[ v22 p821 ]
22:0821(89)CA
The decision of the Authority follows:
22 FLRA No. 89
DEPARTMENT OF THE TREASURY
AND INTERNAL REVENUE SERVICE
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-2228
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties, who have
agreed that no material issue of fact exists. The complaint alleges
that Respondent Department of the Treasury (Treasury) and Respondent
Internal Revenue Service (IRS) violated section 7116(a)(1), (5), (6) and
(8) of the Federal Service Labor-Management Relations Statute (the
Statute) /1/ by refusing to cooperate in impasse procedures and impasse
decisions and by failing to negotiate in good faith with the National
Treasury Employees Union (NTEU), the exclusive bargaining representative
of certain IRS employees.
II. Facts
As more fully set forth in the stipulated record, the IRS and NTEU
failed to reach agreement on proposals that union negotiators would be
granted official time, travel and per diem expenses for national and
local mid-term contract negotiations. Once the parties reached
impasses, the NTEU submitted these proposals to the Federal Service
Impasses Panel (the Panel) for resolution. Respondent IRS never
declared the Union's proposals to be nonnegotiable or illegal prior to
the proceedings before the Panel. On or about December 24, 1980, the
Panel issued a Decision and Order in Department of the Treasury,
Internal Revenue Service, Washington, D.C. and National Treasury
Employees Union, Case No. 80 FSIP 68 (1980), which directed Respondent
IRS to incorporate into its collective bargaining agreement with NTEU
the following provisions approved by the Panel:
Section 3 -- Mid-Term Negotiations
* * *
C. If the parties enter into mid-contract negotiations during
the life of this agreement, the following ground rules will apply:
1. For nationally implemented changes referred to in Section
2A above:
* * *
c. a number of bargaining unit employees equal to the number
of management's representatives shall be given administrative time
and paid travel and per diem to attend all mid-term bargaining
sessions; provided, however, the union shall be allowed no more
than four bargaining unit employees.
* * *
2. For locally negotiated changes referred to in Section 4B1
above:
* * *
b. a number of bargaining unit employees equal to the number
of management's representatives shall be given administrative time
and paid travel and per diem to attend all mid-term bargaining
sessions; provided, however, the union shall be allowed no more
than four bargaining unit employees.
Subsequent to its receipt of the Panel's Order, IRS notified its
parent agency, Treasury, of the Panel's action and informed NTEU that it
would incorporate the contract provisions directed by the Panel once
that language had been approved by Treasury in accordance with agency
head review under section 7114(c) of the Statute. /2/ On February 24,
1981, Treasury notified IRS and NTEU that the provisions directed by to
the Panel's Order had been reviewed and were disapproved in accordance
with the Agency's previously stated position that travel and per diem
expenses for employee union negotiators were illegal and nonnegotiable
under section 7106(a)(1) of the Statute. /3/ On March 5, 1981, IRS
advised NTEU that it would not incorporate the language ordered by the
Panel because of the agency head's disapproval of those provisions
pursuant to section 7114(c) of the Statute, and that it would not pay
employee travel and per diem requests submitted under the disapproved
provisions. Following Respondent Treasury's disapproval of the
provisions, Respondent IRS has not incorporated the contract provisions
as ordered by the Panel and has not reimbursed employees who have
claimed travel and per diem expenses pursuant to the contract provisions
directed by the Panel.
III. Positions of the Parties
A. Respondents IRS and Treasury
Respondent Treasury contends that the underlying decision and order
of the Panel is unlawful and that a Federal agency cannot be ordered or
required to implement an unlawful provision. It further argues that the
Panel's requirement that provisions be incorporated into the collective
bargaining agreement between IRS and NTEU is subject to review by the
agency head under its interpretation of section 7114(c) of the Statute,
and that the Panel's decision is properly reviewable by the Authority in
an unfair labor practice proceeding such as this case. Respondent
Treasury further asserts that the Panel's decision was addressed only to
IRS and thus may not serve as a basis for a charge or complaint against
Treasury. Additionally, Treasury contends that it has committed no
violation of section 7116(a)(1), since it has not interfered with,
restrained or coerced employees, and since NTEU represents no Treasury
employees but represents only IRS employees. Treasury also contends
that section 7116(a)(5) has not been violated since it has no duty to
negotiate with NTEU because NTEU has exclusive representative status at
IRS and not at Treasury; that it did not violate section 7116(a)(6),
since it was not a party to the Panel proceeding; and that it did not
violate section 7116(a)(8) because Treasury was never a party in the
matters alleged within the instant complaint. Finally, Treasury
contends that section 7119(c)(5)(C) of the Statute /4/ is not applicable
to it since Treasury was never a party to any final action of the Panel.
