United States, Department of the Treasury, Internal Revenue Service, Washington, D.C. (Respondent) and National Treasury Employees Union (Charging Party)

[ v61 p146 ]

61 FLRA No. 30

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
(Respondent)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Charging Party)

SF-CA-02-0320
(59 FLRA 282 (2003))

_____

DECISION AND ORDER
ON REMAND

August 10, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This unfair labor practice case is before the Authority on a remand from the United States Court of Appeals for the District of Columbia Circuit. National Treasury Employees Union v. FLRA, 392 F.3d 498 (D.C. Cir. 2004) (NTEU v. FLRA). In its original decision in this case, the Authority found that the unfair labor practice (ULP) charge was untimely and as a result dismissed the ULP complaint alleging that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with an arbitration award involving compensating employees for time spent commuting to their temporary duty assignment. United States Department of the Treasury, Internal Revenue Service, Washington, D.C., 59 FLRA 282 (2003) (IRS). The Authority found that neither the General Counsel nor the Charging Party had presented arguments that warranted a departure from Authority precedent finding that the limitation period for filing a ULP charge over the failure to comply with an arbitrator's award under the Statute begins on the date the award becomes final and binding. The court vacated the Authority's decision finding the ULP charge untimely and remanded the case to the Authority for further proceedings.

      Consistent with the court's decision, we find that the ULP charge in this case was timely filed. In so finding, we adopt the court's approach for determining whether a ULP charge challenging the failure to comply with an arbitrator's award is timely. Further, we will no longer apply the Authority's prior interpretation of the limitation period for filing a ULP charge challenging the failure to comply with an arbitrator's award. We further conclude, for reasons explained below, that the Respondent violated § 7116(a)(1) and (8) of the Statute as alleged in the complaint.

II.      Background

A.      Facts

      The Charging Party is the exclusive representative of a nationwide consolidated unit of employees, including employees at the Respondent's facilities at Seattle, Tacoma, Bellevue and Everett, Washington. The Respondent and the Charging Party are parties to a national collective bargaining agreement (CBA). Article 29, Section 3E of the CBA provides, in relevant part, as follows:

When an employee travels from his/her residence to a point of destination within his/her official duty station, he/she should not be required to leave home any earlier or arrive home any later than he/she does when he/she travels to and from his/her usual assigned place of business.

Judge's Decision at 3.

      During the 1998 fiscal year, the Respondent directed Revenue Officers and Revenue Agents whose posts of duty were in certain offices within a 40 mile radius around the Seattle Washington Headquarters Office to report on a recurring basis to the Seattle Headquarters. Some employees' commute times increased as a result. The Charging Party sought compensation for these employees based on Article 29, Section 3E, which the Respondent denied. The Charging Party then filed a grievance which the Respondent denied and the matter was submitted to arbitration.

      Arbitrator Samuel A. Vitaro issued his award (Vitaro award) on July 24, 2000. The Respondent filed exceptions to the award which were denied on August 17, 2001 in United States Dep't of the Treasury, Internal Revenue Service, 57 FLRA 444 (2001) (Chairman Cabaniss concurring) (IRS I). The Respondent filed [ v61 p147 ] a motion for reconsideration that was denied in United States Dep't of the Treasury, Internal Revenue Service, 57 FLRA 592 (2001) (IRS II). [n2] In denying the motion, the Authority noted:

[T]he Arbitrator addressed the stipulated issue of whether application of the agreement provision to the employees' temporary assignment would violate law, rule, or regulation, including 5 C.F.R. § 551.422. The Arbitrator concluded that the agreement provision conflicted with law and regulation, including 5 C.F.R. § 551.422, but was nevertheless enforceable under the Portal-to-Portal Act, 29 U.S.C. § 254 (the Act), which contains exceptions to the general prohibition on compensation for commute time. The Arbitrator found that the exception allowing compensation for commute travel where authorized by an express provision of a written contract was applicable here because the parties' agreement contained an "express provision" within the meaning of 29 U.S.C. § 254(b)(1).

IRS II, 57 FLRA at 592-93 (footnote omitted).

      On January 24, 2002, the Department of Justice, on behalf of the Respondent, filed a petition for review (petition) of the Authority's decision with the United States Court of Appeals for the District of Columbia Circuit. On February 21, 2002, the Charging Party filed the ULP charge before us in this case alleging that the Respondent violated the Statute by refusing to comply with the Vitaro award. On March 5, 2002, the Court of Appeals granted a motion for voluntary dismissal of the petition. On July 24, 2002, the General Counsel issued the ULP complaint described above.

