[ v10 p210 ]
10:0210(42)CA
The decision of the Authority follows:
10 FLRA No. 42
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. AND ITS
INDIANAPOLIS, INDIANA AND
DALLAS, TEXAS DISTRICTS
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 49
Charging Party
Case No. 5-CA-593
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENTS HAD ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THEY BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENTS FILED EXCEPTIONS TO THE
JUDGE'S DECISION AND A SUPPORTING BRIEF.
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 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.
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.2ND 732 (9TH CIR. 1982); FLORIDA NATIONAL
GUARD, 5 FLRA NO. 49(1981), APPEAL DOCKETED, NO. 81-5466 (5TH CIR. MAY
18, 1981). /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, IT IS HEREBY ORDERED THAT
THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, WASHINGTON,
D.C., AND ITS INDIANAPOLIS, INDIANA AND DALLAS, TEXAS DISTRICTS, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE EMPLOYEES GENE FRIEDMAN AND NANCY
SMITH OFFICIAL TIME, INCLUDING NECESSARY TRAVEL AND PER DIEM EXPENSES,
IN COMPLIANCE WITH SECTION 7131(A) OF THE STATUTE, FOR THE TIME THEY
WERE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, AND
THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 49, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, IN CONNECTION WITH IMPASSE PROCEEDINGS IN JUNE
1980.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE EMPLOYEES GENE FRIEDMAN AND NANCY SMITH OFFICIAL TIME FOR
THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON JUNE 12 AND 13,
1980, IN CONNECTION WITH IMPASSE PROCEEDINGS, MAKE THEM WHOLE FOR ANY
ANNUAL LEAVE CHARGED TO THEM FOR THOSE DAYS, AND, UPON SUBMISSION OF AN
APPROPRIATE VOUCHER, REIMBURSE THEM FOR THEIR TRAVEL AND PER DIEM
EXPENSES INCURRED IN CONNECTION WITH SUCH IMPASSE PROCEEDINGS.
(B) POST AT ITS INDIANAPOLIS, INDIANA AND DALLAS, TEXAS DISTRICT
OFFICES, 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 RESPECTIVE DISTRICT DIRECTORS OR THEIR DESIGNEES
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 INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION V, 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., SEPTEMBER 30, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE EMPLOYEES GENE FRIEDMAN AND
NANCY SMITH OFFICIAL TIME, INCLUDING NECESSARY TRAVEL AND PER DIEM
EXPENSES, IN COMPLIANCE WITH SECTION 7131(A) OF THE STATUTE, FOR THE
TIME THEY WERE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES
UNION, AND THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 49, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN CONNECTION WITH IMPASSE
PROCEEDINGS IN JUNE 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 PROVIDE EMPLOYEES GENE FRIEDMAN AND NANCY SMITH OFFICIAL TIME
FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON JUNE 12 AND 13,
1980 IN CONNECTION WITH IMPASSE PROCEEDINGS, MAKE THEM WHOLE FOR ANY
ANNUAL LEAVE CHARGED TO THEM FOR THOSE DAYS, AND, UPON SUBMISSION OF AN
APPROPRIATE VOUCHER, REIMBURSE THEM FOR THEIR TRAVEL AND PER DIEM
EXPENSES INCURRED IN CONNECTION WITH SUCH IMPASSE PROCEEDINGS.
(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
175 WEST JACKSON BOULEVARD, SUITE 1359-A, CHICAGO, ILLINOIS 60604, AND
WHOSE TELEPHONE NUMBER IS: (312) 353-0139.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOHN A. FREEMAN, ESQ.
SHANDON VICKERS, ESQ.
FOR THE RESPONDENT
SANDRA LEBOLD, ESQUIRE
FOR THE GENERAL COUNSEL
JOSEPH V. KAPLAN, ESQ.
GEORGE BILQUE, ESQ.
