22:0287(28)CA - Treasury IRS Columbia District Columbia, SC and NTEU -- 1986 FLRAdec CA



[ v22 p287 ]
22:0287(28)CA
The decision of the Authority follows:


 22 FLRA No. 28
 
 DEPARTMENT OF THE TREASURY 
 INTERNAL REVENUE SERVICE 
 COLUMBIA DISTRICT 
 COLUMBIA, SOUTH CAROLINA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 4-CA-577
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case arose as a result of the Respondent's
 refusal to grant certain employees travel expenses and per diem
 allowances in connection with their representing the Union in
 negotiations for a local supplemental agreement, during time they
 otherwise would have been in a duty status.  This refusal is alleged to
 have violated section 7116(a)(1) and (8) of the Statute.  /1/ The
 Respondent also sought to reclaim money it had paid to other employees
 during an earlier round of the negotiations, and this is alleged to be
 an independent violation of section 7116(a)(1) of the Statute.  The
 issue is whether the employees were entitled to such travel and per diem
 expenses.
 
    The Administrative Law Judge found that the Activity had committed
 the violations as alleged.  The case is before the Authority now because
 the Respondent filed exceptions to the Judge's Decision.
 
                                II.  Facts
 
    The Internal Revenue Service and the National Treasury Employees
 Union are parties to a Multi-District Agreement which covers the
 Columbia, South Carolina District.  The undisputed evidence establishes
 that negotiations between the parties over a local supplemental
 agreement, as provided for by the Multi-District Agreement, took place
 during June and July of 1980.  Ground rules for the negotiations
 included an agreement that official time would be granted "in accordance
 with (section 7131(a)" of the Statute.  Following the negotiations,
 various members of the Union negotiating team submitted travel vouchers
 claiming travel and per diem expenses covering the period of the
 negotiations.  The Respondent paid travel and per diem expenses to three
 of the Union negotiators for the June negotiating sessions and later
 refused to pay other members of the team for sessions held in July.  The
 Union paid the travel and per diem expenses for two members of its
 negotiating team for the July sessions that Respondent refused to pay.
 After paying travel and per diem expenses to the Union negotiators, the
 Respondent notified them that they had been paid erroneously and that
 they should return the money.  The employees declined.  The refusal to
 reimburse certain employees for travel and per diem expenses, and the
 attempt to recover money which the Respondent asserts it paid in error
 to other employees, led to the complaint.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge concluded that the Respondent failed to comply with section
 7131(a) of the Statute, /2/ in violation of section 7116(a)(1) and (8)
 of the Statute, by refusing to reimburse travel expenses and per diem
 allowances to employees representing the Union in negotiations for the
 local supplemental agreement during the time they otherwise would have
 been in a duty status.  He also found that the Respondent's attempt to
 reclaim travel and per diem expenses paid to certain employees entitled
 to them constituted a violation of section 7116(a)(1) of the Statute.
 
                  IV.  Exceptions to the Judge's Decision
 
    The Respondent excepted to the Judge's reliance on decisions of the
 Authority which it contends are without support in the Civil Service
 Reform Act or its legislative history.  The Respondent also contends
 that it is without legal authority to expend appropriated funds for
 travel and per diem expenses and also noted that two members of the
 Union negotiating team paid by the Union for the July negotiating
 sessions would receive double reimbursement if paid by the Respondent.
 On that basis, Respondent argues that since no expenses were incurred by
 these two members no travel and per diem expenses were due.  Finally,
 the Respondent takes the position that official time does not include
 travel and per diem expenses and can only be negotiated for during
 mid-term bargaining under section 7131(d) of the Statute.
 
                               V.  Analysis
 
    The questions to be answered here are (A) Does the official time
 requirement of section 7131 include travel expenses and per diem
 allowances alleged to have been improperly denied in this case;  and (B)
 if not, what is the effect of the parties' agreement to grant official
 time "in accordance with (section) 7131(a)" which, at the time of that
 agreement and at the time of the denial of travel and per diem expenses,
 included travel and per diem according to existing case law?
 
