[ v22 p287 ]
22:0287(28)CA
The decision of the Authority follows:
22 FLRA No. 28
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
COLUMBIA DISTRICT
COLUMBIA, SOUTH CAROLINA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 4-CA-577
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case arose as a result of the Respondent's
refusal to grant certain employees travel expenses and per diem
allowances in connection with their representing the Union in
negotiations for a local supplemental agreement, during time they
otherwise would have been in a duty status. This refusal is alleged to
have violated section 7116(a)(1) and (8) of the Statute. /1/ The
Respondent also sought to reclaim money it had paid to other employees
during an earlier round of the negotiations, and this is alleged to be
an independent violation of section 7116(a)(1) of the Statute. The
issue is whether the employees were entitled to such travel and per diem
expenses.
The Administrative Law Judge found that the Activity had committed
the violations as alleged. The case is before the Authority now because
the Respondent filed exceptions to the Judge's Decision.
II. Facts
The Internal Revenue Service and the National Treasury Employees
Union are parties to a Multi-District Agreement which covers the
Columbia, South Carolina District. The undisputed evidence establishes
that negotiations between the parties over a local supplemental
agreement, as provided for by the Multi-District Agreement, took place
during June and July of 1980. Ground rules for the negotiations
included an agreement that official time would be granted "in accordance
with (section 7131(a)" of the Statute. Following the negotiations,
various members of the Union negotiating team submitted travel vouchers
claiming travel and per diem expenses covering the period of the
negotiations. The Respondent paid travel and per diem expenses to three
of the Union negotiators for the June negotiating sessions and later
refused to pay other members of the team for sessions held in July. The
Union paid the travel and per diem expenses for two members of its
negotiating team for the July sessions that Respondent refused to pay.
After paying travel and per diem expenses to the Union negotiators, the
Respondent notified them that they had been paid erroneously and that
they should return the money. The employees declined. The refusal to
reimburse certain employees for travel and per diem expenses, and the
attempt to recover money which the Respondent asserts it paid in error
to other employees, led to the complaint.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with section
7131(a) of the Statute, /2/ in violation of section 7116(a)(1) and (8)
of the Statute, by refusing to reimburse travel expenses and per diem
allowances to employees representing the Union in negotiations for the
local supplemental agreement during the time they otherwise would have
been in a duty status. He also found that the Respondent's attempt to
reclaim travel and per diem expenses paid to certain employees entitled
to them constituted a violation of section 7116(a)(1) of the Statute.
IV. Exceptions to the Judge's Decision
The Respondent excepted to the Judge's reliance on decisions of the
Authority which it contends are without support in the Civil Service
Reform Act or its legislative history. The Respondent also contends
that it is without legal authority to expend appropriated funds for
travel and per diem expenses and also noted that two members of the
Union negotiating team paid by the Union for the July negotiating
sessions would receive double reimbursement if paid by the Respondent.
On that basis, Respondent argues that since no expenses were incurred by
these two members no travel and per diem expenses were due. Finally,
the Respondent takes the position that official time does not include
travel and per diem expenses and can only be negotiated for during
mid-term bargaining under section 7131(d) of the Statute.
V. Analysis
The questions to be answered here are (A) Does the official time
requirement of section 7131 include travel expenses and per diem
allowances alleged to have been improperly denied in this case; and (B)
if not, what is the effect of the parties' agreement to grant official
time "in accordance with (section) 7131(a)" which, at the time of that
agreement and at the time of the denial of travel and per diem expenses,
included travel and per diem according to existing case law?
After the Judge issued his Decision in this case, the United States
Court of Appeals for the District of Columbia Circiut ruled that the
official time provisions of section 7131(a) of the Statute encompass the
negotiation of local agreements supplementing master agreements where
such local negotiations are authorized by the parties at the level of
exclusive recognition. American Federation of Government Employees,
AFL-CIO v. FLRA, 750 F.2d 143 (D.C. Cir., 1984). /3/ The Authority has
found itself constrained to follow the court's legal interpretation of
the language of section 7131(a) of the Statute, for the reasons set
forth in the court's opinion, Department of the Air Force, Headquarters,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19
FLRA No. 17 (1985), and continues to follow that interpretation in cases
such as this one. Thus, the employees negotiating on behalf of the
Union were entitled to official time for the negotiations which occurred
while they otherwise would be in a duty status.