FOR THE CHARGINIG 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
INVOLVES WHETHER RESPONDENT IS OBLIGATED UNDER THE STATUTE TO GRANT
OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES TO EMPLOYEE-UNION
REPRESENTATIVES RELATIVE TO THEIR PARTICIPATION IN AN IMPASSE PROCEEDING
BEFORE THE FEDERAL SERVICE IMPASSES PANEL IN WASHINGTON, D.C.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED ON JUNE 26, 1980, AND AN
AMENDED CHARGE FILED ON AUGUST 28, 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 OCTOBER 23, 1980 ALLEGING
THAT THE DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
WASHINGTON, D.C. AND ITS INDIANAPOLIS, INDIANA AND DALLAS, TEXAS
DISTRICTS (THE RESPONDENT), ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE
MEANING OF SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO
GRANT TO GENE FRIEDMAN AND NANCY SMITH, REPRESENTATIVES OF THE NATIONAL
TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, CHAPTER
49, (THE UNION) OFFICIAL TIME IN WHICH TO PARTICIPATE IN AN IMPASSE
PROCEEDING BEFORE THE FEDERAL SERVICE IMPASSES PANEL IN WASHINGTON,
D.C., ON JUNE 13, 1980, CONCERNING A DISPUTE OVER THE IMPLEMENTATION OF
PHASE V OF THE "COLLINS SYSTEM." RESPONDENT DENIED THE COMMISSION OF ANY
UNFAIR LABOR PRACTICE AND A HEARING BEFORE THE UNDERSIGNED WAS CONDUCTED
ON DECEMBER 17, 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, THE GENERAL COUNSEL AND THE
CHARGING PARTY.
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 EMPLO?EES UNION AND
THE NATIONAL TREASURY EMPLOYEES UNION CHAPTER 49, HEREINAFTER THE UNION,
HAVE BEEN THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR AN
APPROPRIATE UNIT OF RESPONDENT EMPLOYEES.
2. ON JUNE 11, 1980, GENE FRIEDMAN, PRESIDENT, NATIONAL TREASURY
EMPLOYEES UNION CHAPTER 49, INDIANAPOLIS, INDIANA WAS TOLD THAT HE WAS
GOING TO BE A WITNESS AT A HEARING OF THE FEDERAL SERVICE IMPASSES PANEL
IN WASHINGTON, D.C. ON JUNE 13, 1980. THE UNION'S NATIONAL OFFICE
SELECTED FRIEDMAN TO BE A WITNESS BUT THE INFORMATION WAS FIRST RELAYED
TO HIM BY JAMES CHRISTOPHER, CHIEF, TAXPAYER SERVICE DIVISION,
INDIANAPOLIS, INDIANA AND A MANAGEMENT WITNESS FOR THE FSIP HEARING.
THE HEARING CONCERNED THE IMPLEMENTATION OF THE ROCKWELL COLLINS
COMPUTER SYSTEM ON A NATIONAL BASIS. FRIEDMAN HAD FAMILIARITY WITH THE
SUBJECT BECAUSE HE HAD RECENTLY NEGOTIATED A LOCAL AGREEMENT ON THE SAME
SUBJECT FOR THE INDIANAPOLIS DISTRICT.
3. PRIOR TO DEPARTING FOR WASHINGTON, FRIEDMAN HAD SEVERAL
CONVERSATIONS WITH THE RESPONDENT CONCERNING OFFICIAL TIME, TRAVEL AND
PER DIEM FOR THE TRIP. THESE CONVERSATIONS WERE CONFIRMED IN WRITING.
DESPITE FRIEDMAN'S REQUEST TO THE CONTRARY, THE RESPONDENT CONSISTENTLY
DENIED FRIEDMAN OFFICIAL TIME FOR TIME SPENT IN TRAVEL, TRAVEL EXPENSES,
AND PER DIEM FOR THE TRIP. HOWEVER, HE WAS GRANTED EIGHT HOURS OF
OFFICIAL TIME FOR THE ACTUAL FSIP PROCEEDING ON JUNE 13, 1980.
4. AT APPROXIMATELY NOON ON JUNE 12, 1980, FRIEDMAN LEFT FOR THE
HEARING IN WASHINGTON, D.C. ON JUNE 13, 1980, FRIEDMAN ATTENDED THE
FSIP HEARING. THE RESPONDENT HAD APPROXIMATELY EIGHT REPRESENTATIVES
AND THE UNION HAD FOUR REPRESENTATIVES. A SETTLEMENT CONFERENCE WAS
HELD AND PROVED SUCCESSFUL. FRIEDMAN PARTICIPATED IN THE SETTLEMENT
EFFORTS. THE HEARING WAS FORMALLY OPENED AND THE SETTLEMENT WAS READ
INTO THE RECORD. FRIEDMAN RETURNED TO INDIANAPOLIS THE SAME DAY
ARRIVING AT HIS HOME AT ABOUT 8:00 P.M.