      The complaint, in part, states that:

9. In his award, Arbitrator Vitaro directed Respondent to take certain affirmative actions, including identifying employees who were affected by Respondent's breach and compensating employees who meet standards of 5 C.F.R. 551.208 (c)(1)-3 in accordance with the parties' [CBA] and the Fair Labor Standards Act (FLSA).
     . . . .
12. Since January 24, 2002 and continuing to date, Respondent has failed and refused to take any of the actions directed by the Arbitrator's order.

Judge's Decision at 4 (quoting complaint, Exhibit A). In its answer, the Respondent "admitted" the "allegations set forth in paragraph 9 [and] . . . paragraph 12 of the Complaint." Judge's Decision at 4 and Exhibit B.

      Subsequently, the General Counsel filed a motion for summary judgment and the Respondent filed, among other things, an opposition to the General Counsel's motion and a cross-motion for summary judgment.

      "[B]ecause the parties agreed that there are no factual issues in dispute," the Judge issued an order notifying the parties that this matter would be decided on motion for summary judgment. Judge's Decision at 2.

B.      Administrative Law Judge's Decision

      Relying on Authority precedent, including Equal Opportunity Commission, Wash., D.C., 53 FLRA 487 (1997) (EEOC), the Judge found that the Authority's decision on the Respondent's exceptions to the Vitaro award was final on August 17, 2001, and that as a result the six-month period for filing a charge, pursuant to § 7118(a)(4)(A) of the Statute, expired on February 17, 2002. The Judge concluded that because the charge was filed (February 21, 2002) more than six months after the period for filing a charge under § 7118(a)(4)(A), and as there was no reason to toll the limitation period, the charge was untimely. The Judge thus denied the General Counsel's motion for summary judgment; granted the Respondent's cross-motion, and recommended that the complaint be dismissed.

C.      Authority's Decision in 59 FLRA 282

      The Authority, among other things, rejected the General Counsel's and the Charging Party's assertion that the time period for filing the ULP charge alleging noncompliance with an award should commence when the noncompliance occurs, not when the award was issued. The Authority noted, in this regard, that its decisions in EEOC and Dep't of the Air Force, Headquarters, 832d Combat Support Group, DPCE, Luke Air Force Base, Ariz., 24 FLRA 1021 (1986) (Luke AFB) and the Sixth Circuit Court of Appeals decision in Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985), have established that the 6-month period for filing a ULP charge alleging noncompliance with an arbitrator's award commences on the date the award becomes final and binding. The Authority reaffirmed its findings in EEOC and Luke AFB and found as noted by the Authority in EEOC that "[b]oth the language of the Statute and established Authority precedent lead us to [ v61 p148 ] conclude that the limitations period for filing a ULP charge for failure to comply with an arbitrator's award commences on the date the award becomes final and binding. Such a rule puts all parties to the arbitration proceedings on notice as to their respective rights and obligations." IRS, 59 FLRA at 288 (quoting EEOC, 53 FLRA at 493).

      In reaffirming EEOC, the Authority rejected the General Counsel's assertion that EEOC was not applicable in the circumstances of this case and found that neither the General Counsel nor the Charging Party had presented arguments that warranted a departure from its precedent. Accordingly, the Authority found that the General Counsel and the Charging Party had not established that the Judge erred in applying EEOC.

      The Authority thus found, based on the holding in EEOC, that the limitation period for filing the ULP charge for the Respondent's failure to comply with the award commenced on the date the award became final and binding, which was August 17, 2001, the date the Authority issued its decision on the exceptions. Accordingly, the Authority found that the time limit for filing the charge expired on February 17, 2002. After considering other arguments raised by the General Counsel and the Charging Party, the Authority concluded that the ULP charge was untimely because the Charging Party did not file the charge until February 21, 2002, four days late. Therefore, the Authority dismissed the complaint.

D.      The D.C. Circuit's Decision

      Examining § 7118(a)(4) of the Statute, the court stated that under this section, the "six-month filing period for ULP charges starts at the time the `alleged unfair labor practice . . . occurred.'" NTEU v. FLRA, 392 F.3d at 500. Noting that the alleged ULP consisted of the failure to comply with the arbitrator's award, the court found that the "plain language of the [S]tatute thus requires that the filing period cannot begin at least until there has been a failure to comply with an arbitration award." Id.

