[ v08 p769 ]
08:0769(129)CA
The decision of the Authority follows:
8 FLRA No. 129
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE AND
CENTRAL REGION, INTERNAL
REVENUE SERVICE
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 80
Charging Party
Case No. 5-CA-560
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
JUDGE'S RECOMMENDED DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE AND CENTRAL REGION, INTERNAL REVENUE SERVICE,
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO JOHN KIRTLEY AND KENNETH
MURAWSKI OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE
NATIONAL TREASURY EMPLOYEES UNION, AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 80, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING
UNION-AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL
TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURRED
DURING THE EMPLOYEES' REGULAR WORK HOURS AND WHEN THE EMPLOYEES WOULD
OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, RESPONDENT
WILL NOT FAIL OR REFUSE TO PROVIDE NECESSARY TRAVEL AND PER DIEM
EXPENSES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE UNION REPRESENTATIVES JOHN KIRTLEY AND KENNETH MURAWSKI
OFFICIAL TIME FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON
JUNE 18, 1980 FOR THE TIME WHEN THEY WOULD OTHERWISE HAVE BEEN IN A WORK
OR PAID LEAVE STATUS, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE THEY
UTILIZED ON THAT DATE, AND UPON SUBMISSION OF AN APPROPRIATE VOUCHER,
PAY TO JOHN KIRTLEY AND KENNETH MURAWSKI WHATEVER TRAVEL AND PER DIEM
EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE
ENTITLED.
(B) POST AT ITS VARIOUS OFFICES IN THE CENTRAL REGION OF THE INTERNAL
REVENUE SERVICE WHEREIN UNIT EMPLOYEES ARE LOCATED, COPIES OF THE
ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY AN
AUTHORIZED REPRESENTATIVE, AND SHALL BE POSTED AND MAINTAINED BY SAID
REPRESENTATIVE FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS
AUTHORITY, IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., MAY 26, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO JOHN KIRTLEY AND KENNETH
MURAWSKI OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 80, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DURING UNION-AGENCY NEGOTIATIONS OF A COLLECTIVE
BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING
NECESSARY TRAVEL TIME AS OCCURRED DURING THE EMPLOYEES' REGULAR WORK
HOURS AND WHEN THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE
STATUS. IN ADDITION, WE WILL NOT FAIL OR REFUSE TO PROVIDE NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFACE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PROVIDE UNION REPRESENTATIVES JOHN KIRTLEY AND KENNETH
MURAWSKI OFFICIAL TIME FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL
DUTIES ON JUNE 18, 1980 FOR THE TIME WHEN THEY WOULD OTHERWISE HAVE BEEN
IN A WORK OR PAID LEAVE STATUS, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE
UTILIZED ON THAT DATE AND, UPON SUBMISSION OF AN APPROPRIATE VOUCHER,
PAY TO JOHN KIRTLEY AND KENNETH MURAWSKI WHATEVER TRAVEL AND PER DIEM
EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE
ENTITLED.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OF COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 175 W. JACKSON BLVD., SUITE A-1359, CHICAGO, ILLINOIS
60604, AND WHOSE TELEPHONE NUMBER IS: (312) 886-3468.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE AND
CENTRAL REGION, INTERNAL REVENUE SERVICE
RESPONDENT
AND
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 80
CHARGING PARTY
CASE NO. 5-CA-560
JAMES E. ROGERS, JR., ESQUIRE
FOR THE RESPONDENT
SANDRA LEBOLD, ESQUIRE
FOR THE GENERAL COUNSEL
MICHAEL BARKOW, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS MATTER AROSE UNDER THE PROVISIONS OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET
SEQ., (HEREIN REFERRED TO AS THE STATUTE). ESSENTIALLY, THE CASE
INVOLVES WHETHER RESPONDENT IS OBLIGATED UNDER THE STATUTE TO GRANT
OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES TO A EMPLOYEE-UNION
REPRESENTATIVES RELATIVE TO THEIR PARTICIPATION IN COLLECTIVE BARGAINING
NEGOTIATIONS WITH THE RESPONDENT.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED ON MAY 28, 1980, THE
GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY, BY THE
REGIONAL DIRECTOR FOR REGION 5, ISSUED A COMPLAINT AND NOTICE OF HEARING
ON JULY 30, 1980 ALLEGING THAT THE DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE AND CENTRAL REGION, INTERNAL REVENUE SERVICE (THE
RESPONDENT), ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF
SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO GRANT JOHN
KIRTLEY AND KENNETH MURAWSKI, REPRESENTATIVES OF THE NATIONAL TREASURY
EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 80, (THE
UNION) OFFICIAL TIME IN WHICH TO ENGAGE IN MID-TERM CONTRACT
NEGOTIATIONS OVER THE IMPACT AND IMPLEMENTATION OF RESPONDENT'S DECISION
TO USE THE OPEN-SPACE CONCEPT AT ITS DETROIT APPEAL OFFICE. RESPONDENT
DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE AND A HEARING BEFORE
THE UNDERSIGNED WAS CONDUCTED ON NOVEMBER 7, 1980.
