[ v22 p259 ]
22:0259(25)CA
The decision of the Authority follows:
22 FLRA No. 25
OFFICE OF THE GENERAL COUNSEL
NATIONAL LABOR RELATIONS BOARD
Respondent
and
NATIONAL LABOR RELATIONS BOARD UNION
Charging Party
Case NO. 3-CA-40176
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Authority" in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations. The complaint alleges that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by unilaterally rejecting provisions of the
parties' collective bargaining agreements and Memorandum of
Understanding, all of which authorized payment of travel and per diem
expenses, and by refusing to negotiate with the Charging Party regarding
payment of travel and per diem expenses.
II. Background
The Charging Party is the exclusive representative for two separate
professional and nonprofessional units of the Respondent's employees.
Separate collective bargaining agreements were negotiated covering the
two units. The agreements were executed on August 1, 1980 for
three-year terms. On July 8, 1983, the parties agreed to extend the
agreements until new agreements were reached or until 30 days after
either party notified the other of a desire to terminate.
Each of the agreements contained the following provisions relative to
the payment of travel and per diem expenses.
(a) Official Time -- In accordance with existing law, official
time has the same meaning as when an employee is otherwise on
official duty status and shall include entitlements to payment for
such time, travel, per diem and other benefits. In the event the
FLRA or a court modifies the existing law, this Article will be
reopened upon the request of either party regarding the
employees(') entitlement to travel, per diem and other benefits.
(b) Administrative Leave -- Administrative leave is leave
granted which is not charged to annual, sick, or leave without
pay. Employees on such leave shall not be entitled to travel or
per diem.
In September 1983, the parties executed a Memorandum of Understanding
(MOU) containing ground rules governing the parties' negotiations for
new collective bargaining agreements for both units. Section 1 of the
MOU provided as follows:
1. The NLRBU may have up to five bargaining committee members
on official time for scheduled negotiating sessions regardless of
the number of management committee members; /1/ at its option,
the NLRBU may have a sixth committee member present, not on
official time, and share the committee's administrative leave
among such six members. The foregoing shall not apply where the
parties agree to negotiate in subcommittee.
Since September 1983, the parties were engaged in negotiating new
collective bargaining agreements. As of the date of the stipulation in
this case, no new agreements had been reached.
Payments of travel and per diem expenses were made by the Respondent
until January 26, 1984. At that time, the Respondent informed the
Charging Party that it would no longer make such payments on the basis
that payment of travel and per diem expenses was not in the primary
interest of the Government and the Respondent was precluded by law from
making such payents. The Respondent then offered to bargain over the
impact and implementation of its decision to no longer make payments and
apparently rejected the Charging Party's claim that the decision itself
was a negotiable matter. The parties met and reached agreement on the
Charging Party's impact and implementation proposals. During the
bargaining sessions which followed the Respondent's decision to stop
paying travel and per diem expenses, the Charging Party reduced its
bargaining team from five members to three and also paid the travel and
per diem expenses of the employees acting as its negotiators.
III. Positions of the Parties
The Respondent argues basically that payments of travel and per diem
expenses are contrary to law and therefore the refusal to make such
payments is not a violation of the Statute; that it acted lawfully in
refusing to negotiate over whether payment of travel and per diem
expenses is in the primary interest of the Government; and that under
the collective bargaining agreements, the provisions relating to travel
and per diem expenses could be reopened by either party if the Authority
or a court modified existing case law on the subject matter as occurred
here.
The General Counsel takes the position that the Respondent's
agreement to pay travel and per diem expenses is enforceable under the
Statute in the absence of any showing that such matter is inconsistent
with Federal law or is not a condition of employment. Therefore, the
General Counsel asserts that the Respondent's repudiation of its
agreement to make such payments and its further declaration that the
refusal to make such payments was nonnegotiable constituted a violation
of section 7116(a)(1) and (5) of the Statute. To remedy this conduct,
the General Counsel requests that the Respondent be ordered to make
whole any unit employees uho expended funds for their travel and per
diem expenses for negotiations after January 26, 1984. The General
Counsel also requests a nationwide posting of the remedial notice.
The Charging Party essentially argues that the Respondent unlawfully
terminated payment of travel and per diem expenses and requests that an
appropriate remedy include retroactive payment of travel and per diem to
the Charging Party. As to the language of the provisions in the
collective bargaining agreements permitting their reopener upon
modification of case precedent, the Charging Party argues that rather
than reopening the agreements and allowing negotiations to take place,
the Respondent chose to abrogate the provisions and refuse to bargain.
In an amicus curiae brief filed by the Office of Personnel Management
(OPM), it is argued that an agency's decision to authorize payment of
travel expenses and per diem allowances is outside the scope of
bargaining under the Statute. Here, OPM argues, the Respondent was
correct in abrogating the provisions of the agreements calling for
payment of travel and per diem expenses.