    After the Judge issued his Decision in this case, the United States
 Court of Appeals for the District of Columbia Circiut ruled that the
 official time provisions of section 7131(a) of the Statute encompass the
 negotiation of local agreements supplementing master agreements where
 such local negotiations are authorized by the parties at the level of
 exclusive recognition.  American Federation of Government Employees,
 AFL-CIO v. FLRA, 750 F.2d 143 (D.C. Cir., 1984).  /3/ The Authority has
 found itself constrained to follow the court's legal interpretation of
 the language of section 7131(a) of the Statute, for the reasons set
 forth in the court's opinion, Department of the Air Force, Headquarters,
 Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 19
 FLRA No. 17 (1985), and continues to follow that interpretation in cases
 such as this one.  Thus, the employees negotiating on behalf of the
 Union were entitled to official time for the negotiations which occurred
 while they otherwise would be in a duty status.
 
    (A) Prior to the United States Supreme Court's decision in Bureau of
 Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), the
 Authority had interpreted "official time" under section 7131(a) of the
 Statute as encompassing travel expenses and per diem allowances.  See,
 for example, Interpretation and Guidance, 2 FLRA 264 (1979).  However,
 in BATF, the Supreme Court concluded that the section 7131(a) obligation
 to provide official time does not encompass travel expenses and per diem
 allowances.  Therefore, as they are not included within official time
 under section 7131, there is no entitlement to travel and per diem
 merely by virtue of a finding that official time is required because of
 negotiations for certain kinds of agreements. Thus, since there is no
 requirement to grant travel and per diem under section 7131(a), the
 refusal to do so cannot be a failure to comply with that section of the
 Statute.  Therefore, the section 7116(a)(8) allegation of the complaint
 must be dismissed.  However, in BATF the Court stated, "unions may
 presumably negotiate for such payments (of travel expenses and per diem
 allowances) in collective bargaining as they do in the private sector."
 464 U.S. at 107, n. 17.  The Authority has since determined that a
 union's proposal requiring the Agency to pay travel expenses incurred by
 employees using official time was not inconsistent with law or
 Government-wide regulation and therefore was within the duty to bargain.
  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.
 76-1198 (D.C. Cir. Mar. 27, 1986).  Thus, the remaining question is the
 effect of the parties' agreement to pay official time "in accordance
 with (section) 7131(a)."
 
    B. The parties agreed that employees representing the exclusive
 representative in negotiations for a local supplemental agreement would
 be granted official time "in accordance with (section) 7131(a)" of the
 Statute.  At the time that the parties entered into this agreement,
 official time under section 7131 had been interpreted by the Authority
 and was understood by the parties to encompass related travel and per
 diem expenses.  Moreover, the Respondent initially acted on that
 understanding when it paid some travel expenses in accordance with the
 parties' agreement.  Therefore, the Authority finds that, in effect, the
 agreement encompassed payment of travel and per diem expenses.
 
    There is no allegation in the complaint that the Respondent's refusal
 to pay travel and per diem to some employees, and its attempt to reclaim
 payments to others it determined had been "erroneously" paid, was a
 refusal to honor the negotiated agreement in violation of section
 7116(a)(5) of the Statute.  If there had been such an allegation, the
 Authority, noting particularly Respondent's statements that no payment
 for travel and per diem would be forthcoming, could have found that the
 Respondent's actions were contrary to the clearly understood meaning of
 the parties' agreement, and constituted a repudiation of the agreement
 amounting to a section 7116(a)(5) violation.  See Great Lakes Program
 Service Center, Social Security Administration, Department of Health and
 Human Services, Chicago, Illinois, 9 FLRA 499 (1982), American
 Federation of Government Employees, Local 1923, AFL-CIO, 20 FLRA No. 88
 (1985).  Nevertheless, the Authority does find that the Respondent's
 actions amount to a violation of section 7116(a)(1) of the Statute, as
 alleged, because the Respondent's failure and refusal to meet its
 obligation under an agreement with the exclusive representative of its
 employees to grant official time to employees representing the Union in
 supplemental negotiations "in accordance with" section 7131(a) of the
 Statute as it was understood by the parties at that time, which, as
 noted above, we find to include agreement to pay travel and per diem
 expenses, interfered with the employees' protected rights under section
 7102 of the Statute "to form, join, and assist a labor organization" and
 to receive the benefit of those provisions of an agreement negotiated on
 their behalf by the exclusive representative.  Adjutant General, State
 of Ohio, Ohio Air National Guard, Worthington, Ohio, 21 FLRA No. 124
 (1986);  Department of Defense, Dependents Schools System, 21 FLRA No.
 125 (1986);  Office of the General Counsel, National Labor Relations
 Board, 22 FLRA No. 25 (1986).
 
