B-209269 L/M, OCT 27, 1982, OFFICE OF GENERAL COUNSEL
Highlights
GENERAL SERVICES ADMINISTRATION: THIS IS IN RESPONSE TO YOUR LETTER OF SEPTEMBER 24. THIS ISSUE WAS THE SUBJECT OF A POLICY STATEMENT ISSUED BY THE FEDERAL LABOR RELATIONS AUTHORITY. IN WHICH THE FLRA STATED THAT ANY EMPLOYEE WHO IS ON OFFICIAL TIME UNDER THE PROVISIONS OF 5 U.S.C. SEC. 7131 WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT IS ENTITLED TO REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES. THREE DECISIONS HAVE BEEN ISSUED: ONE BY THE NINTH CIRCUIT IN BUREAU OF ATF V. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT A PETITION FOR CERTIORARI WILL BE FILED BY MID-NOVEMBER. IT IS OUR GENERAL POLICY NOT TO ISSUE A DECISION ON A MATTER THAT IS PENDING IN COURT.
B-209269 L/M, OCT 27, 1982, OFFICE OF GENERAL COUNSEL
PRECIS-UNAVAILABLE
ALLIE B. LATIMER, ESQUIRE, GENERAL SERVICES ADMINISTRATION:
THIS IS IN RESPONSE TO YOUR LETTER OF SEPTEMBER 24, 1982, CONCERNING THE AUTHORITY OF A FEDERAL AGENCY TO PAY THE TRAVEL AND PER DIEM EXPENSES OF EMPLOYEES NEGOTIATING A COLLECTIVE BARGAINING AGREEMENT ON BEHALF OF A LABOR UNION.
AS YOUR LETTER POINTS OUT, THIS ISSUE WAS THE SUBJECT OF A POLICY STATEMENT ISSUED BY THE FEDERAL LABOR RELATIONS AUTHORITY, O-PS-3 AND O PS -6, 2 FLRA NO. 31, DECEMBER 19, 1979, IN WHICH THE FLRA STATED THAT ANY EMPLOYEE WHO IS ON OFFICIAL TIME UNDER THE PROVISIONS OF 5 U.S.C. SEC. 7131 WHILE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT IS ENTITLED TO REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES.
THIS ISSUE HAS BEEN THE SUBJECT OF SEVERAL APPEALS TO THE UNITED STATES COURTS OF APPEALS, AND THREE DECISIONS HAVE BEEN ISSUED: ONE BY THE NINTH CIRCUIT IN BUREAU OF ATF V. FLRA, NOS. 80-7673 AND 81-7021 (9TH CIR. MARCH 22, 1982); ONE BY THE SECOND CIRCUIT IN DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, V. FLRA, NO. 82-4036 (2ND CIR., JUNE 28, 1982); AND ONE BY THE EIGHTH CIRCUIT IN U. S. DEPARTMENT OF AGRICULTURE V. FLRA, NO. 81-1948 (8TH CIR., AUGUST 9, 1982). THE NINTH CIRCUIT OPINION AGREED WITH THE FLRA POLICY STATEMENT WHILE THE SECOND AND EIGHTH CIRCUITS REACHED THE OPPOSITE CONCLUSION. THE CONFLICTING DECISIONS IN DIFFERENT CIRCUITS APPEAR TO PROVIDE THE OPPORTUNITY FOR REVIEW BY THE UNITED STATES SUPREME COURT, AND WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT A PETITION FOR CERTIORARI WILL BE FILED BY MID-NOVEMBER.
IT IS OUR GENERAL POLICY NOT TO ISSUE A DECISION ON A MATTER THAT IS PENDING IN COURT, UNLESS REQUESTED TO DO SO BY THE COURT. THUS, WE HAVE PREVIOUSLY DECLINED TO ISSUE A DECISION ON THIS QUESTION, AND WE HAVE ADVISED AN AGENCY TO DEFER PAYMENTS UNTIL THE MATTER IS RESOLVED. B-200341, DECEMBER 29, 1980.
BASED ON THE ABOVE, WE RECOMMEND THAT YOU WITHHOLD ANY PAYMENTS THAT MIGHT ARISE UNDER YOUR COLLECTIVE BARGAINING AGREEMENT UNTIL THE ISSUE HAS BEEN FINALLY RESOLVED IN THE COURTS.