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, ARGUEN