5. FRIEDMAN LEFT AT NOON ON JUNE 12, 1980 BECAUSE OF AN IRS
REQUIREMENT, AND A PROVISION IN THE PARTIES' MULTI-DISTRICT AGREEMENT,
ARTICLE 28, WHICH PROVIDES THAT EMPLOYEES ARE TO TRAVEL ON THE
EMPLOYEE'S STANDARD WORK TIME. JAMES CHRISTOPHER, A RESPONDENT WITNESS
FROM INDIANAPOLIS, INFORMED FRIEDMAN THAT HE (CHRISTOPHER) WAS LEAVING A
DAY EARLIER AT 1:00 P.M. ON JUNE 11, 1980 TO ATTEND THE FSIP HEARING.
CHRISTOPHER AND FRIEDMAN RETURNED TO INDIANAPOLIS ON THE SAME FLIGHT ON
JUNE 13, 1980.
6. FOLLOWING THE TRIP TO WASHINGTON, D.C., THE RESPONDENT MADE AN
EFFORT TO REDUCE FROM EIGHT HOURS TO FIVE HOURS THE AMOUNT OF OFFICIAL
TIME FRIEDMAN HAD PREVIOUSLY BEEN GRANTED FOR THE HEARING ITSELF.
FRIEDMAN DID NOT SUBMIT A TRAVEL VOUCHER BECAUSE HE FELT IT WOULD BE
FUTILE GIVEN THE RESPONDENT'S EARLIER REFUSAL. THESE REFUSALS HAD BEEN
CLEAR AND REPEATED.
7. NANCY SMITH, VICE PRESIDENT AND STEWARD, NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 46, DALLAS, TEXAS WAS CALLED BY FRANK FERRIS OF
NTEU'S NATIONAL OFFICE IN JUNE 1980. HE ASKED HER TO COME TO
WASHINGTON, D.C. TO TESTIFY BEFORE THE FEDERAL SERVICE IMPASSES PANEL
REGARDING THE IMPLEMENTATION OF THE COLLINS COMPUTER SYSTEM ON THE
NATIONAL LEVEL.
8. SMITH WENT TO COY WILSON, ACTING BRANCH CHIEF, AND REQUESTED TIME
TO ATTEND THE HEARING. HE STATED THAT SHE WOULD RECEIVE NO
ADMINISTRATIVE TIME FOR TRAVEL TO OR FROM WASHINGTON, D.C. FOR THE DAY
THE HEARING WAS SCHEDULED, SHE WOULD RECEIVE EIGHT HOURS OFFICIAL TIME
AND WOULD BE REQUIRED TO TAKE ONE HOUR OF ANNUAL LEAVE OR LEAVE WITHOUT
PAY. /2/
9/ ON JUNE 12, 1980, SMITH LEFT HER HOME AT APPROXIMATELY 8:00 P.M.
AND FLEW TO WASHINGTON, D.C. ON JUNE 13, 1980, SHE WENT TO THE MEETING
OF THE IMPASSES PANEL. SHE WAS THERE FROM APPROXIMATELY 9:00 A.M. TO
1:30 P.M. ALTHOUGH SHE WAS NOT CALLED AS A WITNESS, SHE DID PARTICIPATE
IN THE SETTLEMENT EFFORTS BY CONSULTING WITH THE NTEU ATTORNEYS. SHE
RETURNED TO DALLAS FOLLOWING THE HEARING.
10. UPON HER RETURN TO DALLAS, SMITH SUBMITTED A TRAVEL VOUCHER FOR
HER EXPENSES. THE VOUCHER WAS RETURNED BY THE RESPONDENT WITH THE
NOTATION:
ON FEBRUARY 11, 1980, BOB TOBIAS, NTEU, WAS OFFICIALLY NOTIFIED THAT
IRS WOULD NOT PAY
TRAVEL AND PER DIEM FOR UNION NEGOTIATIONS. SINCE THE IMPASSE
PROCEEDINGS ARE AN EXTENSION OF NEGOTIATION PROCESS, I AM RETURNING YOUR
VOUCHER WITHOUT ACTION.
