09:0333(40)CA - Treasury, IRS, Jacksonville District and NTEU; Treasury, IRS, Jacksonville and Atlanta Districts and NTEU -- 1982 FLRAdec CA
[ v09 p333 ]
09:0333(40)CA
The decision of the Authority follows:
9 FLRA No. 40 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE JACKSONVILLE DISTRICT Respondent Case No. 4-CA-498 and NATIONAL TREASURY EMPLOYEES UNION Charging Party DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE JACKSONVILLE AND ATLANTA DISTRICTS Respondent Case No. 4-CA-561 and NATIONAL TREASURY EMPLOYEES UNION Charging Party DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION 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. THE JUDGE FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION, AND THE CHARGING PARTY FILED A BRIEF IN RESPONSE THERETO. 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 DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. THE JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN REFUSING TO PROVIDE NATIONAL TREASURY EMPLOYEES UNION (NTEU) REPRESENTATIVES CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME AND/OR PER DIEM AND TRAVEL EXPENSES AS APPROPRIATE IN CONNECTION WITH THEIR PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS HELD ON MAY 15 AND JUNE 17, 1980. HE FURTHER FOUND THAT, CONTRARY TO THE ALLEGATIONS OF THE COMPLAINT IN CASE NO. 4-CA-561, AND IN THE ABSENCE OF ANY COGENT ARGUMENT IN SUPPORT THEREOF, THE RESPONDENT'S ACTIVITIES DID NOT ALSO CONSTITUTE A SEPARATE VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE. ACCORDINGLY, HE RECOMMENDED THAT THIS ALLEGATION OF THE COMPLAIN BE DISMISSED. BASED ON THE AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979) AND BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO CALIFORNIA, 4 FLRA NO. 40(1980), ENFORCE, 672 F.2D 732(9TH CIR. 1982), THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE AS ALLEGED IN THE COMPLAINT. THE AUTHORITY FURTHER ADOPTS THE JUDGE'S CONCLUSION AND RATIONALE THAT THE RECORD FAILS TO SUPPORT A FINDING THAT THE RESPONDENT'S CONDUCT ALSO VIOLATED SECTION 7116(A)(5) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS CASE. ORDER PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE RESPONDENT DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN, OR ANY OTHER BARGAINING UNIT EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME DURING THE EMPLOYEES' REGULAR WORK HOURS AND WHEN THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE ACTIVITY. (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 ACTIONS IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR THE PERFORMANCE OF HIS COLLECTIVE BARGAINING DUTIES ON MAY 14 AND 15, 1980, AND MAKE HIM WHOLE FOR ANY ANNUAL LEAVE HE MAY HAVE UTILIZED ON SUCH DATES, AND PAY TO WAYNE PIERCE AND UNION REPRESENTATIVES CALVIN BARNLUND AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED TO. (B) POST AT ITS VARIOUS OFFICES IN THE ATLANTA AND JACKSONVILLE DISTRICTS 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 THE DIRECTOR OF THE JACKSONVILLE AND ATLANTA DISTRICTS, RESPECTIVELY, AND SHALL