Respondent IRS contends that the Panel should not have asserted
jurisdiction over this matter since it was not conclusively shown that
an impasse existed, /5/ and since the Authority was concurrently
reviewing unfair labor practice cases involving identical subject
matter. Assuming that the Panel properly asserted jurisdiction,
however, IRS argues that the Authority is empowered to review the
Panel's action in this unfair labor practice proceeding and should
reverse that action. IRS further raises as a defense the argument that
it properly submitted the contract provisions to Treasury under section
7114(c) of the Statute and properly relied on the agency head's
determination that those provisions were illegal and nonnegotiable.
B. The General Counsel
The General Counsel contends that Respondent IRS violated section
7116(a)(1), (5), (6) and (8) of the Statute when it failed to comply
with the final Order of the Panel and incorporate the language directed
by the Panel into its agreement with NTEU. The General Counsel argues
that since orders of the Panel are not subject to appeal, any failure to
comply with such orders constitutes a violation of section 7116(a)(1)
and (6) of the Statute. The General Counsel argues that IRS also
violated section 7116(a)(1) and (8) of the Statute by its failure to
comply with section 7119(c)(5)(C) of the Statute because, under that
section, final action of the Panel is binding on the parties during the
term of their negotiated agreement, unless the parties agree otherwise.
Finally, the General Counsel argues that IRS violated section 7116(a)(1)
and (5) of the Statute because its failure to incorporate the provisions
into its negotiated agreement as directed by the Panel constituted a
unilateral change in a condition of employment established by the Panel.
The General Counsel alleges that Respondent Treasury violated section
7116(a)(1), (5), (6) and (8) of the Statute when it directed Respondent
IRS not to abide by the final Order of the Panel. /6/ The General
Counsel argues that Respondent Treasury has utilized section 7114(c) of
the Statute to review and disapprove a final decision of the Panel, a
right, the General Counsel asserts, Respondent Treasury does not have.
Moreover, the General Counsel argues that Respondent Treasury's reasons
for failing to approve the subject provisions are inappropriate in that
Respondent IRS never challenged the negotiability of the Union's
proposals prior to the Panel's ruling. Thus, the General Counsel argues
that Respondent Treasury violated the above sections of the Statute when
it directed Respondent IRS not to comply with the Panel's Order.
C. The Charging Party
The Charging Party argues essentially the same points raised by the
General Counsel with the exception of one argument which the Charging
Party is alone in raising: that inasmuch as Panel regulations require
Respondent IRS to inform the Panel of its acceptance of the Panel's
decision within 30 days, the IRS rejection of the Panel's Order was
untimely. /7/ The Charging Party requests, as part of the remedy, that
IRS be required to accept and process all claims for travel and per diem
reimbursement from the effective date of the contract.
IV. Analysis
It is well established that section 7114(c) of the Statute authorizes
an agency head to review provisions of a collective bargaining
agreement, including those imposed on the parties by the Panel, and to
disapprove provisions which the agency head determines are not in
accordance with the Statute and other applicable law, rule, or
regulation. Interpretation and Guidance, 15 FLRA 564 (1984), aff'd.,
sub nom. American Federation of Government Employees, AFL-CIO v. FLRA,
778 F.2d 850 (D.C. Cir. 1985). An agency head does not violate the
Statute merely by reviewing and disapproving provisions imposed by the
Panel. However, an agency head's decision to disapprove a provision
imposed by the Panel is subject to review either through a negotiability
appeal or, as here, in an unfair labor practice proceeding and, if the
Authority finds that the provision is not contrary to the Statute or
other applicable law, rule, or regulation, such agency head disapproval
would constitute a failure or refusal "to cooperate in . . . impasse
decisions" in violation of section 7116(a)(1) and (6) of the Statute.
