14:0127(26)CA - Treasury, IRS and Treasury, IRS Austin Service Center and NTEU and NTEU Chapter 72 -- 1984 FLRAdec CA
[ v14 p127 ]
14:0127(26)CA
The decision of the Authority follows:
14 FLRA No. 26 UNITED STATES DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE AND UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 72 Charging Party Case No. 6-CA-30019 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that the Respondent be ordered to cease and desist therefrom and take certain affirmative action. /1/ Thereafter, the Respondent filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge and finds that no prejudicial error was committed. The rulings are hereby affirmed. upon consideration of the Judge's Decision and the entire record in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge concluded that the Respondent's failure to pay employee Knight for his travel and per diem expenses incurred as a union negotiator during negotiations conducted July 6-9, 1982, August 3-6, 1982, and November 2-5, 1982, constituted a failure and refusal to comply with section 7131(a) of the Statute in violation of section 7116(a)(1) and (8) of the Statute. Subsequent to the issuance of the Judge's Decision, the United States Supreme Court concluded in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439(1983) that the obligation of an agency under section 7131(a) of the Statute to provide official time to employees representing an exclusive representative in the negotiation of a collective bargaining agreement does not encompass the payment of travel expenses and per diem allowances. Pursuant to that decision, and for the reasons set forth by the Court, the Authority concludes herein that the Respondent did not fail or refuse to comply with the provisions of section 7131(a) of the Statute. Therefore, it follows that the Respondent did not violate section 7116(a)(1) and (8) of the Statute. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 6-CA-30019 be, and it hereby is, dismissed. /2/ Issued, Washington, D.C., March 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND UNITED STATES DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, AUSTIN SERVICE CENTER Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 72 Charging Party Case No.: 6-CA-30019 W. B. Riley, Esquire Gary A. Anderson, Esquire William P. Lehman, Esquire For the Respondent Anne Ellzey, Esquire For the Charging Party Susan E. Jelen, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This case, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., /3/ and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1 et seq., solely involves Respondent's conceded refusal to pay travel and per diem expenses for an employee-union negotiator. The Charge was filed on October 21, 1982 (Exh. 1 to General Counsel's Motion for Summary Judgment), a First Amended Charge was filed on December 20, 1982 (Exh. 4 to General Counsel's Motion for Summary Judgment), and the Complaint and Notice of Hearing issued on December 28, 1982. The Notice of Hearing set the hearing for February 15, 1983, in Austin Texas. Counsel for Charging Party, because of previously scheduled annual leave on the date of the hearing, moved to Postpone the Date for Hearing by Motion dated January 7, 1983, and received in this Office on January 12, 1983. On January 25, 1983, Counsel for General Counsel filed with the Regional Director a Motion for Summary Judgment which was referred to this Office for disposition by the Regional Director on January 25, 1983, pursuant to Sec. 2423.22(b) of the Regulations. On January 31, 1983, this Office issued an Order to Show Cause and Order Postponing Hearing. The Order stated, in part, that: " . . . From the Motion for Summary judgment it would not appear that Respondent, by its Answer, has raised any litigable issue and/or that Respondent has raised any material issue of fact. Accordingly, an Order to Show Cause will be issued and, pending Respondent's response, the hearing, scheduled for February 15, 1983, in Austin, Texas, will be cancelled and the case will be indefinitely postponed to be rescheduled for hearing only if Respondent shows some material issue of fact to be litigated. Under the circumstances, it is unnecessary to pass on the Motion of the Charging Party and it is hereby dismissed as moot . . . It was, "ORDERED, that Respondent show cause on or before February 22, 1983, why the Motion of the General Counsel for Summary Judgment should not be granted. All responses must be in writing and must be received in this Office before the close of business on February 22, 1983, or they will be rejected as untimely. It is "FURTHER ORDERED, that the hearing scheduled for February 15, 1983, in