28:0014(4)CA - IRS and NTEU -- 1987 FLRAdec CA



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28:0014(4)CA
The decision of the Authority follows:


28 FLRA No. 4

INTERNAL REVENUE SERVICE

                   Respondent

         and

NATIONAL TREASURY EMPLOYEES UNION

                   Charging Party

Case No. 3-CA-70071

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 upon a stipulation entered into by the Respondent, the Charging Party (the Union) and the General Counsel. The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by declaring nonnegotiable a Union proposal for payment by the Respondent of travel and per diem expenses of employee negotiators.

II. Background

The Union is the exclusive representative of a unit of the Respondent's professional and non-professional employees. By letter dated September 23, 1986, the Union requested that the Respondent submit a written declaration concerning the negotiability of a Union proposal for the payment of travel and per diem expenses for employee negotiators involved in mid-term bargaining. By letter dated October 3, 1986, the Respondent declared the Union's proposal nonnegotiable.

III. Positions of the Parties

The Respondent first requests that this case be held in abeyance until the United States Court of Appeals for the District of Columbia Circuit rules on the negotiability of a proposal for the payment of travel expenses for employees on official time in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 [PAGE] (1986) (Customs Service), 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). The Respondent acknowledges that the language and meaning of the proposal in dispute in this case is identical to the language and meaning of a proposal the Union previously submitted, which the Authority held was negotiable in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 21 FLRA No. 126 (1986) (IRS), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, -No. 86-1373 (D.C. Cir. June 25, 1986). However, the Respondent argues that the Authority's decision in the IRS case was based on the rationale in Customs Service, which is before the D.C. Circuit. The Respondent maintains that resolution of the issues in this case should be stayed until completion of review by the court in Customs Service.

In the alternative, the Respondent contends that the Union's proposal is nonnegotiable because it is inconsistent with the Travel Expense Act, 5 U.S.C. 5701-5709, and the Federal Travel Regulations, 41 C.F.R. Part 101-7; does not affect conditions of employment within the meaning of section 7103(a)(14) of the Statute; and interferes with the Respondent's reserved rights to determine its mission and budget under section 7106 (a) (1) of the Statute.

The General Counsel contends that the Authority's decision in IRS is dispositive of the issue in this case. The General Counsel argues that the Respondent violated section 7116(a)(1) and (5) of the Statute by declaring the Union's proposal nonnegotiable.

IV. Analysis and Conclusion

It is well established that an agency violates section 7116(a)(1) and (5) of the Statute if it refuses to bargain over a proposal that is substantially identical to a proposal the Authority has previously determined to be negotiable under the Statute. Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), affirmed sub nom. ' Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983).

In this case, as the Respondent acknowledges, the proposal the Respondent declared to be nonnegotiable is identical in language and meaning to the proposal the Authority found negotiable in IRS. Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the [ v28 p2 ] Statute by refusing to bargain on the union's proposal. Further, we find that the Respondent has failed to provide any persuasive reason for holding this case in abeyance since Authority precedent clearly establishes that the proposal involved is negotiable. The Respondent's request is there-fore denied.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Internal Revenue Service shall:

1. Cease and desist from:

(a) Declaring nonnegotiable proposals made in the course of negotiations by the National Treasury Employees Union, which are identical to proposals previously determined to be negotiable by the Federal Labor Relations Authority.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations 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) Upon request of the National Treasury Employees Union, negotiate concerning NTEU's proposal that would require the Respondent to pay the travel and per diem expenses of employee negotiators involved in mid-term bargaining.

(b) Post at the facilities of the Internal Revenue service, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner of the Internal Revenue Service 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 such notices are not altered, defaced, or covered by any other material. [ v28 p3 ] (c) 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 herewith.

Issued, Washington, D.C., July 16, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p4 ]

               NOTICE TO ALL EMPLOYEES
                  AS ORDERED BY THE
          FEDERAL LABOR RELATIONS AUTHORITY
          AND TO EFFECTUATE THE POLICIES OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE NOTIFY OUR EMPLOYEES THAT: