B-156287, APR. 9, 1965, 44 COMP. GEN. 617

B-156287, APR. 9, 1965, 44 COMP. GEN. 617

UNIONS - FEDERAL SERVICE - EMPLOYEE EXPENSE REIMBURSEMENT EMPLOYEE REPRESENTATIVES OF EMPLOYEE ORGANIZATIONS WHO ARE REQUIRED TO TRAVEL AND TO PERFORM DUTY OUTSIDE THEIR REGULAR TOURS OF DUTY IN CONNECTION WITH NEGOTIATIONS UNDER THE EMPLOYEE-MANAGEMENT EXECUTIVE ORDER NO. 10988 MAY NOT, IN THE ABSENCE OF LEGISLATION, HAVE SUCH TRAVEL OR OVERTIME DUTY REGARDED AS OFFICIAL BUSINESS FOR PURPOSES OF REIMBURSING THE EMPLOYEES FOR TRAVEL EXPENSES OR FOR PAYMENT OF OVERTIME COMPENSATION.

TO THE SECRETARY OF THE INTERIOR, APRIL 9, 1965:

WE REFER TO THE LETTER OF YOUR ASSISTANT SECRETARY FOR ADMINISTRATION, DATED MARCH 8, 1965, CONCERNING THE TRAVEL AND OVERTIME PERFORMED BY CERTAIN EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR IN CONNECTION WITH THEIR ACTING AS EMPLOYEE REPRESENTATIVES (NEGOTIATORS) IN FORMAL EMPLOYEE- MANAGEMENT NEGOTIATIONS CONDUCTED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10988 OF JANUARY 17, 1962. IT IS UNDERSTOOD THAT THE EMPLOYEES CONCERNED ARE THE CHOSEN REPRESENTATIVES OF EMPLOYEE ORGANIZATIONS IN ADDITION TO AND APART FROM THEIR NORMAL POSITIONS WITHIN THE DEPARTMENT.

YOU SAY THAT IN CARRYING OUT THE POLICIES ENUNCIATED IN EXECUTIVE ORDER NO. 10988, PERTAINING TO EMPLOYEE-MANAGEMENT COOPERATION IN THE INTEREST OF INCREASED EFFICIENCY AND EFFECTIVE CONDUCT OF PUBLIC BUSINESS, QUESTIONS HAVE ARISEN (1) WHETHER EMPLOYEE REPRESENTATIVES MAY BE REIMBURSED FOR TRAVEL EXPENSES THEY INCUR IN CONNECTION WITH NEGOTIATIONS WHICH ARE CONDUCTED AT PLACES OTHER THAN THEIR OFFICIAL DUTY STATIONS, AND (2) WHETHER THEY MAY BE PAID OVERTIME COMPENSATION FOR THE OVERTIME HOURS THEY ARE REQUIRED TO SPEND IN FORMAL NEGOTIATIONS WITH MANAGEMENT REPRESENTATIVES.

THE PREAMBLE OF EXECUTIVE ORDER NO. 10988 CONTAINS THE FOLLOWING EXPRESSION OF EXECUTIVE VIEWS CONCERNING EMPLOYEE-MANAGEMENT COOPERATION IN THE FEDERAL SERVICE:

WHEREAS PARTICIPATION OF EMPLOYEES IN THE FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES AFFECTING THEM CONTRIBUTES TO EFFECTIVE CONDUCT OF PUBLIC BUSINESS; AND

WHEREAS THE EFFICIENT ADMINISTRATION OF THE GOVERNMENT AND THE WELL BEING OF EMPLOYEES REQUIRE THAT ORDERLY AND CONSTRUCTIVE RELATIONSHIPS BE MAINTAINED BETWEEN EMPLOYEE ORGANIZATIONS AND MANAGEMENT OFFICIALS; AND

WHEREAS SUBJECT TO LAW AND THE PARAMOUNT REQUIREMENTS OF THE PUBLIC SERVICE, EMPLOYEE-MANAGEMENT RELATIONS WITHIN THE FEDERAL SERVICE SHOULD BE IMPROVED BY PROVIDING EMPLOYEES AN OPPORTUNITY FOR GREATER PARTICIPATION IN THE FORMULATION AND IMPLEMENTATION OF POLICIES AND PROCEDURES AFFECTING THE CONDITIONS OF THEIR EMPLOYMENT; AND

WHEREAS EFFECTIVE EMPLOYEE-MANAGEMENT COOPERATION IN THE PUBLIC SERVICE REQUIRES A CLEAR STATEMENT OF THE RESPECTIVE RIGHTS AND OBLIGATIONS OF EMPLOYEE ORGANIZATIONS AND AGENCY ANAGEMENT:

NOW THEREFORE * * *

THE EXECUTIVE ORDER THEN GOES ON TO PRESCRIBE PROCEDURES UNDER WHICH THE EXECUTIVE AGENCIES MUST GRANT RECOGNITION TO EMPLOYEE ORGANIZATIONS FOR THE PURPOSE OF CONSULTING AND NEGOTIATING WITH THEM ON MATTERS RELATING TO CONDITIONS OF EMPLOYMENT. SECTION 9 OF THE EXECUTIVE ORDER IN REGARD TO THE UTILIZATION OF OFFICIAL TIME FOR CONSULTATIONS AND NEGOTIATIONS IS AS FOLLOWS:

SOLICITATION OF MEMBERSHIPS, DUES, OR OTHER INTERNAL EMPLOYEE ORGANIZATION BUSINESS SHALL BE CONDUCTED DURING THE NON-DUTY HOURS OF THE EMPLOYEES CONCERNED. OFFICIALLY REQUESTED OR APPROVED CONSULTATIONS AND MEETINGS BETWEEN MANAGEMENT OFFICIALS AND REPRESENTATIVES OF RECOGNIZED EMPLOYEE ORGANIZATIONS SHALL, WHENEVER PRACTICABLE, BE CONDUCTED ON OFFICIAL TIME, BUT ANY AGENCY MAY REQUIRE THAT NEGOTIATIONS WITH AN EMPLOYEE ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE RECOGNITION BE CONDUCTED DURING THE NON-DUTY HOURS OF THE EMPLOYEE ORGANIZATION REPRESENTATIVES INVOLVED IN SUCH NEGOTIATIONS.

OUR VIEW IS THAT PAYMENTS OF TRAVELING EXPENSES AND OVERTIME COMPENSATION TO EMPLOYEE REPRESENTATIVES (NEGOTIATORS) OF EMPLOYEE ORGANIZATIONS IS NOT CONTEMPLATED UNDER EXECUTIVE ORDER NO. 10988. WHILE SECTION 9 OF THE ORDER RECOGNIZES THAT NEGOTIATIONS AND CONSULTATIONS MAY BE CONDUCTED ON OFFICIAL TIME IT ALSO STATES THAT AN AGENCY MAY REQUIRE THAT NEGOTIATIONS BE CONDUCTED DURING THE "NON-DUTY HOURS" OF THE EMPLOYEE ORGANIZATION REPRESENTATIVES INVOLVED IN SUCH NEGOTIATIONS. WE BELIEVE THE LATTER IS INDICATIVE THAT TIME SPENT BY EMPLOYEE REPRESENTATIVES IN NEGOTIATIONS FOR THEIR ORGANIZATIONS OUTSIDE THE REGULAR TOUR OF DUTY IS NOT TO BE REGARDED AS OFFICIAL BUSINESS OF THE GOVERNMENT. AS REFLECTED IN THE EXECUTIVE ORDER SUCH NEGOTIATIONS MAY CONTRIBUTE TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS, BUT WE CANNOT AGREE THAT THE NEGOTIATION DUTIES RENDERED BY AN EMPLOYEE REPRESENTATIVE ARE OFFICIAL DUTIES OR BUSINESS RENDERED ON BEHALF OF THE UNITED STATES. ON THE CONTRARY IT WOULD SEEM THAT SUCH NEGOTIATIONS BY EMPLOYEE REPRESENTATIVES ARE PRIMARILY IN THE INTEREST OF THE EMPLOYEE ORGANIZATION.

THE FACT THAT EMPLOYEE REPRESENTATIVES MAY BE PERMITTED TO PARTICIPATE IN CONSULTATIONS AND NEGOTIATIONS DURING OFFICIAL DUTY HOURS IS NOT CONTROLLING. IT MIGHT BE THAT THE TIME SO OCCUPIED IS IN THE NATURE OF ADMINISTRATIVE LEAVE.

WE NOTE THAT THE EXECUTIVE ORDER FAILS TO INDICATE WHETHER THE REPRESENTATIVE OF AN EMPLOYEE ORGANIZATION MUST BE AN EMPLOYEE OF THE UNITED STATES OR OF THE AGENCY CONCERNED. ASSUMING THAT A NON-EMPLOYEE COULD FUNCTION AS THE REPRESENTATIVE OF AN EMPLOYEE ORGANIZATION UNDER THE ORDER (OR EVEN AN EMPLOYEE OF ANOTHER DEPARTMENT OF THE GOVERNMENT) THEN THE PROBLEMS WHICH WOULD OCCUR IN SUCH EVENT WOULD BE FURTHER SUPPORT FOR THE VIEW THAT PAYMENT OF TRAVELING EXPENSES AND OVERTIME COMPENSATION BY THE GOVERNMENT WAS NOT INTENDED.

WE ARE OF THE OPINION THAT IN THE ABSENCE OF LEGISLATION, TRAVELING EXPENSES AND OVERTIME COMPENSATION IN THE RELATED CIRCUMSTANCES ARE NOT PAYABLE FROM GOVERNMENT FUNDS.