Austin, Texas, be and the same is hereby cancelled and further hearing is indefinitely postponed pending disposition of the Motion for Summary Judgment." (Order, dated January 31, 1983). In response to General Counsel's Motion for Summary Judgment, Respondent filed its own Motion for Summary Judgment, received by this Office on February 10, 1983, in which it prayed that General Counsel's Motion for Summary Judgment be denied and that its Motion for Summary Judgment be granted. Charging Party filed no response to General Counsel's Motion for Summary Judgement. Both from General Counsel's Motion for Summary Judgment and from Respondent's Motion for Summary Judgment it is clear that there are no genuine issues of material fact and that only legal issues are involved. Moreover, as each party has filed a Motion for Summary judgment, disposition of this matter by summary judgment in lieu of a hearing is agreed. /4/ Both the General Counsel and Respondent filed excellent briefs in support of their respective Motions for Summary Judgment. The undersigned was duly designated to handle this matter. Findings of Fact The Complaint alleged, and Respondent by its Answer admitted, inter alia, that the National Treasury Employees Union (NTEU) is the recognized exclusive representative for employees of the Internal Revenue Service (IRS); that IRS and NTEU are parties to a national agreement; and that Chapter 72 is the local representative of NTEU at the Austin Service Center of Respondent (Exhibits 7 and 9 to General Counsel's Motion for Summary Judgment). The material admitted facts, as stated by Respondent, and fully in accord with General Counsel's statement of facts, are as follows: "On or about July 6-9, 1982, August 3-6, 1982, and November 2-5, 1982, the respondent and the National Treasury Employees Union (NTEU) engaged in mid-term negotiations in Washington, D.C. concerning the appraisal system and incentive awards for bargaining unit employees. Employee-union negotiator Bill Knight traveled from Austin, Texas, to Washington, D.C. to participate in these negotiations. Pursuant to the parties' national contract respondent provided Mr. Knight official time for those hours actually spent in the negotiating sessions. However, Mr. Knight was not granted official time for travel to and from the negotiation sessions /5/ and was not paid travel and per diem allowances." /6/ (Respondent's Brief In Support of Its Motion for Summary Judgment, pp. 2-3). Conclusions Section 31(a) of the Act provides, "(a) Any employee representing an exclusive representative in the 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 same purposes." (5 U.S.C. 7131(a)). On December 19, 1979, the Authority issued its Interpretation and Guidance (Case Nos. O-PS-3 and O-PS-6), 2 FLRA 264(1979) on, inter alia, whether employees are entitled to payment from agencies for their travel and per diem expenses when representing an exclusive representative in negotiations. /7/ Although the Authority recognized that "Neither the Statute, nor its legislative history, expressly adverts to the payment of travel expenses or per diem during participation in these negotiation activities" (2 FLRA at 269) and that, "Under section 20 of E.O. 11491, as amended, travel expenditures were not authorized for union representatives engaged in negotiation activities (Labor-Management Relations in the Federal Service (1975) at 581" (2 FLRA at 269 n.6), nevertheless, the Authority concluded, in pertinent part, as follows: "2. Employees who are on official time under section 7131 of the Statute while representing an exclusive representative in the negotiation of a collective bargaining agreement are entitled to payments from agencies for their duty time and travel and per diem expenses." (2 FLRA at 272). The Authority has followed its Interpretation and Guidance, supra, in numerous cases since it was issued including, Bureau of Alcohol, Tobacco and Firearms, Western Region, Department of the Treasury, San Francisco, California, 4 FLRA No. 40(1980); Florida National Guard, 5 FLRA No. 49 (1981); U.S. Department of Agriculture, Science and Education Administration, Agricultural Research, North Central Region, Dakotas-Alaska Area, 6 FLRA No. 45(1981); United States Customs Service, 7 FLRA No. 68(1981); Division of Military and Naval Affairs, State of New York (Albany, New York), 7 FLRA No. 69(1981); Bureau of The Mint, Department of the Treasury, 7 FLRA No. 70(1981); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, North Atlantic Region (New York, New York), 8 FLRA No. 70(1982); and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms and Its Midwest Region, 9 FLRA No. 29(1982). The first case to be decided by a Court of Appeals was