BE POSTED AND MAINTAINED 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) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION IV, 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. IT IS FURTHER ORDERED THAT THE SECTION 7116(A)(5) ALLEGATION OF THE CONSOLIDATED COMPLAINT BE, AND IT HEREBY IS, DISMISSED. ISSUED, WASHINGTON, D.C., JUNE 30, 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 CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OR ANY OTHER BARGAINING UNIT EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING 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 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 TO BARGAINING UNIT EMPLOYEES ATTRIBUTABLE TO SUCH PARTICIPATION. 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. WE WILL PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR THE PERFORMANCE OF HIS COLLECTIVE BARGAINING DUTIES ON MAY 14 AND 15 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE MAY HAVE UTILIZED ON THE ABOVE DATES, AND PAY TO CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES EMPLOYEES ENGAGED IN OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED TO. (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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV, WHOSE ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING, ATLANTA, GA. 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324. -------------------- ALJ$ DECISION FOLLOWS -------------------- ROBERT FINER, ESQUIRE HARRY G. MASON, ESQUIRE FOR THE RESPONDENT LINDA J. NORWOOD, ESQUIRE BRENDA S. GREEN, ESQUIRE FOR THE GENERAL COUNSEL JOYCE F. GLUCKMAN FOR THE CHARGING PARTY BEFORE: BURTON S. STERNBURG ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET SEQ. PURSUANT TO CHARGES FILED ON JULY 2, 1980 AND AUGUST 22, 1980, IN CASE NOS. 4-CA-498 AND 4-CA-561, RESPECTIVELY, BY THE NATIONAL TREASURY EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A CONSOLIDATED COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON NOVEMBER 19, 1980, BY THE ACTING REGIONAL DIRECTOR FOR REGION IV, ATLANTA, GEORGIA. THE CONSOLIDATED COMPLAINT ALLEGES IN SUBSTANCE, THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS, (HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED SECTIONS 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN REFUSING TO GRANT OFFICIAL TIME AND/OR PAY TRAVEL AND PER DIEM EXPENSES TO THREE EMPLOYEES WHO PARTICIPATED AS NTEU REPRESENTATIVES IN COLLECTIVE BARGAINING NEGOTIATIONS WITH VARIOUS REPRESENTATIVES OF THE RESPONDENT. A HEARING IN THE CAPTIONED MATTER WAS HELD ON DECEMBER 17, 1980, IN JACKSONVILLE, FLORIDA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED POST-HEARING BRIEFS ON JANUARY 30, 1981, WHICH HAVE BEEN DULY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, /1/ INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS. FINDING OF FACT THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES WORKING IN THE IRS'S JACKSONVILLE, FLORIDA AND ATLANTA, GEORGIA, DISTRICT OFFICES. ON APRIL 17, 1980, THE REGIONAL DIRECTOR FOR REGION IV, FEDERAL