32:0057(7)CA - - IRS and NTEU - - 1988 FLRAdec CA - - v32 p57



[ v32 p57 ]
32:0057(7)CA
The decision of the Authority follows:


32 FLRA No. 7

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNAL REVENUE SERVICE
Respondent

and 

NATIONAL TREASURY EMPLOYEES UNION
Charging Party

Case No. 3-CA-80006

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 for travel and per diem expenses of Union employee representatives. For the reasons discussed below, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain on the Union's proposal.

II. Background

The Union is the exclusive representative of a unit of the Respondent's professional and non-professional employees. By letter dated June 12, 1987, Respondent requested that the Union submit proposals in connection with its implementation of a new post of duty. On June 19 and September 3, 1987, the Union submitted proposals to Respondent, including one which provides that Respondent will pay travel and per diem expenses for certain representational duties of two Union employee representatives. By letters dated September 10 and 14, 1987, Respondent declared the Union proposal concerning travel and per diem expenses to be nonnegotiable.

III. Positions of the Parties

The Respondent agrees that the language and meaning of the proposal in this case are similar to the proposal found to be negotiable by the Authority in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986) (Customs), enforced sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988), petition for rehearing en banc denied, No. 86-1198 (D.C. Cir., Apr. 13, 1988).

The Respondent acknowledges that the Authority's decision was affirmed by the D.C. Circuit Court of Appeals. However, the Respondent requests that the present case be held in abeyance pending the resolution of the Department of Justice's petition for rehearing en banc by the D.C. Circuit Court of Appeals in Customs.

In the alternative, the Respondent contends that the Union's proposal is nonnegotiable because it: (1) 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; (2) does not affect conditions of employment within the meaning of section 7103(a)(14) of the Statute; and (3) interferes with the Respondent's rights to determine its mission and budget under section 7106(a)(1) of the Statute.

The General Counsel and the Charging Party contend that the decisions in Customs and National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 21 FLRA 1101 (1986), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 86-1373 (D.C. Cir. June 25, 1986), (IRS) are dispositive in this case. Accordingly, they argue that the Respondent violated section 7116(a)(1) and (5) of the Statute by declaring the Union's proposal to be nonnegotiable in light of these decisions.

IV. Analysis and Conclusion

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. Internal Revenue Service, 28 FLRA 14 (1987), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 87-1456 (D.C. Cir. Sept. 1, 1987); 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 Customs, the D.C. Circuit Court of Appeals affirmed the Authority's finding that a proposal requiring the employer to pay the travel expenses incurred by employees while using official time available under the parties' collective bargaining agreement was within the duty to bargain. The court found that the proposal concerned a condition of employment which was within the Agency's administrative discretion and was not inconsistent with law or Government-wide regulation.

In this case, the Respondent declared nonnegotiable a proposal which provided for travel and per diem expenses for certain representational duties of two Union employee representatives. The Respondent acknowledges that the proposal declared to be nonnegotiable is similar in language and meaning to the proposal which the Authority found negotiable in Customs. We find that the proposal in Customs and the proposal in the present case are substantially identical. Therefore, we conclude that the Authority's decisions in Customs and IRS are dispositive of this case. The Respondent refused to negotiate regarding a negotiable proposal which is substantially identical to a proposal previously found negotiable by the Authority. Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain on the Union's proposal.

Further, we note that the Department of Justice's petition for rehearing en banc in Customs has been denied. Accordingly, the Respondent's request that the present case be held in abeyance pending resolution of the petition for rehearing is now moot.

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.

(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.,

__________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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:

WE WILL NOT declare nonnegotiable any 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.

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 Federal Service Labor-Management Relations Statute.

WE WILL upon request of the National Treasury Employees Union negotiate regarding the proposal providing for the payment of the travel and per diem expenses of employee negotiators involved in mid-term bargaining.

(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 employees have any questions concerning this Notice or compliance with its provisions, th