See also U.S. Department of Army, Headquarters, and DARCOM HQ, 17 FLRA
84 (1985), affirmed in relevant part sub nom. National Federation of
Federal Employees v. FLRA, 789 F.2d 944 (D.C. Cir. 1986).
The negotiability of the Panel-imposed provisions requiring payment
of a union official's travel and per diem expenses in this case was
premised upon the Authority's earlier conclusion that employees on
"official time" under section 7131 of the Statute were entitled to
travel expenses and per diem allowances. See Interpretation and
Guidance, 2 FLRA 265 (1979). This interpretation was rejected by the
Supreme Court in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA,
464 U.S. 89 (1983). In footnote 17 of its decision, however, the
Supreme Court stated that "unions may presumably negotiate such payments
in collective bargaining as they do in the private sector." 464 U.S. at
107. The Authority thereafter held in 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. 86-1198 (D.C. Cir. Mar. 27, 1986),
that a proposal requiring the employer to pay the travel and per diem
expenses incurred by employees while on official time was within the
duty to bargain. The Authority concluded that the payment of such
expenses involved a "condition of employment" since representation of
employees in matters concerning their employment affects the "working
conditions" of employees. The Authority concluded that since
determinations concerning whether to make such payments are within the
discretionary administrative authority of an agency, the agency was
obligated under the Statute to exercise that discretion through
negotiation.
The Authority concludes, based on this precedent, that consistent
with the scope of our review discussed in Interpretation and Guidance,
15 FLRA 564 (1984), the provisions which the Panel directed IRS and NTEU
to incorporate into their agreement herein are fully consistent with
applicable law, rule and regulation and thus within the duty to bargain.
Therefore, the agency head's action in refusing to approve these
provisions was unlawful, and Respondent Treasury thereby violated
section 7116(a)(1) and (6) of the Statute. /8/
With respect to Respondent IRS, the Authority has also previously
addressed whether a subordinate activity should be found to have
violated the Statute when it fails to implement a provision disapproved
by an agency head pursuant to section 7114(c) of the Statute. In
Departments of the Army and the Air Force, National Guard Bureau and
Montana Air National Guard, 10 FLRA 553 (1982), rev'd on other grounds
sub nom. Montana Air National Guard v. FLRA, 730 F.2d 577 (9th Cir.
1984), the Authority held that the Montana Air National Guard did not
violate the Statute by its ministerial actions in implementing the
directives of higher level management even though it found that the
National Guard Bureau's action in disapproving a contractual provision
had violated section 7114(c)(2) and section 7116(a)(1), (5), and (8) of
the Statute. The Authority concludes, based on the above precedent,
that Respondent IRS did not violate the Statute by engaging in the
ministerial act of forwarding the Panel-directed language to Respondent
Treasury for agency head review and thereafter failing to incorporate
the Panel-directed language into its collective bargaining agreement
subsequent to the determination by Respondent Treasury to disapprove
such language.
IRS's contentions that the Panel should not have asserted
jurisdiction because the evidence before it did not establish an
impasse, and because identical issues were concurrently before the
Authority in unfair labor practice proceedings, merely constitute
disagreement with the Panel. The Fact-finder's Report, relied upon by
the Panel, found that there was an impasse, that the instant case was
distinguishable from those concurrently before the Authority; that the
Union's proposal was negotiable, and that there was "good reason to
adopt the Union's proposal apart from the Authority's ruling in 2 FLRA
(No.) 31." Fact-finder Report at 8.
V. Remedy
To remedy the unfair labor practice conduct, the Authority will order
the Respondent Treasury to approve and comply with the Panel's Decision
and Order, and to give it retroactive effect. See Interpretation and
Guidance, 15 FLRA 564 (1984), affirmed sub nom. American Federation of
Government Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985).