LABOR RELATIONS AUTHORITY, APPROVED A SETTLEMENT AGREEMENT BETWEEN THE NTEU AND THE IRS JACKSONVILLE, FLORIDA, DISTRICT IN A PRIOR UNFAIR LABOR PRACTICE PROCEEDING. IN THE SETTLEMENT AGREEMENT THE IRS AGREED TO BARGAIN WITH THE NTEU WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF ITS DECISION TO ESTABLISH SPECIAL GROUPS TO PROCESS TAX SHELTER CASES AT IRS'S MIAMI, FORT LAUDERDALE AND NORTH DADE, FLORIDA LOCATIONS. PURSUANT TO THE AFOREMENTIONED SETTLEMENT AGREEMENT, THE PARTIES SUBSEQUENTLY AGREED TO MEET ON MAY 15, 1980, IN JACKSONVILLE, FLORIDA, FOR PURPOSES OF NEGOTIATING THE IMPACT AND IMPLEMENTATION OF THE SPECIAL TAX SHELTER GROUPS. MR. TIMOTHY WELSH, THE NTEU ATTORNEY WHO WAS IN CHARGE OF THE SCHEDULED NEGOTIATIONS FOR THE NTEU, REQUESTED MR. CALVIN BARNLUND, AN IRS EMPLOYEE STATIONED IN ORLANDO, FLORIDA, AND MR. WAYNE PIERCE, AN IRS EMPLOYEE STATIONED IN MIAMI, FLORIDA, TO SERVE AS MEMBERS OF THE NTEU NEGOTIATING TEAM. ON MAY 14, 1980, MR. BARNLUND LEFT ORLANDO, FLORIDA, AT ABOUT 7:45 A.M. AND DROVE HIS CAR TO JACKSONVILLE, FLORIDA. AFTER ARRIVING AT JACKSONVILLE, FLORIDA, ABOUT 10:45 A.M., MR. BARNLUND ASSISTED THE IRS REGIONAL COUNSEL IN THE PREPARATION OF A TAX COURT CASE FOR THE REMAINDER OF THE DAY. MR. BARNLUND SPENT THE EVENING AT THE TRAVEL LODGE MOTEL. ON MAY 15, 1980, MR. BARNLUND ATTENDED AND ACTIVELY PARTICIPATED IN THE SCHEDULED BARGAINING NEGOTIATIONS AS A MEMBER OF THE NTEU'S NEGOTIATING TEAM. THE NEGOTIATIONS BEGAN AT 8:30 A.M. AND LASTED UNTIL 4:00 P.M. WITH A BREAK FOR LUNCH. MR. BARNLUND INCURRED BREAKFAST, LUNCH AND DINNER EXPENSES ON MAY 15, 1980. ALTHOUGH NO FINAL AGREEMENT WAS REACHED ON MAY 15, IT WAS MUTUALLY AGREED THAT THE NEGOTIATING MEETING SHOULD END THAT DAY. MR. BARNLUND SPENT THE EVENING AGAIN AT THE TRAVEL LODGE MOTEL. THE NEXT MORNING, MAY 16, 1980, MR. BARNLUND AGAIN ASSISTED THE IRS REGIONAL COUNSEL IN THE PREPARATION OF A TAX COURT CASE. MR. BARNLUND LEFT JACKSONVILLE LATER THAT DAY AROUND 1:35 P.M. AND ARRIVED AT HIS HOME IN ORLANDO, FLORIDA AROUND 5:00 P.M. ON OR ABOUT MAY 30, 1980, MR. BARNLUND SUBMITTED A TRAVEL VOUCHER FOR HIS TRAVEL EXPENSES INCURRED DURING THE MONTH OF MAY 1980. SUBSEQUENTLY, THE IRS REJECTED THAT PORTION OF THE VOUCHER WHICH CLAIMED EXPENSES FOR MAY 15, 1980, THE DAY MR. BARNLUND PARTICIPATED IN THE COLLECTIVE BARGAINING NEGOTIATIONS AS A MEMBER OF THE NTEU'S NEGOTIATING TEAM. MR. JACK FRIZZEL, AN IRS SUPERVISOR, REJECTED THE MAY 15, 1980, PORTION OF THE CLAIM BECAUSE THE EXPENSES WERE " . . . NOT AUTHORIZED UNDER THE CONTRACT." MR. BARNLUND HAS NEVER BEEN REIMBURSED BY THE IRS FOR THE EXPENSES INCURRED ON MAY 15, 1980. THE NTEU, HOWEVER, DID SUBSEQUENTLY REIMBURSE MR. BARNLUND. MR. PIERCE TRAVELED BY AIRPLANE ON THE AFTERNOON OF MAY 14, 1980, FROM MIAMI, FLORIDA, TO JACKSONVILLE, FLORIDA, TO PARTICIPATE IN THE MAY 15, 1980, NEGOTIATIONS. AFTER DRIVING AND PARKING HIS CAR AT THE AIRPORT, MR. PIERCE PURCHASED A TICKET FOR A FLIGHT WHICH LEFT MIAMI AT 3:30 P.M. AND ARRIVED IN JACKSONVILLE AT 5:00 P.M. MR. PIERCE SPENT THE NIGHT AT THE TRAVEL