(A) Prior to the United States Supreme Court's decision in Bureau of
Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), the
Authority had interpreted "official time" under section 7131(a) of the
Statute as encompassing travel expenses and per diem allowances. See,
for example, Interpretation and Guidance, 2 FLRA 264 (1979). However,
in BATF, the Supreme Court concluded that the section 7131(a) obligation
to provide official time does not encompass travel expenses and per diem
allowances. Therefore, as they are not included within official time
under section 7131, there is no entitlement to travel and per diem
merely by virtue of a finding that official time is required because of
negotiations for certain kinds of agreements. Thus, since there is no
requirement to grant travel and per diem under section 7131(a), the
refusal to do so cannot be a failure to comply with that section of the
Statute. Therefore, the section 7116(a)(8) allegation of the complaint
must be dismissed. However, in BATF the Court stated, "unions may
presumably negotiate for such payments (of travel expenses and per diem
allowances) in collective bargaining as they do in the private sector."
464 U.S. at 107, n. 17. The Authority has since determined that a
union's proposal requiring the Agency to pay travel expenses incurred by
employees using official time was not inconsistent with law or
Government-wide regulation and therefore was within the duty to bargain.
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub
nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
76-1198 (D.C. Cir. Mar. 27, 1986). Thus, the remaining question is the
effect of the parties' agreement to pay official time "in accordance
with (section) 7131(a)."
B. The parties agreed that employees representing the exclusive
representative in negotiations for a local supplemental agreement would
be granted official time "in accordance with (section) 7131(a)" of the
Statute. At the time that the parties entered into this agreement,
official time under section 7131 had been interpreted by the Authority
and was understood by the parties to encompass related travel and per
diem expenses. Moreover, the Respondent initially acted on that
understanding when it paid some travel expenses in accordance with the
parties' agreement. Therefore, the Authority finds that, in effect, the
agreement encompassed payment of travel and per diem expenses.
There is no allegation in the complaint that the Respondent's refusal
to pay travel and per diem to some employees, and its attempt to reclaim
payments to others it determined had been "erroneously" paid, was a
refusal to honor the negotiated agreement in violation of section
7116(a)(5) of the Statute. If there had been such an allegation, the
Authority, noting particularly Respondent's statements that no payment
for travel and per diem would be forthcoming, could have found that the
Respondent's actions were contrary to the clearly understood meaning of
the parties' agreement, and constituted a repudiation of the agreement
amounting to a section 7116(a)(5) violation. See Great Lakes Program
Service Center, Social Security Administration, Department of Health and
Human Services, Chicago, Illinois, 9 FLRA 499 (1982), American
Federation of Government Employees, Local 1923, AFL-CIO, 20 FLRA No. 88
(1985). Nevertheless, the Authority does find that the Respondent's
actions amount to a violation of section 7116(a)(1) of the Statute, as
alleged, because the Respondent's failure and refusal to meet its
obligation under an agreement with the exclusive representative of its
employees to grant official time to employees representing the Union in
supplemental negotiations "in accordance with" section 7131(a) of the
Statute as it was understood by the parties at that time, which, as
noted above, we find to include agreement to pay travel and per diem
expenses, interfered with the employees' protected rights under section
7102 of the Statute "to form, join, and assist a labor organization" and
to receive the benefit of those provisions of an agreement negotiated on
their behalf by the exclusive representative. Adjutant General, State
of Ohio, Ohio Air National Guard, Worthington, Ohio, 21 FLRA No. 124
(1986); Department of Defense, Dependents Schools System, 21 FLRA No.
125 (1986); Office of the General Counsel, National Labor Relations
Board, 22 FLRA No. 25 (1986).
VI. Remedy
The Respondent paid travel and per diem expenses of Union
representatives for the June 1980 negotiating sessions. Thereafter, the
Charging Party made such payments to unit employees who served as its
negotiators when the Respondent refused to do so. In our view, it will
effectuate the purposes and policies of the Statute to issue an order
requiring the Respondent to make whole the Charging Party for those
travel and per diem expenses which it incurred by reimbursing the
affected employees who should have received such payments directly from
the Respondent. Further, in the event that there are bargaining unit
employees who either did not receive the payments to which they were
entitled or were not compensated fully for such expenses, we shall order
the Respondent to reimburse them for the travel and per diem expenses
they incurred upon their submission of properly documented claims for
such payments. See Office of the General Counsel, National Labor
Relations Board, 22 FLRA No. 25 (1986).