                                VI.  Remedy
 
    The Respondent paid travel and per diem expenses of Union
 representatives for the June 1980 negotiating sessions.  Thereafter, the
 Charging Party made such payments to unit employees who served as its
 negotiators when the Respondent refused to do so.  In our view, it will
 effectuate the purposes and policies of the Statute to issue an order
 requiring the Respondent to make whole the Charging Party for those
 travel and per diem expenses which it incurred by reimbursing the
 affected employees who should have received such payments directly from
 the Respondent.  Further, in the event that there are bargaining unit
 employees who either did not receive the payments to which they were
 entitled or were not compensated fully for such expenses, we shall order
 the Respondent to reimburse them for the travel and per diem expenses
 they incurred upon their submission of properly documented claims for
 such payments.  See Office of the General Counsel, National Labor
 Relations Board, 22 FLRA No. 25 (1986).
 
                             VII.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regualtions
 and section 7118 of the Statute, the Authority has reviewed the rulings
 made by the Judge at the hearing, finds that no prejudicial error was
 committed, and thus affirms the rulings. The Authority has considered
 the Judge's Decision and the entire record, including the parties'
 contentions, and adopts the Judge's findings, conclusions and
 recommended Order only to the extent consistent with this decision.
 
    In view of the above, the Authority concludes that the Respondent's
 refusal to pay travel expenses and per diem allowances to certain
 employees, and its attempt to reclaim such payments it had made to other
 employees, was not a failure or refusal to comply with the provisions of
 section 7131(a) of the Statute in violation of section 7116(a)(8).  That
 allegation shall be dismissed.  Such actions by the Respondent are found
 to have violated section 7116(a)(1) of the Statute, however, and an
 appropriate remedy shall be ordered.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 ordered that the Department of the Treasury, Internal Revenue Service,
 Columbia District, Columbia, South Carolina, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with, restraining, or coercing its employees in the
 exercise of their rights guaranteed in the Statute, by refusing to
 comply with and repudiating an agreement with the National Treasury
 Employees Union, the exclusive representative of its employees, to pay
 travel expenses and per diem allowances to Lavon Hair and Willmeta
 Dobbs, or attempting to reclaim such payments to Hair, Benjamin Smith,
 and John Thompson, or any other bargaining unit employees entitled to
 such payments when engaged in negotiations for a local supplemental
 agreement as contemplated by the parties' Multi-District Agreement
 during June and July, 1980.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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) Make the National Treasury Employees Union whole for the costs it
 incurred by paying the travel and per diem expenses of bargaining unit
 employees who acted as its negotiators in July 1980, for which the
 employees otherwise would have been entitled to reimbursement directly
 by the Respondent.
 
    (b) Pay travel and per diem expenses, consistent with law and
 regulation, including the Federal Travel Regulations, to all bargaining
 unit employees who submit or previously submitted appropriate claims for
 such payments for negotiations which occurred in July 1980, to the
 extent that such expenses have not been reimbursed by the National
 Treasury Employees Union.  /4/
 
    (c) Post at its various offices in the Columbia District in which
 unit employees are located, copies of the attached Notice to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the District Director, or a
 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.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, 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 this Order.
 
    IT IS FURTHER ORDERED that the portion of the complaint alleging a
 violation of section 7116(a)(8) of the Statute be, and it hereby is,
 dismissed.
 
