09:0362(42)CA - Treasury, IRS and Cincinnati, Ohio District IRS and NTEU and NTEU Joint Council of Chapters 9, 27, and 75 -- 1982 FLRAdec CA
[ v09 p362 ]
09:0362(42)CA
The decision of the Authority follows:
9 FLRA No. 42 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE AND CINCINNATI, OHIO DISTRICT INTERNAL REVENUE SERVICE Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION JOINT COUNCIL OF CHAPTERS 9, 27, AND 75 Charging Party Case No. 5-CA-538 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND A BRIEF IN SUPPORT THEREOF. 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 MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS AARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. 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). ORDER PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE AUTHORITY AND SECTION 7118 OF THE STATUTE, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND CINCINNATI, OHIO DISTRICT, INTERNAL REVENUE SERVICE, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE TO ARON FORSELL, OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, AND NATIONAL TREASURY EMPLOYEES UNION JOINT COUNCIL OF CHAPTERS 9, 27 AND 75, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY TRAVEL AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYEE'S ACTIVITY OR AGENCY. (B) IN ANY LIKE OR RELATED MATTER, INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) PROVIDE UNION REPRESENTATIVE ARON FORSELL OFFICIAL TIME FOR THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON MAY 28, 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE, AND UPON SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO ARON FORSELL WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED. (B) POST AT ITS VARIOUS OFFICES IN THE CINCINNATI, OHIO DISTRICT, WHEREIN UNIT EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DISTRICT DIRECTOR AND SHALL BE POSTED AND MAINTAINED BY HIM 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. (E) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. ISSUED, WASHINGTON, D.C., JUNE 30, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL PROVIDE UNION REPRESENTATIVE ARON FORSELL OFFICIAL TIME FOR THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON MAY 28, 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE AND, UPON SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO ARON FORSELL WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED. WE WILL NOT FAIL OR REFUSE TO PROVIDE TO ARON FORSELL, OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, JOINT COUNCIL OF CHAPTERS 9, 27 AND 75, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL TIME INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, WE SHALL PAY ANY NECESSARY TRANSPORTATION AND PER DIEM EXPENSES. WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHT ASSURED BY THE STATUTE. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. IN EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS 175 W. JACKSON BLVD., SUITE A-1359, CHICAGO, ILLINOIS 60604 AND WHOSE TELEPHONE NUMBER IS (312) 353-0139. -------------------- ALJ$ DECISION FOLLOWS -------------------- JAMES E. ROGERS, JR., ESQUIRE FOR THE RESPONDENT SANDRA LEBOLD, ESQUIRE FOR THE GENERAL COUNSEL MICHAEL BARKOW, ESQUIRE FOR THE CHARGING PARTY BEFORE: FRANCIS E. DOWD ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS MATTER AROSE UNDER THE PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREIN REFERRED TO AS THE STATUTE). ESSENTIALLY, THE CASE INVOLVED WHETHER RESPONDENT IS OBLIGATED UNDER THE STATUTE TO GRANT OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES TO AN EMPLOYEE-UNION REPRESENTATIVE RELATIVE TO HIS PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS WITH THE RESPONDENT. UPON AN UNFAIR LABOR PRACTICE CHARGE FILED ON MAY 19, 1980, THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY, BY THE REGIONAL DIRECTOR FOR REGION 5, ISSUED A COMPLAINT AND NOTICE OF HEARING ON JULY 30, 1980 ALLEGING THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND CINCINNATI, OHIO DISTRICT, INTERNAL REVENUE SERVICE (THE RESPONDENT), ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO GRANT ARON FORSELL, A REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, JOINT COUNCIL OF CHAPTERS 9, 27 AND 85(THE UNION) OFFICIAL TIME IN WHICH TO ENGAGE IN MID-TERM NEGOTIATIONS OVER THE IMPACT AND IMPLEMENTATION OF RESPONDENT'S PROPOSAL CONCERNING A SIGN-OUT REGISTER. RESPONDENT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE AND A HEARING BEFORE THE UNDERSIGNED WAS CONDUCTED ON NOVEMBER 7, 1980. AT THE HEARING ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS-EXAMINE WITNESSES. BRIEFS WERE FILED BY RESPONDENT AND COUNSEL FOR THE GENERAL COUNSEL. UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I MAKE THE FOLLOWING: FINDINGS OF FACT 1. AT ALL TIMES MATERIAL, THE NATIONAL TREASURY EMPLOYEES UNION AND THE NATIONAL TREASURY EMPLOYEES UNION JOINT COUNCIL OF CHAPTERS 9, 27, AND 75 HAVE BEEN THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR AN APPROPRIATE UNIT OF RESPONDENT'S EMPLOYEES. HEADQUARTERS FOR THE INTERNAL REVENUE SERVICE'S CINCINNATI, OHIO DISTRICT IS LOCATED IN CINCINNATI WITH VARIOUS SATELLITE OFFICES LOCATED THROUGHOUT SOUTHERN OHIO. THE JOINT COUNCIL IS COMPRISED OF CHAPTER 9 REPRESENTING EMPLOYEES IN CINCINNATI, OHIO; CHAPTER 27 REPRESENTING EMPLOYEES IN COLUMBUS, OHIO; AND CHAPTER 75 REPRESENTING EMPLOYEES IN DAYTON, OHIO. 2. IN MARCH 1980, BILL CLARK, RESPONDENT'S REPRESENTATIVE IN COLUMBUS, OHIO NOTIFIED ARON FORSELL, PRESIDENT, NTEU CHAPTER 27 THAT THE RESPONDENT INTENDED TO INSTITUTE A SYSTEM INVOLVING A SIGN-OUT REGISTER IN THE CINCINNATI DISTRICT. FORSELL CONTACTED MIKE ORMAND, STEWARD, NTEU CHAPTER 9 AND JOE KAPLAN, NTEU ATTORNEY, WASHINGTON, D.C. AND THE DECISION WAS MADE TO REQUEST NEGOTIATIONS ON THE PROPOSED REGISTER. FORSELL WROTE A LETTER DATED APRIL 1, 1980 TO EUGENE PFEIFFER REQUESTING NEGOTIATIONS OVER THE IMPACT AND IMPLEMENTATION OF THE REGISTER. THE LETTER NAMED THE MEMBERS OF THE UNION NEGOTIATING TEAM INCLUDING FORSELL, ORMAND, AND STEVE JOHNSON, NTEU CHAPTER 75. 3. IN A LETTER DATED MAY 2, 1980, MARY ANN HASENOUR, ACTING CHIEF OF THE PERSONNEL BRANCH STATED THAT THE UNION COULD CHOOSE BETWEEN VARIOUS DATES TO DISCUSS THEIR PROPOSALS ON THE IMPACT AND IMPLEMENTATION OF THE SIGN OUT REGISTER. THE FINAL SENTENCE OF THE LETTER READ, "WE ARE NOT AUTHORIZING OFFICIAL TIME AND REIMBURSEMENT OF TRAVEL AND PER DIEM TO UNION NEGOTIATORS DURING MID-CONTRACT NEGOTIATIONS." AT THE HEARING, GARY OTT, PERSONNEL OFFICER, CINCINNATI DISTRICT, TESTIFIED THAT THE RESPONDENT'S POLICY IS NOT TO REIMBURSE UNION NEGOTIATORS FOR TRAVEL OR PER DIEM EXPENSES AND NOT TO ALLOW OFFICIAL TIME FOR TIME SPENT TRAVELLING TO OR FROM THE NEGOTIATIONS. /1/ 4. ON MAY 28, 1980, UNION AND RESPONDENT NEGOTIATORS MET IN CINCINNATI AND NEGOTIATED THE IMPACT AND IMPLEMENTATION OF THE SIGN-OUT REGISTER. THE NEGOTIATIONS BEGAN AT APPROXIMATELY 1:00 P.M. AND ENDED AT 2:30 P.M. THE UNION WAS REPRESENTED BY FORSELL AND ORMAND. JOHNSON, THE THIRD MEMBER OF THE UNION NEGOTIATING TEAM, CHOSE NOT TO ATTEND BECAUSE HE DID NOT WISH TO TAKE ANNUAL LEAVE. AS A RESULT OF THE NEGOTIATIONS, A JOINT MEMO FROM PFEIFFER AND MIKE STOBL, CHAIRMAN, NTEU JOINT COUNCIL WAS DEVELOPED (JT. EXH. 7). 