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THE SUBMISSION WAS PROMPTED BY OUR DECISION OF APRIL 9. IN WHICH WE HELD THAT TRAVEL EXPENSES AND OVERTIME COMPENSATION ARE NOT PAYABLE TO EMPLOYEES INCIDENT TO THEIR FUNCTIONS AS EMPLOYEE REPRESENTATIVES (NEGOTIATORS) IN FORMAL EMPLOYEE MANAGEMENT NEGOTIATIONS CONDUCTED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10988 OF JANUARY 17. IT IS STATED THAT THE NAMED UNION HAD BEEN RECOGNIZED BY THE OFFICE OF INSPECTOR GENERAL UNDER THE ABOVE-NAMED ORDER AS EXCLUSIVE REPRESENTATIVE OF THE SPECIFIED GROUPS OF EMPLOYEES AND THAT FOUR OF THE FIVE EMPLOYEES REPRESENTING THE UNION HAD BEEN AUTHORIZED TO PERFORM THE TRAVEL AT GOVERNMENT EXPENSE ON THE ASSUMPTIONS THAT NEGOTIATIONS PURSUANT TO THE ORDER CONSTITUTED OFFICIAL BUSINESS AND THAT PAYMENT OF THEIR TRAVEL EXPENSES WAS PERMISSIBLE.

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B-156287, SEP. 23, 1965

TO SECRETARY OF AGRICULTURE:

THIS REFERS TO THE LETTER OF AUGUST 4, 1965, FROM YOUR ASSISTANT SECRETARY FOR ADMINISTRATION PERTAINING TO THE PAYMENT OF TRAVEL EXPENSES INCURRED BY MR. KENNETH V. DARBY ET AL., REPRESENTATIVES OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES UNION NO. 1375, WHO ATTENDED A MEETING WITH REPRESENTATIVES OF THE OFFICE OF INSPECTOR GENERAL OF THE DEPARTMENT OF AGRICULTURE FROM MARCH 22 THROUGH MARCH 29, 1965, TO NEGOTIATE A BASIC COLLECTIVE BARGAINING AGREEMENT.

THE SUBMISSION WAS PROMPTED BY OUR DECISION OF APRIL 9, 1965, B 156287 (44 COMP. GEN. (, IN WHICH WE HELD THAT TRAVEL EXPENSES AND OVERTIME COMPENSATION ARE NOT PAYABLE TO EMPLOYEES INCIDENT TO THEIR FUNCTIONS AS EMPLOYEE REPRESENTATIVES (NEGOTIATORS) IN FORMAL EMPLOYEE MANAGEMENT NEGOTIATIONS CONDUCTED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10988 OF JANUARY 17, 1962.

IT IS STATED THAT THE NAMED UNION HAD BEEN RECOGNIZED BY THE OFFICE OF INSPECTOR GENERAL UNDER THE ABOVE-NAMED ORDER AS EXCLUSIVE REPRESENTATIVE OF THE SPECIFIED GROUPS OF EMPLOYEES AND THAT FOUR OF THE FIVE EMPLOYEES REPRESENTING THE UNION HAD BEEN AUTHORIZED TO PERFORM THE TRAVEL AT GOVERNMENT EXPENSE ON THE ASSUMPTIONS THAT NEGOTIATIONS PURSUANT TO THE ORDER CONSTITUTED OFFICIAL BUSINESS AND THAT PAYMENT OF THEIR TRAVEL EXPENSES WAS PERMISSIBLE. IT IS ALSO STATED THAT THREE OF THE SUBJECT REPRESENTATIVES HAVE BEEN PAID BUT THE TRAVEL VOUCHER FOR THE FOURTH HAS NOT BEEN CERTIFIED OR PAID.