    Issued, Washington, D.C. June 27, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, 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 interfere with, restrain, or coerce our employees in the
 exercise of their rights guaranteed in the Statute, by refusing to
 comply with and repudiating an agreement with the National Treasury
 Employees Union, the exclusive representative of our employees, to pay
 travel expenses and per diem allowances to Lavon Hair and Willmeta
 Dobbs, or attempting to reclaim such payments to Lavon Hair and Benjamin
 Smith, and John Thompson, or any other bargaining unit employees
 entitled to such payments when engaged in negotiations for a local
 supplemental agreement as contemplated by the parties' Multi-District
 Agreement during June and July, 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 make the National Treasury Employees Union whole for the
 costs it incurred by paying the travel and per diem expenses of
 bargaining unit employees who acted as its negotiators in July 1980, for
 which the employees otherwise would have been entitled to reimbursement
 directly by us.
 
    WE WILL pay travel and per diem expenses, consistent with law and
 regulation, including the Federal Travel Regulations, to all bargaining
 unit employees who submit or previously submitted appropriate claims for
 such payments for negotiations which occurred in July 1980, to the
 extent that such expenses have not been reimbursed by the National
 Treasury Employees Union.
                                       (Activity)
 
    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 any employees have any questions concerning this Notice or
 compliance with any of its provisions, they may communicate directly
 with the Regional Director, Region IV, Federal Labor Relations
 Authority, whose address is:  1371 Peachtree Steet NE, Suite 736,
 Atlanta, Georgia 30367, and whose telephone number is:  (404) 347-2324.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 4-CA-577
 
 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE 
 COLUMBIA DISTRICT COLUMBIA, SOUTH CAROLINA
    Respondent
 
                                   and
 
 NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
    Harry Mason, Esq. For Respondent
 
    William Harness, Esq. For Charging Party
 
    Mathilde L. Genovese, Esq. For General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et. seq., (hereinafter
 referred to as the Statute), and the Rules and Regulations of the
 Federal Labor Relations Authority, 5 C.F.R. Chapter XIV, Section 2410 et
 seq.
 
    Pursuant to a charge filed September 30, 1980 by the National
 Treasury Employees Union (hereinafter called the Union and NTEU) against
 Department of the Treasury, Internal Revenue Service, Columbia District,
 Columbia, South Carolina (hereinafter called IRS and Respondent) the
 General Counsel of the Federal Labor Relations Authority by the Regional
 Director for Region 4 issued a Complaint and Notice of Hearing on
 October 21, 1980 which was thereafter amended on October 27, 1980.  The
 Amended Complaint alleges that Respondent violated Section 7116(a)(1)
 and (8) of the Statute when it refused to reimburse employees who were
 representing the Union in negotiations for a Local Supplemental
 Agreement, for travel and per diem expenses incurred during the course
 of the negotiations which were held during the time the employees
 otherwise would be in a duty status.  The Amended Complaint further
 alleges that Respondent violated Section 7116(a)(1) of the Statute by
 seeking to reclaim employees' travel and/or per diem expenses incurred
 during negotiations for the local supplemental agreement.  Respondent
 filed an answer denying that it violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in
 Columbia, South Carolina.  All parties were represented by counsel and
 afforded full opportunity to be heard, adduce evidence, examine and
 cross-examine witnesses, and argue orally.  The parties were given an
 opportunity to file briefs, which have been fully considered.
 
    Based on the entire record herein, my observation of the witnesses
 and their demeanor, and from my evaluation of the evidence, I make the
 following:
 
                             Findings of Fact
 
    The Internal Revenue Service and the National Treasury Employees
 Union are parties to a collective bargaining agreement covering the
 period from January 31, 1977 through January 31, 1981.  The collective
 bargaining agreement is a Multi-District Agreement which includes
 Respondent's Columbia, South Carolina District.
 