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regualtions
and section 7118 of the Statute, the Authority has reviewed the rulings
made by the Judge at the hearing, finds that no prejudicial error was
committed, and thus affirms the rulings. The Authority has considered
the Judge's Decision and the entire record, including the parties'
contentions, and adopts the Judge's findings, conclusions and
recommended Order only to the extent consistent with this decision.
In view of the above, the Authority concludes that the Respondent's
refusal to pay travel expenses and per diem allowances to certain
employees, and its attempt to reclaim such payments it had made to other
employees, was not a failure or refusal to comply with the provisions of
section 7131(a) of the Statute in violation of section 7116(a)(8). That
allegation shall be dismissed. Such actions by the Respondent are found
to have violated section 7116(a)(1) of the Statute, however, and an
appropriate remedy shall be ordered.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Department of the Treasury, Internal Revenue Service,
Columbia District, Columbia, South Carolina, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the
exercise of their rights guaranteed in the Statute, by refusing to
comply with and repudiating an agreement with the National Treasury
Employees Union, the exclusive representative of its employees, to pay
travel expenses and per diem allowances to Lavon Hair and Willmeta
Dobbs, or attempting to reclaim such payments to Hair, Benjamin Smith,
and John Thompson, or any other bargaining unit employees entitled to
such payments when engaged in negotiations for a local supplemental
agreement as contemplated by the parties' Multi-District Agreement
during June and July, 1980.
(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) Make the National Treasury Employees Union whole for the costs it
incurred by paying the travel and per diem expenses of bargaining unit
employees who acted as its negotiators in July 1980, for which the
employees otherwise would have been entitled to reimbursement directly
by the Respondent.
(b) Pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments for negotiations which occurred in July 1980, to the
extent that such expenses have not been reimbursed by the National
Treasury Employees Union. /4/
(c) Post at its various offices in the Columbia District in which
unit employees are located, copies of the attached Notice to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the District Director, or a
designee, 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 said Notices are not
altered, defaced, or covered by any other material.
(d) 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 with this Order.
IT IS FURTHER ORDERED that the portion of the complaint alleging a
violation of section 7116(a)(8) of the Statute be, and it hereby is,
dismissed.
Issued, Washington, D.C. June 27, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, 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 interfere with, restrain, or coerce our employees in the
exercise of their rights guaranteed in the Statute, by refusing to
comply with and repudiating an agreement with the National Treasury
Employees Union, the exclusive representative of our employees, to pay
travel expenses and per diem allowances to Lavon Hair and Willmeta
Dobbs, or attempting to reclaim such payments to Lavon Hair and Benjamin
Smith, and John Thompson, or any other bargaining unit employees
entitled to such payments when engaged in negotiations for a local
supplemental agreement as contemplated by the parties' Multi-District
Agreement during June and July, 1980.
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 make the National Treasury Employees Union whole for the
costs it incurred by paying the travel and per diem expenses of
bargaining unit employees who acted as its negotiators in July 1980, for
which the employees otherwise would have been entitled to reimbursement
directly by us.
WE WILL pay travel and per diem expenses, consistent with law and
regulation, including the Federal Travel Regulations, to all bargaining
unit employees who submit or previously submitted appropriate claims for
such payments for negotiations which occurred in July 1980, to the
extent that such expenses have not been reimbursed by the National
Treasury Employees Union.
(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 any employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director, Region IV, Federal Labor Relations
Authority, whose address is: 1371 Peachtree Steet NE, Suite 736,
Atlanta, Georgia 30367, and whose telephone number is: (404) 347-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 4-CA-577
DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE
COLUMBIA DISTRICT COLUMBIA, SOUTH CAROLINA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Harry Mason, Esq. For Respondent
William Harness, Esq. For Charging Party
Mathilde L. Genovese, Esq. For General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et. seq., (hereinafter
referred to as the Statute), and the Rules and Regulations of the
Federal Labor Relations Authority, 5 C.F.R. Chapter XIV, Section 2410 et
seq.