ALSO, UPON HER RETURN, SMITH LEARNED THAT AN SF-71, LEAVE REQUEST,
HAD BEEN SUBMITTED ON HER BEHALF WHICH PROVIDED (A) FOUR HOURS OF ANNUAL
LEAVE AND FIVE HOURS OF LEAVE WITHOUT PAY /3/ FOR JUNE 12, 1980; (B)
EIGHT HOURS OF ADMINISTRATIVE LEAVE AND ONE HOUR LEAVE WITHOUT PAY FOR
JUNE 13, 1980. A SHORT TIME LATER, SMITH WAS REQUIRED TO SIGN AN
AMENDED SF-71 WHICH ALTERED THE ORIGINAL IN THAT IT PROVIDED FIVE HOURS
OF ADMINISTRATIVE LEAVE (THE ACTUAL TIME SPENT AT THE FSIP PROCEEDINGS)
AND FOUR HOURS LEAVE WITHOUT PAY FOR JUNE 13, 1980. SMITH PROTESTED
THIS DENIAL OF OFFICIAL TIME BUT THE RESPONDENT REFUSED TO GRANT HER ANY
MORE HOURS OF OFFICIAL TIME FOR THE TWO DAY TRIP.
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
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.
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 ATTACK 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 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 REPRESENTATIVES GENE FRIEDMAN AND
NANCY SMITH OFFICIAL TIME FOR THEIR ATTENDANCE AT IMPASSE PROCEEDINGS ON
JUNE 12 AND 13, 1980 IN WASHINGTON, D.C., INCLUDING NECESSARY TRAVEL
TIME AS OCCURRED DURING THEIR 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, WASHINGTON, D.C., AND ITS
INDIANAPOLIS, INDIANA AND DALLAS, TEXAS DISTRICTS, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO GENE FRIEDMAN AND NANCY SMITH
OR ANY AGENCY
EMPLOYEE, WHILE ENGAGING IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, AND NATIONAL
TREASURY EMPLOYEES UNION CHAPTER 49, THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE, DURING IMPASSE
PROCEEDINGS, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY
TRAVEL TIME AS OCCURS
DURING THE EMPLOYEES' REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD
OTHERWISE BE IN A WORK OR
PAID LEAVE STATUS. IN ADDITION, NECESSARY 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 REPRESENTATIVES GENE FRIEDMAN AND NANCY SMITH
OFFICIAL TIME FOR THE
PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON JUNE 12 AND 13, 1980,
AND MAKE THEM WHOLE FOR
THE ANNUAL LEAVE THEY UTILIZED ON THOSE DATES, AND UPON SUBMISSION OF
AN APPROPRIATE VOUCHER,
PAY TO GENE FRIEDMAN AND NANCY SMITH WHATEVER TRAVEL AND PER DIEM
EXPENSES AN EMPLOYEE ENGAGED
IN OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED.
(B) POST AT ITS DALLAS, TEXAS AND INDIANAPOLIS, INDIANA OFFICES,
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 REPRESENTATIVES GENE FRIEDMAN AND NANCY SMITH
OFFICIAL TIME FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON
JUNE 12 AND 13, 1980, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE UTILIZED
ON THAT DATE AND, UPON SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO GENE
FRIEDMAN AND NANCY SMITH 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 GENE FRIEDMAN AND NANCY
SMITH OR ANY AGENCY EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 49, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DURING IMPASSE PROCEEDINGS, 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, 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/ BUT SEE DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK
(ALBANY, NEW YORK), 7 FLRA NO. 69(1981), REVERSED SUB NOM. DIVISION OF
MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK, AND DEPARTMENT OF DEFENSE
V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 82-4036 (2D CIR. JUNE 28,
1982) AND U.S. DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION
ADMINISTRATION, AGRICULTURAL RESEARCH, NORTH CENTRAL REGION,
DAKOTAS-ALASKA AREA, 6 FLRA NO. 45(1981), REVERSED SUB NOM. UNITED
STATES DEPARTMENT OF AGRICULTURE V. FEDERAL LABOR RELATIONS AUTHORITY,
NO. 81-1948 (9TH CIR. AUGUST 9, 1982).
/2/ SMITH WORKS A COMPRESSED TIME SCHEDULE. FOR EACH TWO WEEK PAY
PERIOD, SHE WORKS 9 HOURS A DAY DURING THE FIRST FIVE DAY WEEK. DURING
THE SECOND WEEK, SHE WORKS NINE HOURS FOR THE FIRST THREE DAYS, EIGHT
HOURS ON THE FOURTH DAY AND IS OFF ON THE FIFTH DAY. JUNE 12 AND 13,
1980 FELL ON THE FOURTH AND FIFTH DAY OF THE FIRST WEEK OF THE PAY
PERIOD. AS SUCH, SMITH WOULD HAVE BEEN IN DUTY STATUS FOR NINE HOURS ON
EACH OF THOSE DAYS.
/3/ SMITH HAD USED UP HER ANNUAL LEAVE AND FOR THAT REASON HAD TO
TAKE LEAVE WITHOUT PAY.