    The uncontroverted evidence establishes that on June 25, 26, 27, 30
 and July 1, 2 and 3, 1980, the Union and Respondent met in Columbia,
 South Carolina for the purpose of negotiating a Local Supplemental
 Agreement to the Multi-District Agreement (herein MDA).  /5/
 Representing IRS at negotiation meetings were Stephen Giroux, Chief of
 Personnel, Leo Chaussie, Chief of Taxpayer Service, Hugh Wagner, Group
 Manager and Joe Orzichowski, Chief Negotiator.  All the management
 negotiators, except for Group Manager Wagner, worked in the Columbia,
 South Carolina office of Respondent.  Wagner worked in the Greenville,
 South Carolina office and travelled to Columbia, South Carolina for the
 negotiations.  Wagner received reimbursement from Respondent for his
 travel and per diem expenses incurred while engaged in these
 negotiations.  The Union negotiating team was composed, at various
 times, of Wayne Golden, Lavon Hair, John Thompson, Ben Smith, Donzetta
 Lindsay, Loreta Pinion and Willmeta Dobbs.  Hair worked in Respondent's
 Aiken, South Carolina office, Thompson worked in Respondent's Anderson,
 South Carolina office, Smith worked in Respondent's Charleston, South
 Carolina office and Dobbs worked in Respondent's Greenville, South
 Carolina office.  Hair, Thompson, Smith and Dobbs travelled from their
 respective home cities to Columbia, South Carolina to negotiate the
 Local Supplemental Agreement.  At each meeting NTEU and IRS had an equal
 number of negotiators.
 
    Negotiations for the Local Supplemental Agreement commenced at
 approximately 10:00 a.m. on June 25, 1980.  A ground rules agreement was
 reached by the parties at this initial negotiation session and all five
 articles were discussed.  Negotiations continued through July 3, 1980,
 when a Local Supplemental Agreement was executed.  /6/
 
    Lavon Hair, NTEU Chapter 55 President and Chief Negotiator for the
 Union attended all the Local Supplemental Agreement negotiating
 sessions.  Hair travelled by privately owned vehicle from Aiken, South
 Carolina to Columbia, South Carolina on June 25, 1980.  Hair left Aiken,
 South Carolina at approximately 8:00 a.m. and arrived in Columbia, South
 Carolina at approximately 9:35 a.m., travelling some 59 miles.  Hair
 remained in Columbia, South Carolina and engaged in negotiations on June
 25, 26, 27, 1980.  On June 27, 1980, Hair departed Columbia, South
 Carolina at approximately 3:40 p.m. and arrived in Aiken, South Carolina
 at approximately 5:15 p.m.  Thus, from June 25, 1980 through June 27,
 1980, Hair incurred both travel and per diem expenses in connection with
 the above-memtioned negotiations.  Hair again travelled to Columbia,
 South Carolina by privately owned vehicle on June 30, 1980.  He left
 Aiken, South Carolina at approximately 8:00 a.m. and arrived in
 Columbia, South Carolina at 9:35 a.m.  Hair engaged in the negotiations
 through the execution of the Local Supplemental Agreement on July 3,
 1980. At the conclusion of the negotiations, Hair left Columbia, South
 Carolina at approximately 3:40 p.m. and arrived in Aiken, South Carolina
 at approximately 5:40 p.m.  Hair again incurred travel and per diem
 expenses for the period of June 30, 1980 to July 3, 1980 while he was
 engaged in negotiations in Columbia, South Carolina or travelling to
 engage in such negotiations.
 
    Hair recorded the expenses he incurred while engaged in negotiations
 on his June 1980 and July 1980 travel vouchers.  On or about July 15th
 or 16th, 1980, Hair received a travel check for his June travel expenses
 including the expenses incurred as a result of participating in the
 negotiations in Columbia, South Carolina.  Hair did not receive
 reimbursement for the negotiating expenses incurred on July 1-3, 1980.
 On or about August 6, 1980, Hair received a memo from his Group Manager,
 D. F. Ramage advising that a disallowance of $104.55 was made from
 Hair's July, 1980 travel voucher due to the fact that Hair claimed
 mileage and per diem for District negotiations to which he was not
 entitled.  Hair later received a Travel Voucher Action Notice, covering
 the period of July 1 through July 31, 1980, advising that his July
 travel voucher was approved in the amount of $146.80 and that $104.55
 was disallowed, per a memo submitted by Hair's Group Manager.  Hair also
 received a letter from Stephen D. Giroux, Chief, Personnel Branch, which
 stated, in part, the following:
 