Consistent with the Authority's decisions in Department of the Treasury,
Internal Revenue Service, Columbia District, Columbia, South Carolina,
22 FLRA No. 28 (1986) and Office of the General Counsel, National Labor
Relations Board, 22 FLRA No. 25 (1986), the Authority will further order
the Respondent Treasury to make whole the Charging Party for the
expenses it incurred in paying the travel and per diem expenses of those
bargaining unit employees who attended mid-term bargaining sessions
during the period in issue, which payments otherwise would have been
made by the Respondent IRS. Additionally, if there are any bargaining
unit employees who either did not receive payments to which they were
entitled or were not compensated fully for such expenses, the Respondent
Treasury also will be ordered to reimburse them for the travel and per
diem expenses they incurred upon their submission of properly documented
claims for such payments. In ordering such payments, the Authority
notes that by not complying with the Panel's decision, the Respondent
Treasury assumed a risk that if its position did not prevail, it would
be found to have committed an unfair labor practice and be subject to
such a remedy. /9/ The payments that are here being ordered must be
consistent with law and regulations, including the Federal Travel
Regulations.
VI. Conclusion
Based on the stipulated record, the analysis of the facts and the
precedent cited above, the Authority concludes that the Internal Revenue
Service did not violate the Statute as alleged in the complaint and
therefore those allegations are dismissed. However, the Authority
concludes that the Department of the Treasury's disapproval of a
Panel-imposed provision which was not in fact contrary to the Statute or
any other applicable law, rule, or regulation constituted a failure or
refusal to cooperate in impasse decisions in violation of section
7116(a)(1) and (6) of the Statute.
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, the Authority hereby orders
that the Department of the Treasury shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the Decision and Order of the
Federal Service Impasses Panel issued on December 24, 1980, in Case No.
80 FSIP 68 by failing and refusing to approve the provisions directed by
the Panel, which are not contrary to the Statute or other applicable
law, rule, or regulation.
(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 carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Withdraw and rescind its disapproval of the contractual
provisions contained in the Decision and Order of the Federal Service
Impasses Panel issued on December 24, 1980, in Case No. 80 FSIP 68,
which were to be included in the negotiated agreement of the Internal
Revenue Service and the National Treasury Employees Union and notify
these two parties of such in writing.
(b) Make the National Treasury Employees Union whole for the costs,
if any, incurred in paying travel expenses and per diem allowances to
all bargaining unit employees who submit or have submitted appropriate
claims for such payments under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, for which the employees otherwise would have been
reimbursed by the Internal Revenue Service.
(c) Pay travel expenses and per diem allowances consistent with law
and regulation, including the Federal Travel Regulations to all
bargaining unit employees who submit or have submitted appropriate
claims for such payments under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, to the extent that such expenses have not been
reimbursed by the National Treasury Employees Union.
(d) Provide bargaining unit employees official time while they were
engaged in representing the National Treasury Employees Union, the
employees, exclusive representative, in collective bargaining
negotiations, including necessary travel time as occurred during the
employees' regular work hours when they would otherwise have been in a
work or paid leave status, and make them whole for any annual leave they
may have utilized for this purpose.
(e) Post at all Internal Revenue Service facilities wherein there are
employees represented by the National Treasury Employees Union, a copy
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 Secretary of the Treasury, or his 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.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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 it.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
violation of section 7116(a)(1) and (8) of the Statute by the Department
of the Treasury and insofar as it alleges a violation of section
7116(a)(1), (5), (6) and (8) of the Statute by the Internal Revenue
Service be, and it hereby is, dismissed.
Issued, Washington, D.C. July 29, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7116(a)(1), (5), (6) and (8) of the Statute 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;
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
(6) to fail or refuse to cooperate in impasse procedures and
impasse decisions as required by this chapter;
* * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter(.)
(2) Section 7114(c) of the Statute provides:
Section 7114. Representation rights and duties
* * *
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(4) A local agreement subject to a national or or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
(3) Section 7106(a)(1) of the Statute provides:
Section 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency --
(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency(.)