5. THE SPECIFIC DETAILS CONCERNING OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES ARE AS FOLLOWS: ON MAY 28, 1980, FORSELL LEFT HIS HOME IN COLUMBUS, OHIO AT 7:30 A.M. OR 8:00 A.M., DROVE TO CINCINNATI, OHIO AND ARRIVED AT APPROXIMATELY 10:00 A.M. HE MET WITH ORMAND TO DISCUSS THE PROPOSALS AND WENT TO LUNCH FROM APPROXIMATELY 11:00 A.M. TO 12:00 NOON. HE REVIEWED HIS NOTES UNTIL 1:00 P.M. WHEN THE NEGOTIATIONS BEGAN. AT 2:30 P.M. OR 3:00 P.M. THE NEGOTIATIONS WERE COMPLETED AND HE RETURNED HOME TO COLUMBUS. THE DISTANCE BETWEEN CINCINNATI AND COLUMBUS IS APPROXIMATELY 120 MILES AND THE DRIVE TOOK APPROXIMATELY TWO AND A HALF HOURS EACH WAY. FORSELL TOOK EIGHT HOURS OF LEAVE FOR MAY 28, 1980. TO DO SO WOULD HAVE BEEN A FUTILE GESTURE UNDER THESE CIRCUMSTANCES AND, IN MY OPINION, WAS NOT NECESSARY. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, 4 FLRA NO. 60. FORSELL WAS THE ONLY MEMBER OF THE UNION NEGOTIATING TEAM THAT INCURRED TRAVEL AND PER DIEM EXPENSES. DISCUSSION AND CONCLUSIONS OF LAW THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE, SECTION 7131(A) PROVIDES; 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 EMPLOYEES OTHERWISE WOULD BE IN A DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED AS REPRESENTING THE AGENCY FOR SUCH PURPOSES. IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, THE AUTHORITY EXPANDED UPON THE MEANING AND APPLICATION OF SECTION 7131(A) OF THE STATUTE. IT CONCLUDED THAT THE OFFICIAL TIME PROVISIONS ENCOMPASS ALL NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN AGENCY, "REGARDLESS OF WHETHER SUCH NEGOTIATIONS PERTAIN TO THE NEGOTIATION OR RENEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT." THE AUTHORITY ALSO CONCLUDED THAT EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE ARE ENTITLED TO RECEIVE OFFICIAL TIME DURING THE TIME THEY WOULD OTHERWISE BE IN A DUTY STATUS UNDER SECTION 7131(A) OF THE STATUTE, WHICH ENTITLEMENT INCLUDES PAYMENTS BY THE AGENCY "FOR THEIR DUTY TIME AND TRAVEL AND PER DIEM EXPENSES." IN REACHING THE FOREGOING CONCLUSIONS, THE AUTHORITY INTERPRETED THE LANGUAGE AND LEGISLATIVE HISTORY OF THE STATUTE INCLUDING SECTION 7101(A) WHICH STATES THAT "LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL SERVICE ARE IN THE PUBLIC INTEREST." FURTHER, THE AUTHORITY STATED THAT ONLY BY AFFORDING UNION NEGOTIATORS OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES MAY EFFECTIVE UNION REPRESENTATION COMPARABLE TO THE REPRESENTATION OF MANAGEMENT BE ACHIEVED UNDER THE STATUTE, AND ONLY IN THIS MATTER MAY BOTH PARTIES EFFECTIVELY FULFILL THEIR RESPECTIVE OBLIGATIONS UNDER SECTION 7114(B) OF THE STATUTE TO MEET AT REASONABLE TIMES AND AS FREQUENTLY AS MAY BE NECESSARY FOR GOOD-FAITH NEGOTIATIONS ON CONDITIONS OF EMPLOYMENT. IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40, THE RESPONDENT CHALLENGED THE AUTHORITY'S VIEWS AND MADE THESE CONTENTIONS: 1. THE GUIDANCE AND INTERPRETATION CONTAINED IN 2 FLRA NO. 31 IS ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION AND CONSTITUTES THE ESTABLISHMENT OF A POLICY WHICH IS BEYOND THE STATUTORY AUTHORITY OF THE AUTHORITY. 2. THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES PURSUANT TO 2 FLRA NO. 31 IS CONTRARY TO LAW IN THAT MONEY HAS NOT BEEN SPECIFICALLY APPROPRIATED FOR THIS PURPOSE. THE FOREGOING ARGUMENTS, WHICH ARE AGAIN ASSERTED IN THE CASE BEFORE ME, WERE REJECTED BY ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO, WHO STATED AS FOLLOWS: AS AN ADMINISTRATIVE LAW JUDGE I AM CONSTRAINED TO FOLLOW THE AUTHORITY'S PRONOUNCEMENTS. THEREFORE, TO ADDRESS ARGUMENTS WHICH ATTACH A STATUTORY INTERPRETATION MADE BY THE AUTHORITY OR QUESTION THE AUTHORITY'S POWER OR JUDGMENT IN TREATING A MATTER WOULD SERVE NO USEFUL PURPOSE, ESPECIALLY WHERE, AS HERE, THE AUTHORITY'S POSITION IS CLEAR AND UNMISTAKABLE. ACCORDINGLY, I REJECT RESPONDENT'S ARGUMENT CHALLENGING THE AUTHORITY'S DISCRETION IN 2 FLRA NO. 31 AS BEING ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION AND BEYOND ITS STATUTORY AUTHORITY. SIMILARILY, I REJECT RESPONDENT'S CONTENTION THAT THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES, AS REQUIRED BY THE AUTHORITY IN 2 FLRA NO. 31, IS CONTRARY TO LAW. ON APPEAL, THE AUTHORITY AFFIRMED AND ADOPTED THE ADMINISTRATIVE LAW JUDGE'S DECISION. THAT DECISION IS BINDING UPON ME AND IS EQUALLY APPLICABLE TO THE INSTANT PROCEEDING. IN VIEW OF THE FOREGOING, I FIND AND CONCLUDE THAT RESPONDENT FAILED AND REFUSED TO COMPLY WITH SECTION 7131 OF THE STATUTE AND THEREBY VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY THE FOLLOWING CONDUCT: REFUSING TO GIVE TO UNION REPRESENTATIVE ARON FORSELL OFFICIAL TIME FOR HIS PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS ON MAY 28, 1981 INCLUDING NECESSARY TRAVEL TIME AS OCCURRED DURING HIS REGULAR WORK HOURS, AND INCLUDING NECESSARY TRANSPORTATION AND PER DIEM EXPENSES. HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING: ORDER PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE AND CINCINNATI, OHIO DISTRICT, INTERNAL REVENUE SERVICE, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE TO ARON FORSELL OR ANY AGENCY EMPLOYEE, WHILE ENGAGING IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, AND NATIONAL TREASURY EMPLOYEES UNION JOINT COUNCIL OF CHAPTER 9, 27 AND 75, THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE, DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY TRAVEL AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYEE ACTIVITY OR AGENCY. (B) IN ANY LIKE OR RELATED MATTER, INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE PURPOSES AND POLICY OF THE STATUTE: (A) PROVIDE UNION REPRESENTATIVE ARON FORSELL OFFICIAL TIME FOR THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON MAY 28, 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE, AND UPON SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO ARON FORSELL WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED. (B) POST AT ITS VARIOUS OFFICES IN THE CINCINNATI, OHIO 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 5, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. FRANCIS E. DOWD ADMINISTRATIVE LAW JUDGE DATED: MARCH 16, 1981 WASHINGTON, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL PROVIDE UNION REPRESENTATIVE ARON FORSELL OFFICIAL TIME FOR THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON MAY 28, 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE AND, UPON SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO ARON FORSELL WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED. WE WILL NOT FAIL OR REFUSE TO PROVIDE TO ARON FORSELL OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, JOINT COUNCIL OF CHAPTERS 9, 27 AND 75, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL TIME INCLUDING NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, WE SHALL PAY ANY NECESSARY TRANSPORTATION AND PER DIEM EXPENSES. WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, REGION 5, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 175 W. JACKSON BLVD. SUITE A-1359, CHICAGO, ILLINOIS 60604. --------------- FOOTNOTES$ --------------- /1/ RESPONDENT ALSO CONTENDS THAT ITS "POLICY" IS TO GRANT OFFICIAL TIME FOR THE TIME ACTUALLY SPENT IN A NEGOTIATION MEETING. I AM NOT PERSUADED BY THE TESTIMONY OF MICHAEL ORMAND OR GARY OTT, OR BY JT. EXHIBIT NO. 5 THAT SUCH A POLICY EXISTS. ASSUMING, ARGUENDO, THAT RESPONDENT HAS SUCH A POLICY, THE RECORD CLEARLY INDICATED THAT IT WAS NOT CARRIED OUT IN THIS PARTICULAR CASE. HASENOUR'S LETTER DENIED OFFICIAL TIME ALTOGETHER AND THEREFORE WAS INCONSISTENT WITH RESPONDENT'S STATED "POLICY." THE BURDEN WAS ON RESPONDENT TO CLARIFY THE SITUATION AND ADVISE FORSELL EITHER BEFORE OR AFTER HE SUBMITTED A LEAVE SLIP FOR 8 HOURS ANNUAL LEAVE. I FIND THAT RESPONDENT FAILED TO SO NOTIFY FORSELL AND TO GIVE HIM ANY OFFICIAL TIME ON MAY 28, 1980. I DO NOT FIND THAT FORSELL "VOLUNTARILY" TOOK ANNUAL LEAVE AS CONTENDED BY RESPONDENT.