Pursuant to a charge filed September 30, 1980 by the National
Treasury Employees Union (hereinafter called the Union and NTEU) against
Department of the Treasury, Internal Revenue Service, Columbia District,
Columbia, South Carolina (hereinafter called IRS and Respondent) the
General Counsel of the Federal Labor Relations Authority by the Regional
Director for Region 4 issued a Complaint and Notice of Hearing on
October 21, 1980 which was thereafter amended on October 27, 1980. The
Amended Complaint alleges that Respondent violated Section 7116(a)(1)
and (8) of the Statute when it refused to reimburse employees who were
representing the Union in negotiations for a Local Supplemental
Agreement, for travel and per diem expenses incurred during the course
of the negotiations which were held during the time the employees
otherwise would be in a duty status. The Amended Complaint further
alleges that Respondent violated Section 7116(a)(1) of the Statute by
seeking to reclaim employees' travel and/or per diem expenses incurred
during negotiations for the local supplemental agreement. Respondent
filed an answer denying that it violated the Statute.
A hearing in this matter was conducted before the undersigned in
Columbia, South Carolina. All parties were represented by counsel and
afforded full opportunity to be heard, adduce evidence, examine and
cross-examine witnesses, and argue orally. The parties were given an
opportunity to file briefs, which have been fully considered.
Based on the entire record herein, my observation of the witnesses
and their demeanor, and from my evaluation of the evidence, I make the
following:
Findings of Fact
The Internal Revenue Service and the National Treasury Employees
Union are parties to a collective bargaining agreement covering the
period from January 31, 1977 through January 31, 1981. The collective
bargaining agreement is a Multi-District Agreement which includes
Respondent's Columbia, South Carolina District.
The uncontroverted evidence establishes that on June 25, 26, 27, 30
and July 1, 2 and 3, 1980, the Union and Respondent met in Columbia,
South Carolina for the purpose of negotiating a Local Supplemental
Agreement to the Multi-District Agreement (herein MDA). /5/
Representing IRS at negotiation meetings were Stephen Giroux, Chief of
Personnel, Leo Chaussie, Chief of Taxpayer Service, Hugh Wagner, Group
Manager and Joe Orzichowski, Chief Negotiator. All the management
negotiators, except for Group Manager Wagner, worked in the Columbia,
South Carolina office of Respondent. Wagner worked in the Greenville,
South Carolina office and travelled to Columbia, South Carolina for the
negotiations. Wagner received reimbursement from Respondent for his
travel and per diem expenses incurred while engaged in these
negotiations. The Union negotiating team was composed, at various
times, of Wayne Golden, Lavon Hair, John Thompson, Ben Smith, Donzetta
Lindsay, Loreta Pinion and Willmeta Dobbs. Hair worked in Respondent's
Aiken, South Carolina office, Thompson worked in Respondent's Anderson,
South Carolina office, Smith worked in Respondent's Charleston, South
Carolina office and Dobbs worked in Respondent's Greenville, South
Carolina office. Hair, Thompson, Smith and Dobbs travelled from their
respective home cities to Columbia, South Carolina to negotiate the
Local Supplemental Agreement. At each meeting NTEU and IRS had an equal
number of negotiators.
Negotiations for the Local Supplemental Agreement commenced at
approximately 10:00 a.m. on June 25, 1980. A ground rules agreement was
reached by the parties at this initial negotiation session and all five
articles were discussed. Negotiations continued through July 3, 1980,
when a Local Supplemental Agreement was executed. /6/
Lavon Hair, NTEU Chapter 55 President and Chief Negotiator for the
Union attended all the Local Supplemental Agreement negotiating
sessions. Hair travelled by privately owned vehicle from Aiken, South
Carolina to Columbia, South Carolina on June 25, 1980. Hair left Aiken,
South Carolina at approximately 8:00 a.m. and arrived in Columbia, South
Carolina at approximately 9:35 a.m., travelling some 59 miles. Hair
remained in Columbia, South Carolina and engaged in negotiations on June
25, 26, 27, 1980. On June 27, 1980, Hair departed Columbia, South
Carolina at approximately 3:40 p.m. and arrived in Aiken, South Carolina
at approximately 5:15 p.m. Thus, from June 25, 1980 through June 27,
1980, Hair incurred both travel and per diem expenses in connection with
the above-memtioned negotiations. Hair again travelled to Columbia,
South Carolina by privately owned vehicle on June 30, 1980. He left
Aiken, South Carolina at approximately 8:00 a.m. and arrived in
Columbia, South Carolina at 9:35 a.m. Hair engaged in the negotiations
through the execution of the Local Supplemental Agreement on July 3,
1980. At the conclusion of the negotiations, Hair left Columbia, South
Carolina at approximately 3:40 p.m. and arrived in Aiken, South Carolina
at approximately 5:40 p.m. Hair again incurred travel and per diem
expenses for the period of June 30, 1980 to July 3, 1980 while he was
engaged in negotiations in Columbia, South Carolina or travelling to
engage in such negotiations.
