, IS DEVOID OF EVIDENCE THAT THERE WAS ANY PROCEDURE OR ADVERSE EFFECT ABOUT WHICH THE UNION WANTED TO BARGAIN TO SUPPORT A FINDING OF A REFUSAL TO BARGAIN. AS TO PROJECT PACER SPAN, THE UNION DID SUBMIT EXTENSIVE COUNTER PROPOSALS AND THE RECORD SHOWS MATTERS SUBJECT TO THE OBLIGATION TO BARGAIN; BUT RESPONDENT ON APRIL 29, 1980, ADVISED THE UNION THAT, ALTHOUGH IT WOULD NOT PAY MR. TOMPKINS' TRAVEL AND PER DIEM EXPENSES, WHICH I HAVE FOUND VIOLATED SECTION 31 AND 16(A)(1) AND (8) OF THE STATUTE, PROJECT PACER SPAN WOULD BE IMPLEMENTED MAY 12, 1980, UNLESS THE UNION MET TO BARGAIN PRIOR TO MAY 12, 1980. THE UNION REFUSED TO MEET BECAUSE RESPONDENT REFUSED TO PAY MR. TOMPKINS' TRAVEL AND PER DIEM EXPENSES; BUT IT CANNOT BE SAID THAT RESPONDENT REFUSED TO BARGAIN. NOT ONLY DOES THE RECORD FAIL TO SHOW THAT THE UNION COULD NOT, WITHOUT INCONVENIENCE, HAVE PROCEED WITH BARGAINING AND LEFT PAYMENT OF TRAVEL AND PER DIEM EXPENSES FOR LATER RESOLUTION; BUT THE RECORD AFFIRMATIVELY SHOWS, BY THE ESTABLISHMENT OF THE OFFICE OF EXECUTIVE DIRECTOR OF COUNCIL 214 AT WRIGHT-PATTERSON, A REASONABLE BELIEF BY RESPONDENT THAT MR. KETCHERSIDE, AS EXECUTIVE DIRECTOR, WOULD, GENERALLY, HANDLE MID-TERM NEGOTIATIONS. ON OTHER OCCASIONS, THE REASON FOR DESIGNATING ANOTHER NEGOTIATOR WAS GIVEN AND RESPONDENT AGREED TO PAY TRAVEL AND PER DIEM EXPENSES. WHILE I HAVE FOUND THAT RESPONDENT WAS WRONG AND COULD NOT CONDITION THE PAYMENT OF TRAVEL AND PER DIEM OF THE UNION'S DESIGNATED NEGOTIATORS ON A SHOWING OF NECESSITY AND/OR THAT NEGOTIATIONS COULD NOT BE HANDLED BY PERSONNEL AT WRIGHT-PATTERSON, THE CIRCUMSTANCES SURROUNDING THE OFFICE OF EXECUTIVE DIRECTOR AND ITS FUNCTION FURTHER SHOWS THAT RESPONDENT'S ACTIONS WERE NOT IN DERROGATION OF ITS OBLIGATION UNDER THE STATUTE TO BARGAIN WITH THE UNION. ACCORDINGLY, THE ALLEGATIONS OF THE COMPLAINT AS TO SECTION 16(A)(5) ARE DISMISSED. CF. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT, CASE NOS. 4-CA-498, 4-CA-561, SUPRA; BUT SEE, INTERNAL REVENUE SERVICE, CASE NOS. 3-CA-331, 3-CA-1231, SUPRA. HAVING FOUND THAT RESPONDENT VIOLATED SECTION 16(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING: ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE TO LYNN TOMPKINS, WILLIAM SHOELL, JOSEPH SCHUCHARDT, OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE, DURING UNION-AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, INCLUDING MID-TERM NEGOTIATIONS, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING ACTIVITY OR AGENCY AND PAYMENT OF SUCH TRANSPORTATION AND PER DIEM EXPENSES SHALL NOT BE CONDITIONED ON THE UNION SHOWING JUSTIFICATION FOR THE DESIGNATION OF ANY NEGOTIATOR. (B) IN ANY LIKE OR RELATED MANNER, INTERFERRING 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) POST AT ITS VARIOUS INSTALLATIONS OF THE AIR FORCE LOGISTICS COMMAND WHEREIN UNIT EMPLOYEES ARE LOCATED, I.E., AT HILL AIR FORCE BASE, OGDEN, UTAH; KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS; MCCELLAN AIR FORCE BASE, SACRAMENTO, CALIFORNIA; NEWARK AIR FORCE STATION, NEWARK, OHIO; ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA; TINKER AIR FORCE BASE, OKLAHOMA