B-156287, MAR. 1, 1966

B-156287, MAR. 1, 1966

TO MR. JAMES T. LEWIS, AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES:

ON FEBRUARY 9, 1966, YOU TRANSMITTED HERE TWO VOUCHERS--- ONE COVERING OVERTIME COMPENSATION AND THE OTHER TRAVELING EXPENSES--- CLAIMED TO BE DUE BY CERTAIN EMPLOYEES OF THE BUREAU OF MINES, HELIUM ACTIVITY, INCIDENT TO THEIR ATTENDANCE AND PARTICIPATION AS REPRESENTATIVES OF EMPLOYEE UNIONS IN LABOR MANAGEMENT MEETINGS.

WHILE YOU ARE AWARE OF OUR DECISIONS OF APRIL 9 AND SEPTEMBER 23, 1965, B -156287, YOU SUGGEST THAT A DIFFERENCE MAY EXIST BETWEEN THE SITUATIONS THERE INVOLVED AND THE SITUATIONS YOU PRESENT, ESPECIALLY THOSE CONCERNING EMPLOYEE REPRESENTATIVES OF THE OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION (OCAW). IN SUCH CONNECTION YOUR LETTER SAYS:

"LONG BEFORE EXECUTIVE ORDER 10988 WAS ISSUED, IT WAS THE HELIUM ACTIVITY'S PRACTICE TO PAY TRAVEL EXPENSES INCURRED BY UNION REPRESENTATIVES WHEN ATTENDING LABOR-MANAGEMENT MEETINGS, ALTHOUGH THERE WAS NO CONTRACTUAL REQUIREMENT TO DO SO. THE PRACTICE OF PAYING TRAVEL EXPENSES WAS MADE A CONTRACTUAL REQUIREMENT WHEN THE CURRENT CONTRACT BETWEEN THE HELIUM ACTIVITY AND THE OCAW, COPY ENCLOSED, WAS NEGOTIATED IN 1964. * * *

"YOUR DECISION OF APRIL 9, 1965, B-156287, AND ITS SUPPLEMENT, DATED SEPTEMBER 23, 1965, HAVE BEEN NOTED. THESE BEAR ON THE ABOVE CLAIMS, AND HAVE RAISED QUESTIONS ON THE PROPRIETY OF PAYING THEM; BUT DUE TO THE LONG -TERM PRACTICE OF PAYING OVERTIME AND TRAVEL EXPENSES OF OCAW REPRESENTATIVES, A DIFFERENCE APPEARS TO EXIST BETWEEN THE SITUATIONS YOU HAVE RULED ON AND THOSE CONCERNING EMPLOYEE REPRESENTATIVES OF THE OCAW. I RECOGNIZE THAT THE CLAIMS OF THE AFGE REPRESENTATIVES ARE VERY DOUBTFUL IN VIEW OF THE DECISION B-156287; HOWEVER, THE EMPLOYEES WERE INSISTENT ON CONSIDERATION OF THEIR CLAIMS, ESPECIALLY AS TO THE INFLUENCE MANAGEMENT- CALLED MEETINGS HAVE ON THEIR RIGHT TO RECEIVE OVERTIME PAY AND REIMBURSEMENT FOR APPROPRIATE TRAVEL EXPENSES.'

WE HAVE CONSIDERED CAREFULLY THE CONTENTS OF YOUR LETTER BUT PERCEIVE NO PROPER LEGAL BASIS WARRANTING OUR APPROVING EITHER VOUCHER FOR CERTIFICATION. THE CASES THAT YOU PRESENT REASONABLY FALL WITHIN THE GENERAL PRINCIPLES ENUNCIATED IN OUR DECISIONS OF APRIL 9 AND SEPTEMBER 23, 1965, CITED IN YOUR LETTER. ALSO, WE INVITE ATTENTION TO A MORE RECENT DECISION ALONG THE SAME VEIN--- DECISION OF JANUARY 28, 1966, B- 156287, COPY ENCLOSED.

THE FACT THAT ARTICLE 4, SECTION 1/B) OF THE LABOR AGREEMENT WITH OCAW, EXECUTED SEPTEMBER 10, 1964, PROVIDES FOR THE PAYMENT OF TRAVELING EXPENSES OF UNION REPRESENTATIVES INCIDENT TO PARTICIPATION IN NEGOTIATION SESSIONS IS NOT REGARDED AS CONTROLLING SINCE AN AGENCY MAY NOT BY A LABOR AGREEMENT BIND ITSELF IN A MATTER OTHERWISE BEYOND THE SCOPE OF ITS AUTHORITY. IN OTHER WORDS, WE DO NOT VIEW PAYMENT OF TRAVELING EXPENSES AND OVERTIME COMPENSATION UNDER THE RELATED CIRCUMSTANCES AS COMING WITHIN THE PURVIEW OF YOUR AGENCY'S WAGE FIXING AUTHORITY AS PROVIDED FOR IN SECTION 202/7) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082/7). MOREOVER, THE FACT THAT THE UNAUTHORIZED PRACTICE OF PAYING OVERTIME COMPENSATION AND TRAVELING EXPENSES TO REPRESENTATIVES OF OCAW ANTEDATED EXECUTIVE ORDER NO. 10988 DOES NOT PROVIDE A SUFFICIENT LEGAL BASIS FOR THE CONTINUATION OF SUCH PRACTICE.

THE VOUCHERS, WHICH ARE RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.