Hair recorded the expenses he incurred while engaged in negotiations
on his June 1980 and July 1980 travel vouchers. On or about July 15th
or 16th, 1980, Hair received a travel check for his June travel expenses
including the expenses incurred as a result of participating in the
negotiations in Columbia, South Carolina. Hair did not receive
reimbursement for the negotiating expenses incurred on July 1-3, 1980.
On or about August 6, 1980, Hair received a memo from his Group Manager,
D. F. Ramage advising that a disallowance of $104.55 was made from
Hair's July, 1980 travel voucher due to the fact that Hair claimed
mileage and per diem for District negotiations to which he was not
entitled. Hair later received a Travel Voucher Action Notice, covering
the period of July 1 through July 31, 1980, advising that his July
travel voucher was approved in the amount of $146.80 and that $104.55
was disallowed, per a memo submitted by Hair's Group Manager. Hair also
received a letter from Stephen D. Giroux, Chief, Personnel Branch, which
stated, in part, the following:
"We regret that your June travel voucher was submitted and
approved claiming travel and per diem for the June negotiations.
Efforts are being made to correct your June travel voucher and
reclaim the expense erroneously paid. No future vouchers,
including the July voucher, will be approved with these expenses
claimed. Your July voucher is being processed without the travel
and per diem related to the negotiations in an effort to expedite
the payment of the allowable items."
Hair received a second Travel Voucher Action Notice covering the
period of June 1 through June 30, 1980 advising his that $149.15 should
be forwarded to Respondent as that amount was overpaid to him and that
amount was not allowable inasmuch as the expenses claimed were for the
Union negotiations. Hair did not reimburse Respondent for the June
negotiation expenses.
Benjamin Smith, NTEU Chapter 55 Treasurer attended the Local
Supplemental Agreement negotiation sessions of June 25, 26 and 27, 1980.
Smith travelled from Mount Pleasant, South Carolina to Columbia, South
Carolina on June 24, 1980. Smith departed Mt. Pleasant, South Carolina
at approximately 5:00 p.m. and arrived in Columbia, South Carolina at
approximately 7:30 p.m. ITR 35) Smith participated in the negotiation
sessions which began at approximately 10:00 a.m. on June 25, 1981.
Smith remained in Columbia, South Carolina and engaged in negotiations
held on June 26 and 27, 1980. At the conclusion of the negotiation
session on June 27, 1980, at approximately 3:00 p.m., Smith left
Columbia, South Carolina for his residence. Smith arrived home shortly
after 6:00 p.m. While engaged in the negotiation sessions, Smith
incurred traved and per diem expenses. Smith recorded these expenses on
his June 1980 travel voucher. /7/ Smith submitted his June, 1980 travel
voucher and received reimbursement sometime in the middle of July, 1980.
During mid-August, 1980, Smith's Group Manager, John Stribling, told
Smith that his June travel expenses had been paid in error. Stribling
gave Smith a letter from Giroux, Chief of Personnel, which informed him
that "efforts are being made to correct your June travel voucher and
reclaim the expenses claimed." In early September, 1980 Smith received a
Travel Voucher Action Notice for the period of June 1, 1980 through June
30, 1980, advising that a post audit of his voucher had resulted in an
overpayment of $135.90 which consisted of expenses incurred during the
Local Supplemental Agreement negotiations. Respondent requested Smith
to reimburse the amount overpaid. Smith has not repaid the amount
requested.