(4) Section 7119(c)(5)(C) of the Statute provides:
Section 7119. Negotiation impasses; Federal Service Impasses
Panel
* * *
(c)(5)(C) Notice of any final action of the Panel under this
section shall be promptly served upon the parties, and the action
shall be binding on such parties during the term of the agreement,
unless the parties agree otherwise.
(5) Section 7119(c)(1) provides that the function of the Panel is "to
provide assistance in resolving negotiation impasses."
(6) The complaint fails to allege that Respondent Treasury failed and
refused to negotiate in good faith. This allegation is made only
against Respondent IRS.
(7) This issue, however, does not appear to be raised by the General
Counsel's complaint.
(8) In finding a violation of the Statute, we recognize that the
Respondent Treasury took what it believed to be a justified position
that the matter in issue could not legally be included in the collective
bargaining agreement. Our finding is to be compared with other recent
decisions which also found violations of the Statute, but which were
predicated on refusals to pay travel and per diem expenses pursuant to
contractually agreed-upon provisions for such payments. See, for
example, Office of the General Counsel, National Labor Relations Board,
22 FLRA No. 25 (1986) and Department of Defense Dependents Schools
System, 21 FLRA No. 125 (1986). In view of this finding, it is
unnecessary for the Authority to pass upon whether the Department of the
Treasury's conduct also violated section 7116(a)(5) and (8) of the
Statute since such a finding would provide no additional remedy. U.S.
Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16
FLRA 456 (1984); National Aeronautics and Space Administration,
Headquarters, Washington, D.C., 12 FLRA 480 (1983); Florida National
Guard, 9 FLRA 347 (1982), remanded on other grounds sub nom. Florida
Department of Military Affairs v. FLRA, No. 82-5901 (11th Cir. Oct. 27,
1983), supp. dec. on remand, 15 FLRA 896 (1984); State of California
National Guard, 8 FLRA 54 (1982); remanded on other grounds sub nom.
California National Guard v. FLRA, No. 82-7187 (9th Cir. Jan. 7, 1983),
supp. dec. on remand, 15 FLRA 479 (1984).
(9) If the Respondent Treasury's position ultimately had been
sustained, however, it would not have been found in violation of the
Statute. See Office of Personnel Management, Washington, D.C., 17 FLRA
302 (1985).
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 and refuse to comply with the Decision and Order of
the Federal Service Impasses Panel issued on December 24, 1980, in Case
No. 80 FSIP 68 by failing and refusing to approve the provisions
directed by the Panel, which are not contrary to the Statute or other
applicable law, rule, or regulation.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce IRS employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL withdraw and rescind our disapproval of the contractual
provisions contained in the Decision and Order of the Federal Service
Impasses Panel issued on December 24, 1980, in Case No. 80 FSIP 68 which
were to be included in the negotiated agreement of the Internal Revenue
Service and the National Treasury Employees Union and notify these two
parties of such in writing.
WE WILL make whole the National Treasury Employees Union for the
cost, if any, incurred in paying travel expenses and per diem allowances
to all bargaining unit employees who submit or have submitted
appropriate claims for such payments under the terms of the contract
provisions which the Federal Service Impasses Panel ordered incorporated
into the parties' agreement, for which the employees otherwise would
have been reimbursed by the Internal Revenue Service.
WE WILL pay travel expenses and per diem allowances consistent with
law and regulation, including the Federal Travel Regulations to all
bargaining unit employees who submit or have submitted appropriate
claims for such payments under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, to the extent that such expenses have not been
reimbursed by the National Treasury Employees Union.
WE WILL provide bargaining unit employees official time while they
were engaged in representing the National Treasury Employees Union, the
employees' exclusive representative, in collective bargaining
negotiations, including necessary travel time as occurred during the
employees' regular work hours when they would otherwise have been in a
work or paid leave status, and make them whole for any annual leave they
may have utilized for this purpose.
(Agency)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is 1111 18th Street, N.W., Room 700 (P.O. Box 33758), Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.