LODGE MOTEL IN JACKSONVILLE, FLORIDA. THE NEXT DAY, MAY 15, 1980, MR. PIERCE PARTICIPATED IN THE NEGOTIATIONS AS A MEMBER OF THE NTEU'S BARGAINING TEAM. FOLLOWING THE COMPLETION OF THAT DAY'S NEGOTIATIONS, MR. PIERCE CAUGHT A FLIGHT BACK TO MIAMI AND SUBSEQUENTLY ARRIVED AT HIS HOME AT ABOUT 5:00 P.M. ON OR ABOUT MAY 30, 1980, MR. PIERCE SUBMITTED HIS TRAVEL VOUCHER TO IRS FOR THE EXPENSES INCURRED AS MEMBER OF THE NTEU'S BARGAINING TEAM ON MAY 15, 1980. ADDITIONALLY, MR. PIERCE SUBMITTED A WRITTEN REQUEST FOR ADMINISTRATIVE TIME FOR TRAVEL. SUBSEQUENTLY, MR. RON PROWLER, AN IRS SUPERVISOR, DENIED MR. PIERCE'S VOUCHER AND HIS REQUEST FOR THREE HOURS OF ADMINISTRATIVE TIME ON THE GROUND THAT "THE POLICY OF THE DISTRICT IS THAT TRAVEL TIME INCURRED TO ATTEND UNION NEGOTIATION MEETINGS MUST BE ON THE EMPLOYEE'S TIME AND DOES NOT QUALIFY FOR ADMINISTRATIVE TIME". MR. PIERCE WAS REQUIRED TO TAKE THREE HOURS ANNUAL LEAVE AND HAS NEVER BEEN REIMBURSED BY THE IRS FOR HIS EXPENSES ON MAY 15, 1980, WHEN HE PARTICIPATED IN THE NEGOTIATIONS AS A MEMBER OF THE NTEU'S BARGAINING TEAM. MR. PIERCE WAS SUBSEQUENTLY REIMBURSED BY THE UNION FOR THE EXPENSES HE INCURRED ON MAY 15, 1980. PURSUANT TO AN ANNOUNCED IRS DECISION TO MERGE THE JACKSONVILLE DISTRICT EP/EO (EMPLOYEE PLANS/EXEMPT ORGANIZATION) DIVISION INTO THE ATLANTA DISTRICT EP/EO DIVISION, THE PARTIES AFTER AN EXCHANGE OF LETTERS AND DISCUSSIONS AGREED TO MEET FOR NEGOTIATIONS CONCERNING THE MERGER ON JUNE 17, 1980, IN ATLANTA, GEORGIA. PRIOR TO THE MEETING, THE IRS WAS INFORMED THAT THE NTEU WOULD BE REPRESENTED BY MS. JOYCE GLUCKSMAN AND MR. TIMOTHY WELSH, NTEU ATTORNEYS, MR. HAL DUBIN, PRESIDENT OF NTEU'S ATLANTA CHAPTER, AND MR. ORVILLE GUINN, PRESIDENT OF NTEU'S JACKSONVILLE CHAPTER. MR. GUINN LEFT HIS HOME IN JACKSONVILLE, FLORIDA AT AROUND 5:15 A.M. ON JUNE 17, 1980 AND CAUGHT A 7:15 A.M. AIRLINE FLIGHT TO ATLANTA, GEORGIA. UPON ARRIVAL IN ATLANTA HE TOOK AN AIRPORT LIMOUSINE TO THE MEETING AND ARRIVED AT THE MEETING LOCATION ABOUT 9:30 A.M. THE NEGOTIATING MEETING COMMENCED AT 10:00 A.M. AND CONTINUED THROUGH THE DAY WITH A BREAK FOR LUNCH. MR. GUINN LEFT THE MEETING EARLY IN THE AFTERNOON AND TOOK A TAXI TO THE AIRPORT. MR. GUINN CAUGHT A 4:15 P.M. FLIGHT AND ARRIVED AT HIS HOME IN JACKSONVILLE SOMETIME BETWEEN 5:00 P.M. AND 6:00 P.M. ON OR ABOUT JUNE 30, 1980, MR. GUINN SUBMITTED A VOUCHER TO THE JACKSONVILLE IRS DISTRICT FOR THE EXPENSES HE INCURRED ON JUNE 17, 1980. THE VOUCHER WAS REJECTED ON THE GROUND THAT "IT IS THE POSITION OF INTERNAL REVENUE SERVICE THAT WE ARE NOT OBLIGATED TO PAY TRAVEL EXPENSES AND PER DIEM FOR MEMBERS OF NTEU NEGOTIATING TEAM". SUBSEQUENTLY, AFTER BECOMING A MEMBER OF THE IRS ATLANTA DISTRICT DUE TO THE MERGER, MR. GUINN RESUBMITTED HIS VOUCHER TO THE ATLANTA DISTRICT. THE ATLANTA DISTRICT DENIED HIS VOUCHER FOR THE SAME REASON SET FORTH ABOVE. MR. GUINN HAS NEVER BEEN PAID BY IRS FOR THE EXPENSES INCURRED IN CONNECTION WITH THE JUNE 17, 1980 NEGOTIATING SESSION. THE NTEU DID, HOWEVER, SUBSEQUENTLY REIMBURSE HIM FOR THE EXPENSES