IV. Analysis
Turning first to the Respondent's contentions that payment of travel
and per diem expenses is contrary to law, and that the Respondent did
not unlawfully refuse to bargain over whether such payments are in the
primary interest of the Government, the Authority found in National
Treasury Employees Union and Department of the Treasury, U.S. Customs
Service, 21 FLRA No. 2 (1986), petition for review filed sub nom.
Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198
(D.C. Cir. Mar. 27, 1986), that agencies have discretion under the
Travel Expense Act, 5 U.S.C. Sections 5701 et seq., and implementing
regulations, to determine whether and under what circumstances travel
related to labor-management relations activities is sufficiently within
the interest of the United States so as to constitute official business
for which employees may receive appropriate expenses from Federal funds.
Further, the Authority held that the exercise of such discretion is
subject to negotiations. /1/ The Authority noted, however, that
determinations as to the appropriateness of specific travel and per diem
expenses which are necessary and proper under law and governing
regulations would have to be made on a case-by-case basis.
In this case, the parties had negotiated for the payment of travel
and per diem expenses and had included such provisions in their
collective bargaining agreements, which were extended pending the
negotiation of new collective bargaining agreements, and had also
included such payments in the MOU covering ground rules for the
negotiations. In Department of Defense Dependents Schools System, 21
FLRA NO. 125 (1986), the Authority concluded that an agency's conduct in
repudiating provisions of a negotiated agreement authorizing the payment
of travel and per diem expenses violated section 7116(a)(1) and (5) of
the Statute. Similarly, in Adjutant General, State of Ohio, Ohio Air
National Guard, Worthington, Ohio, 21 FLRA NO. 124 (1986), the Authority
found that the unilateral termination and repudiation of a memorandum of
understanding setting forth ground rules for upcoming negotiations which
provided for the payment of travel and per diem expenses of employees
serving as the union's negotiators violated section 7116(a)(1) and (5)
of the Statute. On the same basis, the Authority finds that the
Respondent's repudiation of the agreements and the MOU in this case
violated section 7116(a)(1) and (5) of the Statute.
As to the Respondent's contention that it had the right to reopen the
provisions of the agreements as a result of the modification of existing
law, /2/ there is no evidence that the Respondent had in fact reopened
the agreements or requested to do so. The language of the "Official
Time" provisions of the agreements, as set forth above, specifies that
"(i)n the event the FLRA or a court modifies the existing law, this
Article will be reopened upon the request of either party regarding the
employees(') entitlement to travel, per diem and other benefits." The
stipulated facts here indicate that the parties were engaged in
negotiations for new collective bargaining agreements commencing in
September 1983 and that payments of travel and per diem expenses were
made by the Respondent until Uanuary 26, 1984. At that time, the
Respondent informed the Charging Party that payments would no longer be
made based upon its decision that such payments could not be certified
as being in the primary interest of the Government. The Authority does
not view such notification to the Charging Party as a request to reopen
the agreements. However, even if it could be found that the provisions
of the agreements had been reopened, the Respondent's conduct would
still be a violation of the Statute. As previously noted,
determinations as to whether and under what circumstances travel related
to labor-management relations activities is sufficiently within the
interest of the United States so as to constitute official business for
which employees may receive appropriate expenses from Federal funds is
within the duty to bargain. Here, when the Respondent notified the
Charging Party of its unilateral decision to no longer make such
payments, it also rejected the Charging Party's assertion that the
Respondent was obligated to bargain over the decision itself. Instead,
the Respondent chose to limit bargaining only to the effects of its
decision to discontinue the payment of travel and per diem expenses.
Such conduct is contrary to the Respondent's duty to bargain in good
faith in violation of section 7116(a)(1) adn (5) of the Statute.
V. Remedy
The General Counsel has requested that there be a nationwide posting
of the remedial unfair labor practice notice and that the Respondent be
ordered to make whole any unit employee who expended funds for travel
and per diem expenses in connection with negotiations after January 26,
1984. The Charging Party, on the other hand, requests that it be given
retroactive payment for the amount spent on travel and per diem expenses
which, the parties stipulated, was taken from union membership dues
funds.
As noted above, the Respondent paid travel and per diem expenses
until January 26, 1984. Thereafter, the Charging Party made such
payments to unit employees who served as its negotiators. In our view,
it will effectuate the purposes and policies of the Statute to issue an
order requiring the Respondent to make whole the Charging Party for
those travel and per diem expenses which it incurred by reimbursing the
affected employees who should have received such payments directly from
the Respondent. A contrary conclusion would result in a windfall to the
Respondent for its unlawful conduct. Such an order assumes, of course,
that payment of the travel and per diem expenses involved would be
consistent with law and regulation, including the Federal Travel
Regulations. Further, although it does not appear from the record
before us that bargaining unit employees themselves expended funds for
their travel and per diem expenses, in the event that there are such
employees who either did not receive the payments to which they were
entitled or were not compensated fully for such expenses, we shall order
the Respondent to reimburse them for the travel and per diem expenses
they incurred upon their submission of properly documented claims for
such payments. These payments too must be consistent with law and
regulation, including the Federal Travel Regulations.