John Thompson, NTEU National Vice President for the first district,
participated in the negotiation session on June 30, 1980. Thompson
departed Taylor, South Carolina on June 30, 1980 at 7:00 and arrived in
Columbia, South Carolina sometime after 9:00 a.m. Thompson participated
in the June 30, 1980 negotiation session until the close of the
negotiations at about 4:45 p.m. Thompson departed Columbia, South
Carolina sometime after 5:00 p.m. and the average driving time from
Columbia, South Carolina to Thompson's home was 2 hours. As a result of
engaging in negotiations, Thompson incurred travel expenses, which he
reported on his June, 1980 travel voucher. Thompson received payment
for his June travel expenses sometime around the 15th of July, 1980. In
approximately mid-August, 1980, Thompson received a letter from Giroux,
Chief, Personnel Branch, advising that the June negotiation expenses
were erroneously paid and efforts were being made to reclaim the
expenses. In the beginning of September, 1980, Thompson received a
Travel Voucher Action Notice covering the period June 1, 1980 through
June 30, 1980 advising that $39.40 was claimed for Union negotiations
which was not allowable. The Travel Voucher Action Notice requested
that Thompson forward the stated amount to Respondent. The Travel
Voucher Action Notice was attached to a memo signed by Donald L.
Breihan, District Director, Columbia District stating that normal
procedures should be followed in reclaiming travel and per diem expenses
from John Thompson. Thompson has not paid the amount requested.
Willmeta Dobbs, Executive Vice President of NTEU Chapter 55, attended
the negotiation sessions of July 1 -- July 3, 1980. Dobbs departed
Taylor, South Carolina at approximately 7:15 a.m. and arrived in
Columbia, South Carolina at approximately 9:45 a.m. Dobbs remained in
Columbia, South Carolina, engaged in negotiations, until July 3, 1980
when she departed Columbia, South Carolina at approximately 2:00 p.m.
and arrived home at approximately 4:30 p.m. While engaged in
negotiations in Columbia, South Carolina, Dobbs incurred travel and per
diem expenses which she recorded on her July, 1980 travel voucher.
Dobb's July travel voucher was not processed because Dobb's Group
Manager, Al Howard, informed her that the negotiation expenses were not
covered. Howard asked Dobbs to submit another travel voucher, deleting
the negotiation expenses. This second travel voucher was prepared,
submitted and paid by Respondent.
All the Union negotiators participated in the negotiations and
provided input on the articles under discussion.
At all times material herein, the regular working hours of
Respondent's employees, including the above-mentioned employees engaged
in negotiations, were 8:00 a.m. to 4:45 p.m. Both Dobbs and Hair were
reimbursed by NTEU for the expenses they incurred in connection with the
July negotiating sessions.
Discussion and Conclusions
Section 7131(a) of the Statute 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 proceeding, 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 . . . "
The Federal Labor Relations Authority (FLRA) has held that Section
7131(a) requires agencies to reimburse union negotiators for their
travel and per diem expenses incurred due to their participation in
negotiations. Interpretation and Guidance, 2 FLRA No. 31 (1979). FLRA
held further that Section 7131(a) provides that such a union negotiator
is entitled to travel and per diem expenses when engaged in mid-term
negotiations and that failure to pay it violates Section 7116(a)(1) and
(8) of the Statute. Bureau of Alcohol, Tobacco and Firearms, Western
Region, Department of the Treasury, San Francisco, California, 4 FLRA
No. 40 (1980). IRS's contention that FLRA was without authority to
issue its decision in Interpretations and Guidance, supra is rejected as
is the argument that IRS can not be required to expend appropriated
funds for the payment of travel and per diem expenses of Union
negotiators. Bureau of Alcohol Tobacco and Firearms, Western Region,
Department of the Treasury, San Francisco, California, supra.
Further IRS's contention that because the Union negotiators were
reimbursed for their travel and per diem expenses IRS is not obliged to
comply with Section 7131 of the Statute is rejected. Such an
interpretation of the Statute would permit IRS to benefit because it
violated the Statute and NTEU attempted to mitigate the harm to the
employees.