Bureau of Alcohol, Tobacco and Firearms, Western Region, Department of Treasury, San Francisco, supra, and the Ninth Circuit Court of Appeals enforced the Order of the Authority, 672 F.2d 732, 109 LRRM 3307 (9th Cir. 1982). The Court concluded, "The FLRA's Interpretation and Guidance is reasonable and supportable, and therefore will be given deference by this Court. The FLRA, acting in its own area of expertise, has interpreted the relevant language of Title VII in a clearly defensible manner, and we are neither permitted nor inclined to substitute a different judgment." (672 F.2d at 738, 109 LRRM at 3310). Thereafter, the Second Circuit Court of Appeals, by a divided panel, Judge Oakes dissenting, in Division of Military and Naval Affairs, State of New York and Department of Defense, supra, 683 F.2d 45, 110 LRRM 2990, (2d Cir. 1982), reached an opposite conclusion and denied enforcement of the Order of the Authority. The Court majority stated, in part, as follows: " . . . Under all the circumstances we cannot believe that Congress meant the government to assume such an unusual burden, so different from any accepted practice in dealings between employers and employees, absent a clear and specific provision to that effect." (683 F.2d at 49, 110 LRRM at 2992). Subsequently, the Eighth Circuit Court of Appeals, also by a divided panel, Judge Heaney dissenting, in United States Department of Agriculture v. Federal Labor Relations Authority and American Federation of Government Employees, AFL-CIO, Intervenor/Respondent, 691 F.2d 1242, 111 LRRM 2007 (8th Cir. 1982), like the Second Circuit, denied enforcement of the Authority's Order. The Court majority stated, in part, as follows: " . . . The FLRA reasons that by adopting completely new language, allowing official time for hours spent in negotiations if the employee would otherwise be in a duty status, Congress intended to reject the Executive Order's limitations of official time, including its prohibitions on travel expenses and per diem. "We find this argument unpersuasive. In the absence of any comment in the legislative history, we cannot know why Congress rejected the Senate version. In addition, any change reflects, at most, a desire to alter the official time provision, (footnote omitted) indicating nothing about the congressional view of travel expenses and per diem. If anything, congressional silence would point towards its acceptance of prior practice, which did not allow travel expenses and per diem. /8/ More recently, the Eleventh Circuit Court of Appeals, in Florida National Guard and Department of Defense v. Federal Labor Relations Authority, 699 F.2d 1092 (11th Cir. 1983), has joined the Second and eighth Circuits and denied enforcement of the Authority's order to pay travel expenses and per diem for a union-employee negotiator. The Authority remains unpersuaded by the decisions of the Second, Eighth and Eleventh Circuits and, embracing the decision of the Ninth Circuit, has adhered to its view that agencies must pay travel and per diem expenses of employees while representing an exclusive representative in negotiations. See, for example, United States Environmental Protection Agency, Washington, D.C. and United States Environmental Protection Agency, Region IV, Atlanta, Georgia, 10 FLRA No. 30(1982); United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin District, 10 FLRA No. 38(1982); Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, 10 FLRA No. 52(1982); and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA No. 53(1982). On January 17, 1983, the Supreme Court granted certiorari in Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relation Authority, et al., No. 82-799, -- U.S. -- , 103 S.Ct. 784(1983). (Petitions for certiorari by the Authority are pending in Federal Labor Relations Authority v. Department of Agriculture, No. 82-979 (12/13/82), and in Federal Labor Relations Authority v. Division of Military and Naval Affairs, No. 82-1021 (12/16/82). Obviously, the Supreme Court will, as it must in view of the split of the Circuits, ultimately resolve this issue. /9/ Respondent's arguments here, that the Authority's Interpretation and Guidance, 2 FLRA 264, is without support in the Act or its legislative history; and that Respondent is without authority to expend its appropriated funds for the payment of employee-union negotiators' travel and per diem expenses, have previously been considered by the Authority and rejected in its decisions set forth above. Thus, in Bureau of the Mint, Department of the Treasury, supra, the Authority stated, in part, as follows: " . . . Respondent argues that such precedent should be reversed because the Authority's decision in Interpretation and