          "We regret that your June travel voucher was submitted and
       approved claiming travel and per diem for the June negotiations.
       Efforts are being made to correct your June travel voucher and
       reclaim the expense erroneously paid.  No future vouchers,
       including the July voucher, will be approved with these expenses
       claimed.  Your July voucher is being processed without the travel
       and per diem related to the negotiations in an effort to expedite
       the payment of the allowable items."
 
    Hair received a second Travel Voucher Action Notice covering the
 period of June 1 through June 30, 1980 advising his that $149.15 should
 be forwarded to Respondent as that amount was overpaid to him and that
 amount was not allowable inasmuch as the expenses claimed were for the
 Union negotiations.  Hair did not reimburse Respondent for the June
 negotiation expenses.
 
    Benjamin Smith, NTEU Chapter 55 Treasurer attended the Local
 Supplemental Agreement negotiation sessions of June 25, 26 and 27, 1980.
  Smith travelled from Mount Pleasant, South Carolina to Columbia, South
 Carolina on June 24, 1980.  Smith departed Mt. Pleasant, South Carolina
 at approximately 5:00 p.m. and arrived in Columbia, South Carolina at
 approximately 7:30 p.m. ITR 35) Smith participated in the negotiation
 sessions which began at approximately 10:00 a.m. on June 25, 1981.
 Smith remained in Columbia, South Carolina and engaged in negotiations
 held on June 26 and 27, 1980.  At the conclusion of the negotiation
 session on June 27, 1980, at approximately 3:00 p.m., Smith left
 Columbia, South Carolina for his residence.  Smith arrived home shortly
 after 6:00 p.m.  While engaged in the negotiation sessions, Smith
 incurred traved and per diem expenses.  Smith recorded these expenses on
 his June 1980 travel voucher.  /7/ Smith submitted his June, 1980 travel
 voucher and received reimbursement sometime in the middle of July, 1980.
  During mid-August, 1980, Smith's Group Manager, John Stribling, told
 Smith that his June travel expenses had been paid in error.  Stribling
 gave Smith a letter from Giroux, Chief of Personnel, which informed him
 that "efforts are being made to correct your June travel voucher and
 reclaim the expenses claimed." In early September, 1980 Smith received a
 Travel Voucher Action Notice for the period of June 1, 1980 through June
 30, 1980, advising that a post audit of his voucher had resulted in an
 overpayment of $135.90 which consisted of expenses incurred during the
 Local Supplemental Agreement negotiations.  Respondent requested Smith
 to reimburse the amount overpaid.  Smith has not repaid the amount
 requested.
 
    John Thompson, NTEU National Vice President for the first district,
 participated in the negotiation session on June 30, 1980.  Thompson
 departed Taylor, South Carolina on June 30, 1980 at 7:00 and arrived in
 Columbia, South Carolina sometime after 9:00 a.m.  Thompson participated
 in the June 30, 1980 negotiation session until the close of the
 negotiations at about 4:45 p.m. Thompson departed Columbia, South
 Carolina sometime after 5:00 p.m. and the average driving time from
 Columbia, South Carolina to Thompson's home was 2 hours.  As a result of
 engaging in negotiations, Thompson incurred travel expenses, which he
 reported on his June, 1980 travel voucher.  Thompson received payment
 for his June travel expenses sometime around the 15th of July, 1980.  In
 approximately mid-August, 1980, Thompson received a letter from Giroux,
 Chief, Personnel Branch, advising that the June negotiation expenses
 were erroneously paid and efforts were being made to reclaim the
 expenses.  In the beginning of September, 1980, Thompson received a
 Travel Voucher Action Notice covering the period June 1, 1980 through
 June 30, 1980 advising that $39.40 was claimed for Union negotiations
 which was not allowable.  The Travel Voucher Action Notice requested
 that Thompson forward the stated amount to Respondent.  The Travel
 Voucher Action Notice was attached to a memo signed by Donald L.
 Breihan, District Director, Columbia District stating that normal
 procedures should be followed in reclaiming travel and per diem expenses
 from John Thompson.  Thompson has not paid the amount requested.
 
