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Division of Military and Naval Affairs v. Federal Labor Relations Authority

decided: June 28, 1982.

DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, AND DEPARTMENT OF DEFENSE, PETITIONERS,
v.
FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT



The Authority charged the New York National Guard with an unfair labor practice because the Guard refused to pay the per diem and travel expenses incurred by representatives of civilian employees engaged in collective bargaining with the Guard. The Guard petitions for review, and the Authority applies for enforcement.

Lumbard, Oakes and Pierce, Circuit Judges. Oakes, Circuit Judge, dissenting.

Author: Lumbard

LUMBARD, Circuit Judge:

The New York National Guard*fn1 petitions for review of an order of the Federal Labor Relations Authority (FLRA) which directs the Guard to pay the per diem and travel expenses incurred by representatives of civilian employees in collective bargaining with the Guard. The FLRA applies for enforcement of the order. We grant the petition for review and deny enforcement. We find no authority to support the FLRA's command that the federal government, alone among federally-regulated employers, must pay expenses incurred by its adversaries across the bargaining table.

The parties agree on the facts. The National Guard employs some 46,700 civilian technicians across the country to meet the day-to-day administrative, training and logistical needs of the Guard.*fn2 Approximately three-quarters of the technicians are represented by various unions, including the New York State Council of Association of Civilian Technicians, Inc. On two days in November 1979, and one day in April 1980, five members of the New York State Council represented their union in contract negotiations with the New York National Guard in Albany, New York. The technicians incurred travel and per diem expenses because they were not stationed in Albany. The Guard's principal negotiator incurred similar expenses. The Guard paid the expenses of its own negotiator but pursuant to its past practice declined to pay the expenses of the Union representatives. The Union filed unfair labor practice charges in spring of 1980 with the FLRA, and in December 1981 the FLRA found that the Union representatives were entitled to their travel/per diem costs under a previously issued FLRA Interpretation and Guidance, 2 FLRA No. 31 (1979).

The FLRA's Interpretation was not a regulation promulgated under 5 U.S.C. § 7134, but rather an informal ruling issued under 5 U.S.C. § 7105(a) (1). The FLRA in its Interpretation noted that government employees are entitled to reimbursement of travel and per diem expenses incurred on official business :

(a) Under regulations prescribed under § 5707 of this title, an employee while traveling on official business away from his designated post of duty . . . is entitled to . . . is entitled to . . . a per diem allowance. . . .

5 U.S.C. § 5702(a) (1976) (emphasis added).

The FLRA also noted that the Civil Service Reform Act of 1978 (CSRA) provided that government employees would draw their salaries for time spent in collective bargaining by designating such time as 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.

P.L. 95-454, 95th Cong., 2d Sess. § 701, 92 Stat. 1111, 1214 (1978), 5 U.S.C. § 7131(a) (Supp. III 1979) (emphasis added).

Government employees had previously conducted collective bargaining under Executive Order 11491 (1969), 1969 U.S. Code Cong. & Ad. News 2948, which did not entitle employees to pay for time spent in collective bargaining. The FLRA concluded that when Congress expanded "official time" to compensate employees for bargaining time, Congress also meant to expand "official business" to compensate employee bargainers for travel and per diem expenses. The FLRA supported its conclusion by noting that Congress in the CSRA had declared that collective bargaining furthered the public business :

(a) The Congress finds that -- (1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor ...


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