      The court rejected the Authority's finding that, "because [an] agency has an obligation to comply with an award as soon as it becomes final, 5 U.S.C. § 7122(b), and because the [Agency] never took the actions mandated by the award, the failure to comply occurred when the award became final on August 17, 2001." Id. The court stated that this "reading confuses the onset of the obligation with the onset of the failure to fulfill that obligation." Id. The court further stated that:

If an award orders an action that will take place in the future, a party may fail to comply with the award in two ways. First, it may expressly reject its obligation under the award at any time. Second, it may simply not take the steps ordered by the award, but it cannot be said to have done this at least until the deadline for taking action has passed.

Id. at 500-01.

      The court found that in this case the Arbitrator's award imposed two major obligations on the Agency:

First, it enjoined the [Agency] from "failing or refusing to implement [commuting compensation under the collective bargaining agreement] as to covered employees." Nothing on the record indicates whether the IRS complied with this section of the agreement. The second obligation thus forms the basis for the ULP charge: the IRS was required to submit a list of employees affected by the location transfers so that they could be compensated. This list was due on October 1, 2001, 45 days after the award became final.

NTEU v. FLRA, 392 F.3d at 501.

      Based on these obligations, the court found that the first opportunity for the Agency to fail to comply with the award was on October 1, when it missed the deadline to submit names to NTEU. The court stated that while the Agency "arguably could have triggered the limitations period earlier by affirmatively rejecting its obligations under the award, it did not do so until [the Agency] Area Counsel wrote as much to NTEU's counsel on January 31, 2002." Id. The court thus found that "the earliest possible date that a ULP can be said to have occurred is October 1, 2001. Because NTEU's charge was filed on February 21, 2002, it was well within the six-month filing period and was timely." Id. Accordingly, the court granted the Union's petition for review, vacated the Authority's decision, and remanded the case for further proceedings.

III.      Positions of the Parties

      The positions of the parties on the timeliness issue are set forth in the original decision, IRS, 59 FLRA FLRA at 284-86 and will not be set forth again here. As to the merits of the complaint that were not addressed in the original decision, the parties make the following arguments.

A.      General Counsel

      The General Counsel asserts that under Authority precedent it is a ULP to fail to comply with a final arbitration [ v61 p149 ] award. The General Counsel contends that in this case Arbitrator Vitaro issued an award finding that the Respondent violated Article 29, Section 3E of the parties' CBA when it required certain unit employees to perform Custom Service work in Seattle, Washington, rather than their regular duty stations in Tacoma, Everett, or Bellevue, Washington. The General Counsel states that the Arbitrator found that the employees, who were temporarily assigned, were required to report for duty in Seattle by the beginning of their regular daily tour of duty and depart no sooner than the completion of their regular tour of duty. The General Counsel asserts that the Arbitrator found that the Portal-to-Portal Act permits compensation for commute time in the circumstances of this case and, as a remedy, required the Respondent to compensate the affected employees for the additional commute incurred as a result of their temporary work assignment. The General Counsel contends that the award became final and binding when the Authority issued its decision denying the Respondent's exceptions to the award and its motion for reconsideration. The General Counsel asserts that the Respondent's admitted failure and refusal to comply with a final and binding award constitutes a violation of § 7116(a)(1) and (8) of the Statute.

      The General Counsel contends that Respondent may not "collaterally attack" the award in this forum. Brief in support of General Counsel's Motion for Summary Judgment (General Counsel's Brief) at 6. According to the General Counsel, "it appears from [the] Respondent's Answer that it believes the [c]ourt's [decision] in [United States] Dep't of the Air Force v. FLRA, 952 F.2d 446 (D.C. Cir. 1991), provides a basis for finding the Arbitrator's award to be deficient on its merits." Id. The General Counsel asserts that the Authority refused to consider this argument in IRS I and II and that the Respondent cannot raise such argument here.

      As a remedy, the General Counsel contends that the Respondent should be ordered to comply with the award and that the Notice of the violation be "signed by the Director of the Internal Revenue Service and posted throughout the nationwide bargaining unit." General Counsel's Brief at 7. According to the General Counsel, this remedy is appropriate because of the "significance" of the award to unit employees and the Respondent's "refusal to comply with the arbitration award emanated at the highest level of Respondent." Id. at 7-8.

B.      Respondent

      The Respondent "does not dispute that it has not implemented the award's requirement that the Agency pay overtime to certain employees for time spent commuting." Respondent's Opposition to the General Counsel's Motion for Summary Judgment; Cross Motion for Summary Judgment (Respondent's Opposition) at 2. According to the Respondent, "[it] does not believe [that] there are any facts in dispute." Id.