AT THE HEARING ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES. BRIEFS WERE FILED BY RESPONDENT AND COUNSEL FOR THE GENERAL
COUNSEL.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL, THE NATIONAL TREASURY EMPLOYEES UNION AND
THE NATIONAL TREASURY EMPLOYEES UNION CHAPTER 80 HAVE BEEN THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE FOR AN APPROPRIATE UNIT OF
RESPONDENT'S EMPLOYEES. HEADQUARTERS FOR THE INTERNAL REVENUE SERVICE'S
CENTRAL REGION IS LOCATED IN CINCINNATI, OHIO, AND THE REGION IS
COMPOSED OF VARIOUS SATELLITE OFFICES INCLUDING POST OF DUTY OFFICES AND
BRANCH OFFICES.
2. BY LETTER DATED MARCH 6, 1980 AND MARCH 14, 1980 THE UNION
SUBMITTED PROPOSALS FOR NEGOTIATIONS ON THE IMPACT AND IMPLEMENTATION OF
MOVING THE DETROIT APPEALS OFFICE TO CHANGE THE PRESENT CLOSED-OFFICE
ARRANGEMENT TO AN OPEN-SPACE ARRANGEMENT. THE LETTERS WERE SIGNED BY
JOHN KIRTLEY, PRESIDENT NTEU CHAPTER 80. ON MAY 14, 1980, KIRTLEY AND
EDWIN L. FRANZ, CHIEF PERSONNEL OPERATIONS SECTION COMMUNICATED BY
TELEPHONE REGARDING THE NEGOTIATIONS. A DATE FOR THE NEGOTIATIONS WAS
SELECTED AND FRANZ STATED THAT TRAVEL EXPENSES WOULD NOT BE PAID FOR
UNION NEGOTIATORS AND OFFICIAL TIME WOULD BE ALLOWED ONLY FOR TIME SPENT
AT THE BARGAINING TABLE. AT KIRTLEY'S REQUEST, FRANZ CONFIRMED THE
CONVERSATION IN WRITING IN A LETTER DATED MAY 15, 1980. KIRTLEY HAD
REQUESTED THAT THE NEGOTIATIONS BE HELD IN DETROIT, MICHIGAN SO THE TEAM
COULD SEE THE PHYSICAL FACILITIES BUT FRANZ MAINTAINED THAT THE
RESPONDENT WANTED THE SESSION TO BE HELD IN CINCINNATI, OHIO. THE
NEGOTIATIONS WERE SCHEDULED FOR JUNE 18, 1980, AT 10:00 A.M. AT THE
CINCINNATI FEDERAL OFFICE BUILDING.
3. KIRTLEY INFORMED THE OTHER MEMBERS OF THE UNION'S NEGOTIATING
TEAM INCLUDING KENNETH J. MURAWSKI, A STEWARD AND CHAPTER 80 VICE
PRESIDENT FROM DETROIT, MICHIGAN OF THE DATE AND TIME FOR THE
NEGOTIATIONS. HE ALSO INFORMED MURAWSKI THAT THE RESPONDENT WOULD NOT
PAY TRAVEL EXPENSES AND THAT OFFICIAL TIME WOULD ONLY BE GRANTED FOR
TIME SPENT IN THE NEGOTIATIONS.