Accordingly it is concluded that IRS violated Section
7116(a)(1) and (8) of the Statute by its failure to reimburse employees
Hair and Dobbs for their travel and per diem expenses incurred while
they were engaged as members of NTEU's bargaining team in Columbia,
South Carolina.
Further it is concluded that IRS' attempts, though unsuccessful, to
reclaim the travel and per diem expenses that were paid to Union
negotiator-employees Hair, Smith and Thompson for time spent
representing NTEU at negotiations, interferres with, restrains and
coerces these employees in their rights as set forth in Section 7102 of
the Statute and therefore violates Section 7116(a)(1) of the Statute.
Having found and concluded that IRS violated Sections 7116(a)(1) and
(8) of the Statute, I recommend that the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's rules and regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of Treasury, Internal
Revenue Service, Columbia District, Columbia, South Carolina shall:
1. Cease and desist from:
(a) Failing and refusing to provide and pay necessary travel and per
diem expenses to Lavon Hair, Willmeta Dobbs, or any Agency employee, for
the time said employees engaged in representing the National Treasury
Employees Union, the employees' exclusive representative, during
Union-Agency negotiations of a collective bargaining agreement.
(b) Attempting to reclaim or recover travel and per diem expenses
paid to Lavon Hair, Benjamin Smith, John Thompson or any Agency
employee, for the time said employees engaged in representing the
National Treasury Employees Union, the employees' exclusive
representative, during Union-Agency negotiations of a collective
bargaining agreement.
(c) 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 policies of the Statute:
(a) Provide Union representatives Lavon Hair and Willmeta Dobbs
ordinary travel and per diem expenses for July 1 through July 3, 1980.
(b) Post at its various offices in the Columbia District 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 4, 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 notice to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered,
defaced, or covered by an 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.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: June 10, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7116(a)(1) and (8) provides:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . . . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter(.)
(2) Section 7131(a) of the Statute provides:
Section 7131. Official time
(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 proceeding, 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.
(3) This decision reversed the Authority's position as set forth in
Interpretation and Guidance, 7 FLRA 682 (1982).
(4) In finding travel expenses and per diem allowances negotiable,
the Authority indicated that the travel itself would have to meet the
requirements of law and regulation, including Federal Travel
Regulations. National Treasury Employees Union and Department of the
Treasury, 21 FLRA No. 2 (1986), petition for review filed sub nom.
Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198
(D.C. Cir. March 27, 1986). There is no contention, nor does the record
disclose evidence, that the travel and per diem expense claims would be
inconsistent with Federal law or regulation.
(5) The Local Supplemental Agreement concerned five articles of the
MDA: equal employment opportunity, the labor management relations
committee, bulletin boards, details into taxpayer service and rotational
assignments into specialty groups.
(6) The Negotiations were held on the following dateds for the
specified periods:
6/25/80 10:00 a.m. -- 4:45 p.m.
6/26/80 8:00 a.m. -- 4:45 p.m.
6/27/80 8:00 a.m. -- 3:30 p.m.
6/30/80 10:00 a.m. -- 4:45 p.m.
7/01/80 10:00 a.m. -- 4:45 p.m.
7/02/80 8:00 a.m. -- 4:45 p.m.
7/03/80 8:00 a.m. -- 2:15 p.m.
(7) Smith did not claim per diem expenses for June 24, 1980, as he
travelled for his personal convenience.
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 and pay travel and per diem
expenses to Lavon Hair, Willmeta Dobbs, or any Agency employee, for the
time said employees engaged in representing the National Treasury
Employees Union, the employees' exclusive representative, during
Union-Agency negotiations.
WE WILL NOT attempt to reclaim or recover travel and per diem
expenses paid to Lavon Hair, Benjamin Smith, John Thompson or any Agency
employee, for the time said employees engaged in representing the
National Treasury Employees Union, the employees' exclusive
representative, during Union-Agency negotiations of a collective
bargaining agreement.
WE WILL NOT in any like or related matter, interfere with, restrain
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL provide Union representatives Lavon Hair and Willmeta Dobbs
their ordinary travel and per diem expenses for July 1 through July 3,
1980.
(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 any employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director, Region 4, Federal Labor Relations Authority,
whose address is: 1776 Peachtree Street, N.W., Suite 501 -- North Wing,
Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324.