      However, the Respondent denies that it committed a ULP. According to the Respondent, implementation of the award would require it "to engage in an illegal act, specifically the compensation of employees for their commute time." Id. The Respondent contends that the "doctrine of sovereign immunity precludes ordering a [G]overnment agency to provide monetary relief absent a showing that the [G]overnment has unambiguously consented to that particular remedy." Id. The Respondent asserts that "[e]xpending funds to pay employees for their commute time is precluded by government-wide regulation, specifically 5 C.F.R. § 551.422[,] which holds that commute time within the geographic limits of the employee's official duty station can never constitute hours of work and, hence, is noncompensable." [n3] Id. The Respondent contends that "[a]s the [G]overnment has never consented to provide monetary compensation to its employees for time spent commuting, ordering such a remedy is beyond the authority of an arbitrator." Id. at 2-3. In support, the Respondent cites Matter of: William Carragher, Comp. Gen. B-231475 (1988); Barth v. United States, 568 F.2d 1329 (Ct. Cl. 1978) (Barth). The Respondent further asserts that a collective bargaining agreement cannot supersede a Government-wide regulation. Therefore, the Respondent asserts that the General Counsel's Motion for Summary Judgment should be denied and summary judgment be granted in the Respondent's favor.

      Alternatively, the Respondent asserts that no decision should be made in this case until the Authority has ruled on a related negotiability appeal currently pending before the Authority. [n4] According to the Respondent, the appeal involves the same contract provision that is involved in this case and a ruling on the appeal would [ v61 p150 ] "establish the illegality of the provision at issue" and show that the Arbitrator "overstepped his authority in ordering compensation for commute time in direct conflict with 5 C.F.R. § 551.422." Respondent's Opposition at 21.

      As to the remedy, the Respondent contends that if a ULP violation is found any "posting should be limited to employees employed in the Seattle, Tacoma, Bellevue and Everett posts of duty and the posting signed by the appropriate local management official." Id. The Respondent asserts that there is no showing that its actions affected employees beyond the identified areas and the official most appropriate to sign the notice for these locations would be the Area Director, Small Business and Self Employed Division (SB/SE), Compliance Area 12, IRS (Seattle District).

IV.      Analysis and Conclusions

A.      The ULP Was Timely Filed

      Consistent with the court's opinion discussed above, we find that the ULP charge in this case was timely filed. In so finding, we adopt the court's approach for determining whether a ULP charge challenging the failure to comply with an arbitrator's award is timely under § 7118(a)(4)(A) of the Statute.

      In addressing the timeliness of the ULP charge, the court stated that "[u]nder § 7118(a)(4), the six-month filing period for ULP charges starts at the time the `alleged unfair labor practice . . . occurred.'" NTEU v. FLRA, 392 F.3d at 500. As the ULP charge here concerns the failure to comply with the Arbitrator's award, the court found that the "plain language of [§ 7118(a)(4)(A) of] the [S]tatute . . . requires that the filing period cannot begin at least until there has been a failure to comply with an arbitration award." Id. We adopt the court's approach, and we will no longer follow prior Authority decisions to the contrary. See, e.g., Equal Employment Opportunity Comm'n, Wash., D.C., 53 FLRA 487 (1997) (EEO).

      In this and future cases alleging a failure to comply with an arbitration award, as in other types of alleged ULPs, the focus under § 7118(a)(4)(A) will be on, as the court stated, when the "`alleged [ULP] . . . occurred.'" NTEU v. FLRA, 392 F.3d at 500. A determination under § 7118(a)(4)(A) as to when a party has failed to comply with an arbitration award will involve a case-by-case determination based on what the award requires and what the party's actions are following the award. In making this determination, we will be guided by the approach taken by the court:

If an award orders an action that will take place in the future, a party may fail to comply with the award in two ways. First, it may expressly reject its obligation under the award at any time. Second, it may simply not take the steps ordered by the award, but it cannot be said to have done this at least until the deadline for taking action has passed.

Id. at 500-01.

      Consistent with the court's reasoning, the six-month statutory filing period for filing a ULP charge may be triggered: (1) when a party expressly notifies a party that it will not comply with the obligations required by an award, or (2) when an award establishes a deadline for implementing obligations required by the award and the deadline passes without the party taking any action to implement the award. We also recognize that there may be situations where there has been no express declaration of noncompliance or no deadline established by the award. In such situations, the facts of each case, based upon what an award requires and what a party's actions have been following the award, will determine whether a party has failed to comply with an arbitration award and hence when the time period under § 7118(a)(4)(A) has begun to run. For example, it would be reasonable to look at what is necessary to effect compliance in terms of time and effort. It also would be reasonable to consider the efforts by one or both sides to communicate with the other to inquire about or relate the status of compliance activities.