4. ON JUNE 18, 1980, UNION AND RESPONDENT NEGOTIATORS MET IN
CINCINNATI AS SCHEDULED. THE UNION WAS REPRESENTED BY JOHN KIRTLEY, KEN
MURAWSKI, EDWARD BLASKY, CHIEF STEWARD, CINCINNATI APPEALS DIVISION AND
JOSEPH KAPLAN, ASSISTANT COUNSEL, NTEU (NOT AN IRS EMPLOYEE). THE
RESPONDENT WAS REPRESENTED BY FOUR MANAGEMENT OFFICIALS. THE SESSION
BEGAN AT APPROXIMATELY 10:30 A.M. AND ENDED AT 4:45 P.M.
5. THE SPECIFIC DETAILS CONCERNING OFFICIAL TIME, TRAVEL AND PER
DIEM EXPENSES FOR KIRTLEY AND MURAWSKI ARE AS FOLLOWS:
A. ON JUNE 18, 1980, KIRTLEY LEFT HIS HOME IN INDIANAPOLIS AT 6:30
A.M. AND ARRIVED AT THE CINCINNATI FEDERAL BUILDING AT 10:30 A.M. HE
IMMEDIATELY RETURNED TO HIS HOME WHEN THE SESSION WAS OVER AT 4:45 P.M.
HE TRAVELLED TO CINCINNATI IN HIS PRIVATE AUTOMOBILE. THE DISTANCE WAS
APPROXIMATELY 242 MILES ROUND TRIP. HE PAID $4.00 FOR PARKING AND ATE
LUNCH AND DINNER WHILE IN TRAVEL STATUS. IN VIEW OF HIS PRIOR
CONVERSATION WITH FRANZ, KIRTLEY DID NOT SUBMIT A VOUCHER FOR PAYMENT.
TO DO SO WOULD HAVE BEEN A FUTILE ACT AND, THEREFORE, WAS NOT NECESSARY.
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, 4 FLRA NO. 40. UNDER PROTEST,
HE TOOK THREE HOURS ANNUAL LEAVE AFTER A DISCUSSION WITH HIS MANAGER.
THE LEAVE WAS TAKEN FOR TIME SPENT IN TRAVEL BUT NOT AT THE ACTUAL
NEGOTIATION SESSION. IT SHOULD BE NOTED THAT INDIANAPOLIS WAS ON
EASTERN STANDARD TIME AND CINCINNATI ON EASTERN DAYLIGHT TIME.
B. ON JUNE 18, 1980, MURAWSKI LEFT HIS HOME IN WARREN, MICHIGAN AT
5:00 A.M. AND FLEW TO CINCINNATI. HE ARRIVED IN CINCINNATI AT
APPROXIMATELY 8:30 A.M. AND ENTERED THE NEGOTIATION ROOM AT THE
CINCINNATI FEDERAL OFFICE BUILDING PRIOR TO 10:00 A.M. WHEN THE
NEGOTIATIONS WERE OVER, HE IMMEDIATELY RETURNED HOME ARRIVING AT
APPROXIMATELY 10:00 P.M. HE INCURRED EXPENSES OF AN AIRLINE TICKET,
MILEAGE TO AND FROM THE AIRPORT, MEALS, AND A LIMO TO AND FROM THE
CINCINNATI FEDERAL BUILDING. HE SUBMITTED A TRAVEL VOUCHER CLAIMING
THESE EXPENSES AND THE RESPONDENT DISAPPROVED THE VOUCHER ON JULY 2,
1980 BECAUSE THE TRAVEL WAS NOT OFFICIAL.
DISCUSSION AND CONCLUSIONS OF LAW
THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE, SECTION
7131(A) PROVIDES:
ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN NEGOTIATION
OF A COLLECTIVE
BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE AUTHORIZED OFFICIAL
TIME FOR SUCH PURPOSES,
INCLUDING ATTENDANCE AT IMPASSE PROCEEDINGS, DURING THE TIME THE
EMPLOYEE OTHERWISE WOULD BE
IN A DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL TIME IS
AUTHORIZED UNDER THIS
SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED AS
REPRESENTING THE AGENCY
FOR SUCH PURPOSES.
IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, THE AUTHORITY
EXPANDED UPON THE MEANING AND APPLICATION OF SECTION 7131(A) OF THE
STATUTE. IT CONCLUDED THAT THE OFFICIAL TIME PROVISIONS ENCOMPASS ALL
NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN AN EXCLUSIVE
REPRESENTATIVE AND AN AGENCY, "REGARDLESS OF WHETHER SUCH NEGOTIATIONS
PERTAIN TO THE NEGOTIATION OR RENEGOTIATION OF A COLLECTIVE BARGAINING
AGREEMENT." THE AUTHORITY ALSO CONCLUDED THAT EMPLOYEES REPRESENTING AN
EXCLUSIVE REPRESENTATIVE ARE ENTITLED TO RECEIVE OFFICIAL TIME DURING
THE TIME THEY WOULD OTHERWISE BE IN A DUTY STATUS UNDER SECTION 7131(A)
OF THE STATUTE, WHICH ENTITLEMENT INCLUDES PAYMENTS BY THE AGENCY "FOR
THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES." IN REACHING THE
FOREGOING CONCLUSIONS, THE AUTHORITY INTERPRETED THE LANGUAGE AND
LEGISLATIVE HISTORY OF THE STATUTE INCLUDING SECTION 7101(A) WHICH
STATES THAT "LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL
SERVICE ARE IN THE PUBLIC INTEREST." FURTHER, THE AUTHORITY STATED THAT
ONLY BY AFFORDING UNION NEGOTIATORS OFFICIAL TIME, TRAVEL AND PER DIEM
EXPENSES MAY EFFECTIVE UNION REPRESENTATION COMPARABLE TO THE
REPRESENTATION OF MANAGEMENT BE ACHIEVED UNDER THE STATUTE, AND ONLY IN
THIS MATTER MAY BOTH PARTIES EFFECTIVELY FULFILL THEIR RESPECTIVE
OBLIGATIONS UNDER SECTION 7114(B) OF THE STATUTE TO MEET AT REASONABLE
TIMES AND AS FREQUENTLY AS MAY BE NECESSARY FOR GOOD-FAITH NEGOTIATIONS
ON CONDITIONS OF EMPLOYMENT.
IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40,
THE RESPONDENT CHALLENGED THE AUTHORITY'S VIEWS AND MADE THESE
CONTENTIONS:
1. THE GUIDANCE AND INTERPRETATION CONTAINED IN 2 FLRA NO. 31 IS
ARBITRARY AND CAPRICIOUS,
AN ABUSE OF DISCRETION AND CONSTITUTES THE ESTABLISHMENT OF A POLICY
WHICH IS BEYOND THE
STATUTORY AUTHORITY OF THE AUTHORITY.
2. THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES PURSUANT TO 2 FLRA
NO. 31 IS CONTRARY TO
LAW IN THAT MONEY HAS NOT BEEN SPECIFICALLY APPROPRIATED FOR THIS
PURPOSE.
THE FOREGOING ARGUMENTS, WHICH ARE AGAIN ASSERTED IN THE CASE BEFORE
ME, WERE REJECTED BY ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO, WHO
STATED AS FOLLOWS:
AS AN ADMINISTRATIVE LAW JUDGE I AM CONSTRAINED TO FOLLOW THE
AUTHORITY'S
PRONOUNCEMENTS. THEREFORE, TO ADDRESS ARGUMENTS WHICH ATTACK A
STATUTORY INTERPRETATION MADE
BY THE AUTHORITY OR QUESTION THE AUTHORITY'S POWER OR JUDGMENT IN
TREATING A MATTER WOULD
SERVE NO USEFUL PURPOSE, ESPECIALLY WHERE, AS HERE, THE AUTHORITY'S
POSITION IS CLEAR AND
UNMISTAKABLE. ACCORDINGLY, I REJECT RESPONDENT'S ARGUMENT
CHALLENGING THE AUTHORITY'S
DISCRETION IN 2 FLRA NO. 31 AS BEING ARBITRARY AND CAPRICIOUS, AN
ABUSE OF DISCRETION AND
BEYOND ITS STATUTORY AUTHORITY. SIMILARILY, I REJECT RESPONDENT'S
CONTENTION THAT THE PAYMENT
OF PER DIEM AND TRAVEL EXPENSES, AS REQUIRED BY THE AUTHORITY IN 2
FLRA NO. 31, IS CONTRARY TO
LAW.