INCURRED. WITH RESPECT TO MR. GUINN'S PARTICIPATION AT THE JUNE 17, 1980, NEGOTIATION SESSION, MR. GUINN TESTIFIED THAT HE ACTED AS A CONSULTANT TO THE NTEU ATTORNEYS, PASSED NOTES TO THE ATTORNEYS, CAUCUSED WITH THEM AND ON OCCASION SPOKE OUT AT THE MEETING. MR. TRAMMELL, WHO WAS ON THE IRS NEGOTIATING TEAM, RECALLS THAT OTHER THAN SPEAKING OUT ONCE AT THE MEETING MR. GUINN DID LITTLE ELSE. HE DID NOT SEE MR. GUINN PASSING NOTES OR CAUCUSING. MR. CASSIDY, ANOTHER MEMBER OF THE IRS NEGOTIATING TEAM, TESTIFIED THAT OTHER THAN CONFERRING WITH MR. WELSH ON ONE OCCASION, MR. GUINN DID NOT ACTUALLY PARTICIPATE IN THE NEGOTIATIONS. DISCUSSION AND CONCLUSIONS ALL PARTIES CONCEDE THAT RESOLUTION OF THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT TURNS ON THE INTERPRETATION OF SECTION 7131 OF THE STATUTE. THE PARTIES ALSO ACKNOWLEDGE THAT THE FEDERAL LABOR RELATIONS AUTHORITY, (HEREINAFTER CALLED THE AUTHORITY), HAS ADDRESSED THE ISSUE IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, AND A SUBSEQUENT DECISION IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPT. OF TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40. HOWEVER, RESPONDENT TAKES THE POSITION THAT THE FACTS OF THE INSTANT CASES ARE DISTINGUISHABLE IN THAT (1) THE MAY 15, 1980 NEGOTIATIONS, IN WHICH MR. BARNLUND AND MR. PIERCE PARTICIPATED, DID NOT QUALIFY AS "COLLECTIVE BARGAINING NEGOTIATIONS" SINCE THEY WERE HELD PURSUANT TO A PRIOR UNFAIR LABOR PRACTICE SETTLEMENT, AND (2) MR. GUINN'S ACTIONS OR ACTIVITIES IN THE JUNE 17, 1980, NEGOTIATIONS WERE SO LIMITED THAT HE SHOULD BE DISQUALIFIED FROM RECEIVING THE BENEFITS, I.E. TRAVEL AND PER DIEM EXPENSES, ACCORDED UNION NEGOTIATORS UNDER THE AUTHORITY'S INTERPRETATION AND GUIDANCE, SUPRA. ADDITIONALLY, RESPONDENT TAKES THE POSITION THAT (1) THE AUTHORITY'S INTERPRETATION AND GUIDANCE, SUPRA, IS INCORRECT, (2) THE AUTHORITY EXCEEDED ITS STATUTORY AUTHORITY IN THE INTERPRETATION AND GUIDANCE, AND (3) THE INTERPRETATION AND GUIDANCE IS CONTRARY TO LAW IN THAT IT REQUIRES THE IRS TO EXPEND MONEY FOR PER DIEM AND TRAVEL ASSOCIATED WITH NEGOTIATIONS DESPITE THE FACT THAT CONGRESS HAS NOT SPECIFICALLY APPROPRIATED MONEY FOR THIS PURPOSE. /2/ THE GENERAL COUNSEL AND THE CHARGING PARTY, ON THE OTHER HAND, TAKE THE POSITION THAT ALL THE NEGOTIATIONS FALL WITHIN THE AMBIT OF THE AUTHORITY'S INTERPRETATION AND GUIDANCE AND THE AUTHORITY'S DECISION IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, SUPRA. IN SUCH CIRCUMSTANCES, IT IS THEIR FURTHER POSITION THAT THE THREE EMPLOYEES INVOLVED HEREIN ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND TRAVEL EXPENSES. ADDITIONALLY, THEY TAKE THE POSITION THAT MR. GUINN DID PARTICIPATE IN THE JUNE 17, 1980, NEGOTIATIONS AND, THAT IN ANY EVENT, THE QUANTUM OF HIS PARTICIPATION IN NOT CONTROLLING. IN THE INTERPRETATION AND GUIDANCE AND THE DECISION IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, THE AUTHORITY CONCLUDED THAT EMPLOYEES ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND TRAVEL EXPENSES WHILE PERFORMING UNION REPRESENTATIONAL