      In setting forth the above guidance, we remind the parties that these considerations are not intended to be all-inclusive. As the court's decision reflects, the circumstances of each case before the Authority that involve a timeliness issue must be considered in determining when a ULP can be said to have "occurred." Additionally, in order for parties to arbitration proceedings to assess with reasonable certainty their obligations to each other, we strongly encourage parties and arbitrators to request and establish, respectively, deadlines for compliance with the requirements of an award. The establishment of deadlines could eliminate many of the problems parties experience in determining whether and when an award has been implemented.

      Accordingly, based on the above, we find that the ULP charge challenging the failure to comply with an arbitrator's award is timely under § 7118(a)(4)(A) of the Statute. [ v61 p151 ]

B.      The Respondent Violated § 7116(a)(1) and (8) of the Statute by Failing to Comply with the Arbitrator's Award

      The Respondent "does not dispute that it has not implemented the award's requirement that the Agency pay overtime to certain employees for time spent commuting." Respondent's Opposition at 2. However, the Respondent argues that the "doctrine of sovereign immunity precludes ordering a [G]overnment agency to provide monetary relief absent a showing that the [G]overnment has unambiguously consented to that particular remedy." Id. The Respondent contends that expending funds to pay the subject employees for commute time is precluded by Government-wide regulation 5 C.F.R. § 551.422. The Respondent thus seeks to collaterally attack the award by raising a sovereign immunity defense.

      When a party's exception disputes an award's consistency with a law, we review the question of law raised by the award and the exception de novo. NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See id. Additionally, as a general rule, an agency cannot collaterally attack an arbitration award during the processing of a ULP complaint alleging an unlawful failure to comply with that award. See United States Air Force, Air Force Logistics Command, Wright-Patterson AFB, Ohio, 15 FLRA 151, 153-54 (1984), aff'd sub nom., Department of the Air Force v. FLRA, 775 F.2d 727, 734-35 (6th Cir. 1985). However, a claim of federal sovereign immunity can be raised by an agency at any time. See Department of the Army v. FLRA, 56 F.3d 273, 275 (D.C. Cir. 1995).

      The United States is immune from liability under the doctrine of sovereign immunity. See Lane v. Pena, 518 U.S. 187 (1996). Sovereign immunity can be waived by statute, but a waiver will be found only if "unequivocally expressed in statutory text . . . and will not be implied[.]" Id. at 192. Thus, a Federal agency will be subject to a monetary claim only if the statute on which the claim is based unambiguously establishes that the Government has waived its sovereign immunity to permit suit, and that the scope of that waiver extends to an award of money damages. Id. See also INS, Los Angeles Dist., Los Angeles, Cal., 52 FLRA 103 (1996). As such, an award by an arbitrator that an agency provide monetary damages to a union must be supported by statutory authority to impose such a remedy.

      In the underlying case, the Arbitrator enforced Article 29, Section 3E of the parties' agreement as an express provision permitting compensation for commute travel under the Portal-to-Portal Act, 29 U.S.C. § 254(b). Exceptions to the prohibition against compensating an employee for commute time are set forth in 29 U.S.C. § 254(b), which states that such activity is compensable by either "an express provision of a written or nonwritten contract . . . between [the employee's] collective-bargaining representative and his employer," or a custom or practice in effect, at the time of such activity." The Arbitrator's remedy directing the Respondent to compensate affected employees for time spent commuting to their temporary duty assignment is thus supported by statutory authority.

      The Respondent relies on 5 C.F.R. § 551.422 as the basis for its claim that the award violates the doctrine of sovereign immunity. However, this assertion provides no basis for finding that the award violates the Federal Government's sovereign immunity because the award is based on 29 U.S.C. § 254(b)--a statute that in the circumstances presented waived the Government's sovereign immunity. Additionally, the Respondent's reliance on Comp. Gen. Decision B-231475 and the court's decision in Barth to support its claim that compensation for commuting expenses could not be required provides no basis for finding that the award violates sovereign immunity because the statutory provision involved here was not involved in those cases. As the award is supported by statutory authority, the Respondent has not established that it violates the "doctrine of sovereign immunity[.]" Respondent's Opposition at 2.