CITY, OKLAHOMA; WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO; DETACHMENT 21, AFCMC, AFPRO, BOEING, WICHITA, KANSAS; AND CATALOGUING AND STANDARDIZATION OFFICE, BATTLE CREEK, MICHIGAN, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX". COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 5, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT AND BE MAINTAINED BY IT 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 OTHER MATERIAL. (B) NOTIFY THE 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. WILLIAM B. DEVANEY ADMINISTRATIVE LAW JUDGE DATED: MAY 27, 1981 WASHINGTON, D.C. APPENDIX 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 LYNN TOMPKINS, WILLIAM SHOELL, JOSEPH SCHUCHARDT, OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 214, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION-AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, INCLUDING MID-TERM NEGOTIATIONS, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING ACTIVITY OR AGENCY. WE WILL NOT CONDITION THE PAYMENT OF TRANSPORTATION AND PER DIEM EXPENSES ON THE UNION SHOWING JUSTIFICATION FOR THE DESIGNATION OF ANY UNION NEGOTIATOR. 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. (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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: SUITE A-1359, 175 WEST JACKSON BOULEVARD, CHICAGO, ILLINOIS 60604, AND WHOSE TELEPHONE NUMBER IS: (312) 866-3468. --------------- FOOTNOTES$ --------------- /1/ 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). 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). AS TO THE JUDGE'S DISMISSAL OF THE ALLEGATION THAT RESPONDENT'S REFUSAL TO AUTHORIZE PER DIEM AND TRAVEL EXPENSES CONSTITUTED A SEPARATE VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE, SEE ALSO DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS, 9 FLRA NO. 40 (1982). /2/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 4 FLRA NO. 39 (1980). THIS IS NOT TO SAY HOWEVER THAT AN AGENCY IS PRECLUDED FROM SEEKING TO MITIGATE THROUGH NEGOTIATIONS TRAVEL AND PER DIEM EXPENSES. SEE DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV, ATLANTA, GEORGIA, 9 FLRA NO. 150 (1982), N. 2. /3/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE, ALSO, REFERRED TO HEREINAFTER WITHOUT INCLUSION TO THE INITIAL "71", E.G., SECTION 7116(A)(1) WILL BE REFERRED TO, SIMPLY, AS "16(A)(1)". /4/ GENERAL COUNSEL, ON NOVEMBER 18, 1980, FILED A MOTION TO CORRECT TRANSCRIPT, TO WHICH NO OPPOSITION WAS FILED, AND, FINDING THE MOTION MERITORIOUS, IT IS GRANTED AND THE TRANSCRIPT IS HEREBY CORRECTED AS FOLLOWS: A) GENERAL COUNSEL MOVED TO SUBSTITUTE THE WORD "SUBSTANTIVE" FOR THE WORD "SUBSTANTIAL" WHERE IT APPEARS FROM P. 76, 1. 14, THROUGH AND INCLUDING P. 78, 1. 12. THE WORD "SUBSTANTIVE" IS, THEREFORE, INSERTED AT P. 76 LINES 14, 16, 17, 20, 24, 25; P. 77, LINES 5 AND 20; P. 78, LINES 2, 10, AND 12. B) GENERAL COUNSEL MOVED TO SUBSTITUTE THE WORD "GRADES" FOR THE WORD "RATES" WHERE IT APPEARS FROM P. 79, 1. 12 TO P. 80, 1. 15. ACCORDINGLY THE WORD "GRADES" IS INSERTED AT P. 79, LINE 12 (TWICE) P. 80, LINE 15 (TWICE). /5/ THE FACTS ARE NOT DISPUTED AND I HAVE ADOPTED, IN SUBSTANCE, RESPONDENT'S STATEMENT OF FACTS.