RESPONSIBILITIES IN THE AREA OF COLLECTIVE BARGAINING NEGOTIATIONS. ACCORDINGLY, IF THE MEETINGS HERE INVOLVED FALL WITHIN THE AMBIT OF "NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT", THEN THE THREE EMPLOYEES ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND TRAVEL EXPENSES. CONTRARY TO THE CONTENTION OF THE RESPONDENT, I FIND THAT THE MEETING HELD ON MAY 15, 1980, CONSTITUTED "NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT" WITHIN THE MEANING OF SECTION 7131 OF THE STATUTE. /3/ THE MERE FACT THAT THE NEGOTIATIONS WERE A PRODUCT OF A PRIOR UNFAIR LABOR PRACTICE SETTLEMENT IS OF NO IMPORT. IT IS THE CHARACTER OF THE MEETING WHICH IS DETERMINATIVE NOT THE ORIGIN. TO HOLD OTHERWISE, AS URGED BY RESPONDENT, WOULD ALLOW AGENCIES OR ACTIVITIES TO ESCAPE THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY UNION REPRESENTATIVES DURING COLLECTIVE BARGAINING NEGOTIATIONS HELD PURSUANT TO AUTHORITY ORDERS IN UNFAIR LABOR PRACTICE PROCEEDINGS. UNDER THE RESPONDENT'S THEORY, THIS RESULT WOULD HAVE TO FOLLOW BECAUSE THE SUBSEQUENT BARGAINING WOULD NOT BE BASED UPON THE MUTUAL OBLIGATION OF THE PARTIES, BUT RATHER THE SINGLE OBLIGATION IMPOSED ON THE RESPONDENT BY THE AUTHORITY'S ORDER. SUCH A RESULT WOULD ENCOURAGE ACTIVITIES AND AGENCIES TO DEFY THE STATUTE AND ONLY BARGAIN WITH A UNION AFTER AN UNFAIR LABOR PRACTICE FINDING AND AN APPROPRIATE ORDER FROM THE AUTHORITY. WITH RESPECT TO RESPONDENT'S REMAINING DEFENSE CONCERNING THE AMOUNT OF PARTICIPATION BY MR. GUINN IN THE JUNE 17, 1980, NEGOTIATIONS, I FIND SUCH DEFENSE OR POSITION TO BE WITHOUT MERIT. IN THIS LATTER CONTEXT I NOTE THAT MR. GUINN DID PARTICIPATE IN THE NEGOTIATIONS AND THAT, IN ANY EVENT, NEITHER THE AUTHORITY NOR THE STATUTE SETS FORTH ANY MINIMUM STANDARD OF PARTICIPATION WHICH MUST BE MET BEFORE A UNION NEGOTIATOR IS ENTITLED TO BE PAID THE TRAVEL AND PER DIEM EXPENSES INCURRED IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT. IN VIEW OF THE FOREGOING CONCLUSIONS, I FIND THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN REFUSING TO PROVIDE NTEU REPRESENTATIVES CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME AND/OR PER DIEM AND TRAVEL EXPENSES IN CONNECTION WITH THEIR PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS HELD ON MAY 15 AND JUNE 17, 1980, RESPECTIVELY. CONTRARY TO THE ALLEGATIONS OF THE COMPLAINT AND IN THE ABSENCE OF ANY COGENT ARGUMENT IN SUPPORT THEREOF, I FIND THAT THE RESPONDENT'S ACTIVITIES DESCRIBED IN DETAIL ABOVE, DID NOT ALSO CONSTITUTE A SEPARATE VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE. ACCORDINGLY, I SHALL RECOMMEND THAT THIS ALLEGATION OF THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. HAVING FOUND AND CONCLUDED THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING: ORDER PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SECTION 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OR ANY AGENCY EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING 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 TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING ACTIVITY. (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 ACTIONS IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON MAY 14 AND 15, 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE MAY HAVE UTILIZED ON SUCH DATED, AND PAY TO WAYNE PIERCE AND UNION REPRESENTATIVES CALVIN BARNLUND AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES AS EMPLOYEE ENGAGED IN OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED. (B) POST AT ITS VARIOUS OFFICES IN THE ATLANTA AND JACKSONVILLE DISTRICTS WHERE IN UNIT EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX". COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 4, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY REPRESENTATIVES OF JACKSONVILLE AND ATLANTA DISTRICTS IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY SUCH REPRESENTATIVES 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. IT IS FURTHER ORDERED THAT THE 7116(A)(5) ALLEGATION OF THE COMPLAINT BE, AND IT HEREBY IS, DISMISSED. BURTON S. STERNBURG ADMINISTRATIVE LAW JUDGE DATED: MARCH 23, 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 NOT FAIL OR REFUSE TO PROVIDE TO CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OR ANY AGENCY EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING ACTIVITY OR AGENCY. 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. WE WILL PROVIDE UNION REPRESENTATIVES CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON MAY 14, 15 AND JUNE 17, 1980, RESPECTIVELY, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE THEY UTILIZED ON THE ABOVE DATES AND PAY TO CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES EMPLOYEES ENGAGED IN OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FOR THE DATE OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE ADDRESS IS: 1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING, ATLANTA, GA 30309, AND WHOSE TELEPHONE NUMBER IS 404-881-2324. --------------- FOOTNOTES$ --------------- /1/ IN THE ABSENCE OF ANY OBJECTION, CHARGING PARTY'S MOTION TO CORRECT TRANSCRIPT IS HEREBY GRANTED. /2/ AS AN ADMINISTRATIVE LAW JUDGE, I AM OBLIGATED TO FOLLOW THE AUTHORITY'S PRONOUNCEMENTS AND DECISIONS UNTIL SUCH TIME AS THEY ARE OVERRULED BY HIGHER AUTHORITY. ACCORDINGLY, INASMUCH AS THE LATTER THREE CONTENTIONS OF RESPONDENT EITHER ATTACK THE AUTHORITY'S INTERPRETATION AND GUIDANCE AND/OR HAVE BEEN CONSIDERED AND REJECTED BY THE AUTHORITY IN A PRIOR DECISION, I.E. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, SUPRA, I AM CONSTRAINED TO, AND DO HEREBY, REJECT THEM. /3/ THE RESPONDENT, CITING THE WORDS "MUTUAL OBLIGATION" IN THE DEFINITION OF "COLLECTIVE BARGAINING" SET FORTH IN SECTION 7103(A)(12) OF THE STATUTE, TAKES THE POSITION THAT THE MAY 15, 1980 NEGOTIATIONS WERE NOT COLLECTIVE BARGAINING NEGOTIATIONS WITHIN THE MEANING OF SECTION 7131 SINCE THE PRIOR SETTLEMENT ONLY IMPOSED THE OBLIGATION TO BARGAIN ON RESPONDENT. ACCORDING TO RESPONDENT, IN THE ABSENCE OF A "MUTUAL OBLIGATION" THE NEGOTIATIONS DID NOT CONSTITUTE "COLLECTIVE BARGAINING" WITHIN THE MEANING OF SECTION 7131.