      Additionally, as it concerns the Respondent's assertion concerning the negotiability appeal in Internal Revenue Service, the Authority issued its decision in that case on September 9, 2003. See Internal Revenue Service, 59 FLRA 119. In that decision, the Authority found the same language at issue in the present case to be contrary to law. That does not, however, amount to a violation of sovereign immunity in the present case. Accordingly, we find that the award is enforceable and Respondent violated § 7116(a)(1) and (8) of the Statute by failing to comply with the Arbitrator's award.

C.      The General Counsel's Request to Direct that the Notice be Signed by the Director of the Agency and Posted throughout the Nationwide Bargaining Unit Is Denied

      "In determining the scope of a posting requirement, the Authority considers the two purposes served by the posting of a notice." United States Dep't of Justice, Federal Bureau of Prisons, Office of Internal [ v61 p152 ] Affairs, Wash., D.C., 55 FLRA 388, 394 (1999) (citations omitted). First, the notice provides evidence to unit employees that the rights guaranteed under the Statute will be vigorously enforced. Second, in many cases, the posting is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute. See id. at 394-95. The Authority has denied requests for nationwide postings where violations were committed solely by the local subdivision of an agency and did not involve higher-level organizational components of the agency. See, e.g., United States Dep't of Veterans Affairs, 56 FLRA 696, 699-700 (2000); Wyoming Air National Guard, Cheyenne, Wyoming, 27 FLRA 759, 763 (1987).

      In this case, the General Counsel has not established that the Respondent's refusal to comply with the award "emanated [from] the highest level of Respondent." General Counsel's Brief at 7-8. We find, therefore, that the Notice should be signed by the Area Director for the Seattle District and the posting limited to that area.

V.     Order

      Consistent with this decision, the General Counsel's Motion for Summary Judgement is granted and the Respondent's Cross-Motion for Summary Judgment is denied. Therefore, the Respondent shall take the following action.

      Pursuant to § 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Treasury, Internal Revenue Service, Washington, D.C. shall:

      1.      Cease and desist from:

           (a)      Failing and refusing to fully comply with the arbitrator's award issued by Arbitrator Samuel A. Vitaro on July 24, 2000, which became final and binding on August 17, 2001.

           (b)      In any like or related manner interfering with, restraining or coercing unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)      Promptly and fully comply with the July 24, 2000 final and binding award of Arbitrator Samuel A. Vitaro directing, among other things, that: (1) bargaining unit employees who were required to travel outside their normal tour of duty to their temporary duty assignment be identified, including the length of their temporary duty assignment; and (2) affected bargaining unit employees be compensated for time spent commuting to their temporary duty assignment.

           (b)      Post at its facilities in the Seattle District where bargaining 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 Area Director for the Seattle District and shall be posted and maintained 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 ensure that such Notices are not altered, defaced, or covered by any other material.

           (c)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v61 p153 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Treasury, Internal Revenue Service, Washington, D.C. violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to fully comply with the arbitrator's award issued by Arbitrator Samuel A. Vitaro on July 24, 2000, which became final and binding on August 17, 2001.

WE WILL NOT in any like or related manner interfere with, restrain or coerce unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL promptly and fully comply with the July 24, 2000 final and binding award of Arbitrator Samuel A. Vitaro directing, among other things, that: (1) bargaining unit employees required to travel outside their normal tour of duty to their temporary duty assignment be identified, including the length of the temporary duty assignment; and (2) affected bargaining unit employees be compensated for time spent commuting to their temporary duty assignment.

  _______________________
                (Activity)

Dated:__________ By:__________________________
                                          (Signature) (Title)

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 its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103-1791, and whose telephone number is: (415) 356-5002.


Concurring Opinion of Member Carol Waller Pope

      I agree with the majority's decision to find the complaint timely filed, to find that the Respondent violated the Statute by refusing to comply with the disputed arbitration award, and to deny the GC's exception regarding signing and posting the notice.

      I write separately because, although I agree that there is no sovereign immunity bar in this case, I reach this conclusion for reasons that differ from the majority's. In particular, I would find no sovereign immunity bar because, for the reasons stated in my dissent in National Treasury Employees Union, 59 FLRA 119, 124-25 (2003) (Member Pope, dissenting), I would find that the disputed contract provision is consistent with, and enforceable under, both the Fair Labor Standards Act (FLSA) and OPM regulations at issue. I note, however, that even under the majority's view that OPM regulations preclude negotiation of provisions such as the one disputed here, see id. at 122-23, there is no sovereign immunity bar. In this regard, sovereign immunity is waived by statute, not regulation. See Pittman v. Sullivan,