ON APPEAL, THE AUTHORITY AFFIRMED AND ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S DECISION. THAT DECISION IS BINDING UPON ME AND IS EQUALLY
APPLICABLE TO THE INSTANT PROCEEDING.
IN VIEW OF THE FOREGOING, I FIND AND CONCLUDE THAT RESPONDENT FAILED
AND REFUSED TO COMPLY WITH SECTION 7131 OF THE STATUTE AND THEREBY
VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY THE FOLLOWING
CONDUCT: REFUSING TO GIVE TO UNION REPRESENTATIVES JOHN KIRTLEY AND
KENNETH MURAWSKI OFFICIAL TIME FOR THEIR PARTICIPATION IN COLLECTIVE
BARGAINING NEGOTIATIONS ON JUNE 18, 1980 INCLUDING NECESSARY TRAVEL TIME
AS OCCURRED DURING THEIR REGULAR WORK HOURS, AND INCLUDING NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES.
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE
THE FOLLOWING:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL
RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE AND CENTRAL REGION, INTERNAL REVENUE
SERVICE, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO JOHN KIRTLEY AND KENNETH
MURAWSKI OR ANY AGENCY
EMPLOYEE, WHILE ENGAGING IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, AND NATIONAL
TREASURY EMPLOYEES UNION CHAPTER 80, THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE, DURING UNION -
AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL
TIME FOR SUCH PARTICIPATION
INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEES'
REGULAR WORK HOURS AND WHEN
THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN
ADDITION, NECESSARY TRAVEL
AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYEE ACTIVITY OR
AGENCY.
(B) IN ANY LIKE OR RELATED MATTER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICY OF THE STATUTE:
(A) PROVIDE UNION REPRESENTATIVES JOHN KIRTLEY AND KENNETH MURAWSKI
OFFICIAL TIME FOR THE
PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON JUNE 18, 1980, AND
MAKE THEM WHOLE FOR THE
ANNUAL LEAVE THEY UTILIZED ON THAT DATE, AND UPON SUBMISSION OF AN
APPROPRIATE VOUCHER, PAY TO
JOHN KIRTLEY AND KENNETH MURAWSKI WHATEVER TRAVEL AND PER DIEM
EXPENSES AN EMPLOYEE ENGAGED IN
OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED.
(B) POST AT ITS VARIOUS OFFICES IN THE CENTRAL REGION WHEREIN UNIT
EMPLOYEES ARE LOCATED,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID
NOTICE, TO BE FURNISHED BY
THE REGIONAL DIRECTOR FOR REGION 5, AFTER BEING SIGNED BY AN
AUTHORIZED REPRESENTATIVE, SHALL
BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY
IT FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 16, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL PROVIDE UNION REPRESENTATIVES JOHN KIRTLEY AND KENNETH
MURAWSKI OFFICIAL TIME FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL
DUTIES ON JUNE 18, 1980, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE
UTILIZED ON THAT DATE AND, UPON SUBMISSION OF AN APPROPRIATE VOUCHER,
PAY TO JOHN KIRTLEY AND KENNETH MURAWSKI WHATEVER TRAVEL AND PER DIEM
EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE
ENTITLED.
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO JOHN KIRTLEY AND KENNETH
MURAWSKI OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 80, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE
BARGAINING AGREEMENT, OFFICIAL TIME INCLUDING NECESSARY TRAVEL TIME AS
OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE
WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, WE
SHALL PAY ANY NECESSARY TRANSPORTATION AND PER DIEM EXPENSES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 175 W. JACKSON BLVD., SUITE A-1359, CHICAGO, ILLINOIS
60604.