THE ASSISTANT SECRETARY STATES THAT IT HAS BEEN THE PRACTICE OF THE DEPARTMENT FOR MANY YEARS TO CALL EMPLOYEES TO WASHINGTON AT GOVERNMENT EXPENSE FOR DISCUSSIONS, ETC., PERTAINING TO WORKING CONDITIONS AND RELATED SUBJECTS. ALSO, THAT WITH THE ADVENT OF EXECUTIVE ORDER NO. 10988 THE PRACTICE WAS EXTENDED TO EMPLOYEES WHO WERE ENGAGED IN NEGOTIATIONS AS REPRESENTATIVES OF RECOGNIZED EMPLOYEE ORGANIZATIONS AND, THEREFORE, A NUMBER OF EMPLOYEES WERE AUTHORIZED TO AND DID PERFORM TRAVEL FOR THE PURPOSE STATED WITH THE EXPECTATION OF REIMBURSEMENT. ACCORDINGLY, THE ASSISTANT SECRETARY REQUESTS THAT THE CITED DECISION BE LIMITED IN ITS APPLICATION TO FUTURE CASES AND THAT RETROACTIVE APPLICATION NOT BE REQUIRED WITH RESPECT TO THE FOUR EMPLOYEES HERE INVOLVED NOR TO ANY OTHER EMPLOYEES OF THE DEPARTMENT WHO ARE SIMILARLY SITUATED. ALSO, HE POINTS OUT THAT BETWEEN THE DATE OF THE EXECUTIVE ORDER AND THE DATE A COPY OF OUR DECISION WAS RECEIVED THE DEPARTMENT ON MANY OCCASIONS AUTHORIZED OFFICIAL TRAVEL DURING WHICH NEGOTIATIONS WITH OFFICIALS OF THE DEPARTMENT OCCURRED. IN A NUMBER OF SUCH CASES THE EMPLOYEES PERFORMED OFFICIAL FUNCTIONS IN ADDITION TO THOSE PERFORMED AS REPRESENTATIVES (NEGOTIATORS) OF THEIR ORGANIZATIONS. HOWEVER, NO SPECIAL EFFORT WAS MADE TO DOCUMENT ALL FUNCTIONS PERFORMED AND EXTENSIVE EFFORT WOULD BE REQUIRED TO RECONSTRUCT THE FACTS IN ORDER TO ESTABLISH ENTITLEMENT OR NONENTITLEMENT OF THE EMPLOYEES TO THE EXPENSES OF TRAVEL.

IN OUR DECISION OF APRIL 9, 1965, B-156287, WE POINTED OUT THAT WHILE THE NEGOTIATIONS UNDER DISCUSSION MAY BE CONDUCTED ON OFFICIAL TIME ANY AGENCY MAY REQUIRE THAT THEY BE CONDUCTED DURING NONDUTY HOURS AND FURTHER, WHILE THERE MAY RESULT MUTUAL BENEFITS AS IN ANY NEGOTIATION BETWEEN THE REPRESENTATIVES OF EMPLOYEES AND MANAGEMENT, THE EMPLOYEE REPRESENTATIVES PRIMARILY ARE ACTING IN THE INTEREST OF THEIR ORGANIZATIONS RATHER THAN CONDUCTING OFFICIAL BUSINESS FOR THE GOVERNMENT. THEREFORE, WE CONCLUDED THAT IN THE ABSENCE OF AUTHORIZING LEGISLATION, TRAVELING EXPENSES AND OVERTIME COMPENSATION ARE NOT PAYABLE TO THE EMPLOYEE REPRESENTATIVES WHILE FUNCTIONING IN THAT CAPACITY. IT FOLLOWS THAT THE PAYMENTS IN QUESTION WERE NOT AUTHORIZED BY LAW AND WE ARE WITHOUT AUTHORITY TO EITHER VALIDATE THEM OR WAIVE COLLECTION THEREOF. THEREFORE, WE ARE UNABLE TO GIVE FAVORABLE CONSIDERATION TO THE REQUEST OF THE ASSISTANT SECRETARY. CONCERNING THOSE EMPLOYEES WHO IN THE PAST HAVE PERFORMED OFFICIAL DUTIES AS WELL AS REPRESENTING THEIR ORGANIZATIONS WHILE IN A TRAVEL STATUS WE WOULD NOT BE REQUIRED TO QUESTION THE PAYMENTS MADE IN CASES WHERE IT CAN BE DETERMINED THAT OFFICIAL DUTIES WERE PERFORMED SEPARATE AND APART FROM THE FUNCTION OF NEGOTIATING ON BEHALF OF SUCH ORGANIZATIONS.

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