Guidance, supra, is without a basis in the Statute. The Respondent also argues that it does not have legal authority to expend appropriated funds for the payment of travel and per diem expenses to employees serving as Union negotiators . . . . . . . "The Authority has considered the Respondent's arguments, essentially based on the Respondent's reading of the legislative history, that established precedent . . . be reversed. However, no basis has been advanced to demonstrate that the established precedent is incorrect, nor has the Respondent raised arguments not previously considered. Thus, the Authority concluded in its decision in Interpretation and Guidance and subsequent cases based upon an analysis of the Statute and the legislative history of section 7131 that any employee who is on official time under section 7131 while representing an exclusive representative in the negotiation of a collective bargaining agreement is entitled to payment from agencies for travel and per diem expenses. Therefore, . . . Respondent violated section 7116(a)(1) and (8) when it declined to pay travel and per diem expenses. . . . " (7 FLRA at 465). And, in United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin District, supra, the Authority stated, in part, as follows: "The facts and positions of the parties are substantially identical to those in Bureau of Alcohol, Tobacco and Firearms, Western Region, Department of the Treasury, San Francisco, California, 4 FLRA No. 40(1980), enforced sub nom. Bureau of Alcohol, Tobacco and Firearms v. Federal Labor Relations Authority, 672 F.2d 732 (9th Cir. 1982). (footnote 1, which cites the contrary decisions of the Second Circuit and Eighth Circuit, Supra, Omitted) Thus, for the reasons set forth therein, the Authority finds that the Respondent has failed and refused to comply with section 7131(a) of the Statute and therefore has violated section 7116(a)(1) and (8) of the Statute." (footnote omitted) Of course, as an Administrative Law Judge, I am bound by the Authority's pronouncements and decisions until such time as they are overruled by higher authority. As to the Authority's decisions on the obligation of agencies to pay travel and per diem expenses, although there is a split by the Circuits, the Authority adheres to its position as initially stated in its Interpretation and Guidance, supra, which is fully supported by the decision of the Ninth Circuit Court of Appeals, and unless and until that decision is reversed by the Supreme Court I am constrained to follow the Authority's decisions. Accordingly, by its failure to pay employee-Union negotiator Bill Knight for his travel and per diem expenses, Respondent failed and refused to comply with Sec. 31(a) of the Statute and, therefore, has violated Secs. 16(a)(1) and (8) of the Statute. Having found that Respondent violated Sec. 16(a)(1) and (8) of the Statute, I recommend that the Authority adopt the following: ORDER Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that the United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin Service Center /10/ shall: 1. Cease and desist from: (a) Failing and refusing to reimburse employee Bill Knight for travel and per diem expenses incurred, pursuant to Sec. 31(a) of the Statute, 5 U.S.C. 7131(a), as the designated representative of the National Treasury Employees Union, Chapter 72, the exclusive representative of its employees, in mid-term negotiations conducted in July, August and November, 1982. (b) In any like or related manner interfering with, restraining, or coercing its 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) Reimburse employee Bill Knight, based upon the previously submitted vouchers, for travel and per diem expenses incurred, pursuant to Sec. 31(a) of the Statute, 5 U.S.C. 7131(a), as the designated representative of the National Treasury Employees Union, Chapter 72, the exclusive representative of its employees, in mid-term negotiations conducted in July, August and November, 1982. (b) Post at its facilities in the Austin Service Center copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Director of the Austin Service Center 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. The Director shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R. 2423.30, notify the Regional Director of the Federal Labor Relations Authority for Region 6, whose address is: P.O. Box 2640, Dallas, Texas 75221, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply therewith. WILLIAM B. DEVANEY Administrative Law Judge Dated: April 19, 1983 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to reimburse employee Bill Knight for travel and per diem expenses incurred, pursuant to Sec. 31(a) of the Statute, 5 U.S.C. 7131(a), as the designated representative of the National Treasury Employees Union, Chapter 72, our employees' exclusive representative, in mid-term negotiations conducted in July, August and November, 1982. 