    Willmeta Dobbs, Executive Vice President of NTEU Chapter 55, attended
 the negotiation sessions of July 1 -- July 3, 1980.  Dobbs departed
 Taylor, South Carolina at approximately 7:15 a.m. and arrived in
 Columbia, South Carolina at approximately 9:45 a.m.  Dobbs remained in
 Columbia, South Carolina, engaged in negotiations, until July 3, 1980
 when she departed Columbia, South Carolina at approximately 2:00 p.m.
 and arrived home at approximately 4:30 p.m.  While engaged in
 negotiations in Columbia, South Carolina, Dobbs incurred travel and per
 diem expenses which she recorded on her July, 1980 travel voucher.
 Dobb's July travel voucher was not processed because Dobb's Group
 Manager, Al Howard, informed her that the negotiation expenses were not
 covered.  Howard asked Dobbs to submit another travel voucher, deleting
 the negotiation expenses.  This second travel voucher was prepared,
 submitted and paid by Respondent.
 
    All the Union negotiators participated in the negotiations and
 provided input on the articles under discussion.
 
    At all times material herein, the regular working hours of
 Respondent's employees, including the above-mentioned employees engaged
 in negotiations, were 8:00 a.m. to 4:45 p.m.  Both Dobbs and Hair were
 reimbursed by NTEU for the expenses they incurred in connection with the
 July negotiating sessions.
 
                        Discussion and Conclusions
 
                 Section 7131(a) of the Statute provides:
 
          "(a) 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 proceeding, 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 . . . "
 
    The Federal Labor Relations Authority (FLRA) has held that Section
 7131(a) requires agencies to reimburse union negotiators for their
 travel and per diem expenses incurred due to their participation in
 negotiations.  Interpretation and Guidance, 2 FLRA No. 31 (1979).  FLRA
 held further that Section 7131(a) provides that such a union negotiator
 is entitled to travel and per diem expenses when engaged in mid-term
 negotiations and that failure to pay it violates Section 7116(a)(1) and
 (8) of the Statute.  Bureau of Alcohol, Tobacco and Firearms, Western
 Region, Department of the Treasury, San Francisco, California, 4 FLRA
 No. 40 (1980).  IRS's contention that FLRA was without authority to
 issue its decision in Interpretations and Guidance, supra is rejected as
 is the argument that IRS can not be required to expend appropriated
 funds for the payment of travel and per diem expenses of Union
 negotiators.  Bureau of Alcohol Tobacco and Firearms, Western Region,
 Department of the Treasury, San Francisco, California, supra.
 
    Further IRS's contention that because the Union negotiators were
 reimbursed for their travel and per diem expenses IRS is not obliged to
 comply with Section 7131 of the Statute is rejected.  Such an
 interpretation of the Statute would permit IRS to benefit because it
 violated the Statute and NTEU attempted to mitigate the harm to the
 employees.
 
       Accordingly it is concluded that IRS violated Section
 
 7116(a)(1) and (8) of the Statute by its failure to reimburse employees
 Hair and Dobbs for their travel and per diem expenses incurred while
 they were engaged as members of NTEU's bargaining team in Columbia,
 South Carolina.
 
    Further it is concluded that IRS' attempts, though unsuccessful, to
 reclaim the travel and per diem expenses that were paid to Union
 negotiator-employees Hair, Smith and Thompson for time spent
 representing NTEU at negotiations, interferres with, restrains and
 coerces these employees in their rights as set forth in Section 7102 of
 the Statute and therefore violates Section 7116(a)(1) of the Statute.
 
