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 (Authority decision, June 30, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An IRS Cincinnati District union representative used leave and sought travel expenses for representational duties. A judge found that the agency denied official time and expenses required by the statute. The Authority adopted the judge’s findings and ordered the IRS to make the representative whole, pay appropriate travel and per diem, and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7131.
• Outcome: Judge’s violation finding and remedy adopted.
• Key point: Representational duties covered by the statute carried official time and appropriate travel expenses.

Full text (FLRA public release)

[ 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.