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 reimburse employee Bill Knight, based upon the previously submitted vouchers, for travel and per diem expenses incurred, pursuant to Sec. 31(a) of the Statute, 5 U.S.C. 7131(a), as the designated representative of the National Treasury Employees Union, our employees' exclusive representative, in mid-term negotiations conducted in July, August and November, 1982. (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 of the Federal Labor Relations Authority, Region 6, whose address is: P.O. Box 2640, Dallas, Texas 75221, and whose telephone number is: (214) 767-4996. --------------- FOOTNOTES$ --------------- /1/ In finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, the Judge effectively granted the General Counsel's Motion for Summary Judgment and denied the Respondent's Motion for Summary Judgment, the latter of which sought dismissal of the complaint. /2/ The Authority received a motion filed by the Counsel for the General Counsel seeking to have the case remanded to the Regional Director for withdrawal of the complaint and dismissal of the charge. In view of the Authority's disposition on the merits of this case, the Counsel for the General Counsel's motion is hereby denied. /3/ For convenience of reference, sections of the Statute hereinafter are, also referred to without inclusion of the initial "71" of the Statute reference, e.g., Section 7131 will be referred to simply as "Sec. 31". /4/ Because each party prays for summary judgment, it is unnecessary to review the authority for the use of summary judgment which has been well stated by Judge Nash, in Oklahoma Army National Guard, Oklahoma City, Oklahoma and National Federation of Federal Employees, Local 1694, Case No. 6-CA-20160 (December 2, 1982) (OALJ-83-29), and by Judge Cappello, in American Federation of Government Employees, AFL-CIO, Local 1617, and United States Department of Defense, Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, Case Nos. 6-CO-20005 and 6-CO-20006 (February 8, 1983) (OALJ-83-50). /5/ The Complaint contains no allegation concerning the allowance of official time for travel or otherwise; nor did either the Charge or First Amended Charge. Accordingly, no issue of official time is before me. /6/ Mr. Knight's Travel Vouchers, as submitted to Respondent are attached to General Counsel's Motion for Summary Judgment as Exhibits 10 (July 5-11, 1982); 12 (August 3-6, 1982), 14 (November 2-5, 1982), and total $1,784.95. /7/ The Authority also held therein that Sec. 31(a) "encompass all negotiations . . . regardless of whether such negotiations pertain to the negotiation or renegotiation (mid-term) of a basic collective bargaining agreement." (2 FLRA at 268, 272). /8/ The FLRA has also argued that there was no need for Congress to address specifically travel expenses and per diem, because 'official time' means 'duty' status and because travel expenses are automatically permitted when an employee must travel in connection with that duty status. The plain language of Sec. 7131, however, belies this contention because it authorizes official time only when the employee 'otherwise would be in a duty status'. If official time meant duty status, the quoted phrase would become superfluous. We cannot accept such an interpretation." (691 F.2d at 1248-1249, 111 LRRM at 2012-2013) /9/ In view of the division of the Circuits (various appeals are also pending in different Circuits, including the D.C. Circuit and the Sixth Circuit), the grant of certiorari, and the fact that the position of all parties will be wholly unaffected by a further decision in this case, it would better have served the ends of justice had the parties each stipulated that they would forthwith comply with the decision of the Supreme Court and they had requested that further proceeding be held in abeyance pending decision by the Supreme Court; but neither party has seen fit to do so. To the contrary, by their respective Motions for Summary Judgment, each party seeks a decision in this case and, under the circumstances, I can perceive no justification for not complying with their desire. /10/ Respondent neither contends nor is there any ground shown in the Motions for Summary Judgment which either would permit or require that only the Agency or the Activity is responsible for the violation. cf., United States Environmental Protection Agency, supra, 10 FLRA at 152; See, United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Austin District, supra, 10 FLRA at 195.