    Having found and concluded that IRS violated Sections 7116(a)(1) and
 (8) of the Statute, I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's rules and regulations and section 7118 of the Statute, the
 Authority hereby orders that the Department of Treasury, Internal
 Revenue Service, Columbia District, Columbia, South Carolina shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to provide and pay necessary travel and per
 diem expenses to Lavon Hair, Willmeta Dobbs, or any Agency employee, for
 the time said employees engaged in representing the National Treasury
 Employees Union, the employees' exclusive representative, during
 Union-Agency negotiations of a collective bargaining agreement.
 
    (b) Attempting to reclaim or recover travel and per diem expenses
 paid to Lavon Hair, Benjamin Smith, John Thompson or any Agency
 employee, for the time said employees engaged in representing the
 National Treasury Employees Union, the employees' exclusive
 representative, during Union-Agency negotiations of a collective
 bargaining agreement.
 
    (c) 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 policies of the Statute:
 
    (a) Provide Union representatives Lavon Hair and Willmeta Dobbs
 ordinary travel and per diem expenses for July 1 through July 3, 1980.
 
    (b) Post at its various offices in the Columbia 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 4, 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 notice to employees are customarily posted.  Reasonable
 steps shall be taken to insure that said notices are not altered,
 defaced, or covered by an 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.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  June 10, 1981
    Washington, D.C.
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7116(a)(1) and (8) 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;
 
                . . . . . . .
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter(.)
 
    (2) Section 7131(a) of the Statute provides:
 
                       Section 7131.  Official time
 
          (a) 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 proceeding, 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.
 
    (3) This decision reversed the Authority's position as set forth in
 Interpretation and Guidance, 7 FLRA 682 (1982).
 
    (4) In finding travel expenses and per diem allowances negotiable,
 the Authority indicated that the travel itself would have to meet the
 requirements of law and regulation, including Federal Travel
 Regulations.  National Treasury Employees Union and Department of the
 Treasury, 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. March 27, 1986).  There is no contention, nor does the record
 disclose evidence, that the travel and per diem expense claims would be
 inconsistent with Federal law or regulation.
 
    (5) The Local Supplemental Agreement concerned five articles of the
 MDA:  equal employment opportunity, the labor management relations
 committee, bulletin boards, details into taxpayer service and rotational
 assignments into specialty groups.
 
    (6) The Negotiations were held on the following dateds for the
 specified periods:
 
    6/25/80 10:00 a.m. -- 4:45 p.m.
 
    6/26/80 8:00 a.m. -- 4:45 p.m.
 
    6/27/80 8:00 a.m. -- 3:30 p.m.
 
    6/30/80 10:00 a.m. -- 4:45 p.m.
 
    7/01/80 10:00 a.m. -- 4:45 p.m.
 
    7/02/80 8:00 a.m. -- 4:45 p.m.
 
    7/03/80 8:00 a.m. -- 2:15 p.m.
 
    (7) Smith did not claim per diem expenses for June 24, 1980, as he
 travelled for his personal convenience.
 
 
 
 
 
 
                                 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 or refuse to provide and pay travel and per diem
 expenses to Lavon Hair, Willmeta Dobbs, or any Agency employee, for the
 time said employees engaged in representing the National Treasury
 Employees Union, the employees' exclusive representative, during
 Union-Agency negotiations.
 
    WE WILL NOT attempt to reclaim or recover travel and per diem
 expenses paid to Lavon Hair, Benjamin Smith, John Thompson or any Agency
 employee, for the time said employees engaged in representing the
 National Treasury Employees Union, the employees' exclusive
 representative, during Union-Agency negotiations of a collective
 bargaining agreement.
 
    WE WILL NOT in any like or related matter, interfere with, restrain
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL provide Union representatives Lavon Hair and Willmeta Dobbs
 their ordinary travel and per diem expenses for July 1 through July 3,
 1980.
                                       (Agency or Activity)
 
    Dated:
                                       By:  (Signature)
 
    This Notice must remain post