As requested, we shall also order a nationwide posting of the
remedial notice. The Charging Party represents two nationwide units of
the Respondent's employees, professional and nonprofessional, and
therefore the Respondent's conduct in unilaterally repudiating
provisions in the agreements covering the employees in those units can
be effectively remedied only by an Order which requires the posting of
the remedial notices wherever the affected employees in such units are
situated.
VI. Conclusion
The Authority concludes that the Respondent's repudiation of the
collective bargaining agreements and the MOU and its subsequent refusal
to bargain in good faith violated section 7116(a)(1) and (5) of the
Statute. The Authority shall therefore issue the following Order.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is ordered that the Office of the
General Counsel, National Labor Relations Board shall:
1. Cease and desist from:
(a) Repudiating the terms of the 1980 collective bargaining
agreements and the September 1983 Memorandum of Understanding negotiated
with the National Labor Relations Board Union, the exclusive
representative of units of its professional and nonprofessional
employees, which authorize payment of travel and per diem expenses to
unit employees.
(b) Failing or refusing to bargain with the National Labor Relations
Board Union, the exclusive representative of units of its professional
and nonprofessional employees, concerning payment for travel and per
diem expenses to unit employees.
(c) 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 Statute:
(a) Comply with the terms of the 1980 collective bargaining
agreements and the September 1983 Memorandum of Understanding negotiated
with the National Labor Relations Board Union, the exclusive
representative of units of its professional and nonprofessional
employees, which authorize payment of travel and per diem expenses to
unit employees.
(b) Negotiate upon request of the National Labor Relations Board
Union concerning payment for travel and per diem expenses to unit
employees.
(c) Make the National Labor Relations Board Union whole for the costs
it incurred by paying the travel and per diem expenses of bargaining
unit employees who acted as its negotiators after January 26, 1984, for
which the employees otherwise would have been entitled to reimbursement
directly by the Respondent.
(d) Pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments for negotiations which occurred after January 26, 1984, to
the extent that such expenses have not been reimbursed by the National
Labor Relations Board Union.
(e) Post at all its facilities where bargaining unit employees
represented by the National Labor Relations Board Union 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 the General Counsel of the National Labor Relations Board, or
a 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.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Issued, Washington, D.C., June 25, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) See also American Federation of Government Employees, AFL-CIO,
National Council of Federal Grain Inspection Locals and U.S. Department
of Agriculture, Federal Grain Inspection Service, 21 FLRA No. 21 (1986)
and National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 21 FLRA No. 19 (1986), in which proposals
authorizing payment of various travel and per diem expenses were found
to be within the duty to bargain.
(2) The modification of existing law referred to by the Respondent is
the United States Supreme Court's decision in Bureau of Alcohol, Tobacco
and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), in which the Court
found that section 7131(a) of the Statute does not entitle employees on
official time to the payment of travel and per diem expenses.
Subsequent to that decision, of course, the Authority found the
authorization of payment for travel and per diem expenses to be within
the duty to bargain. National Treasury Employees Union and Department
of the Treasury, U.S. Customs Service, supra.
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 repudiate the terms of the 1980 collective bargaining
agreements and the September 1983 Memorandum of Understanding negotiated
with the National Labor Relations Board Union, the exclusive
representative of units of our professional and nonprofessional
employees, which authorize payment of travel and per diem expenses to
unit employees.
WE WILL NOT fail or refuse to bargain with the National Labor
Relations Board Union, the exclusive representative of units of our
professional and nonprofessional employees, concerning payment for
travel and per diem expenses to unit employees.
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 comply with the terms of the 1980 collective bargaining
agreements and the September 1983 Memorandum of Understanding negotiated
with the National Labor Relations Board Union, the exclusive
representative of units of our professional and nonprofessional
employees, which authorize payment of travel and per diem expenses to
unit employees.
WE WILL negotiate upon request of the National Labor Relations Board
Union concerning payment for travel and per diem expenses.
WE WILL make the National Labor Relations Board Union whole for the
costs it incurred by paying the travel and per diem expenses of
bargaining unit employees who acted as its negotiators after January 26,
1984, for which the employees otherwise would have been entitled to
reimbursement directly by us.
WE WILL pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments for negotiations which occurred after January 26, 1984, to
the extent that such expenses have not been reimbursed by the National
Labor Relations Board Union.
(Activity)
Dated: . . .
By: (Signature) (Title)
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 III, 1111 18th Street, NW., Room 700 (P.O. Box 33758),
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.