09:0333(40)CA - Treasury, IRS, Jacksonville District and NTEU; Treasury, IRS, Jacksonville and Atlanta Districts and NTEU -- 1982 FLRAdec CA



[ v09 p333 ]
09:0333(40)CA
The decision of the Authority follows:


 9 FLRA No. 40
 
 DEPARTMENT OF THE TREASURY
 INTERNAL REVENUE SERVICE
 JACKSONVILLE DISTRICT
 Respondent
 
                                            Case No. 4-CA-498
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
 
 DEPARTMENT OF THE TREASURY
 INTERNAL REVENUE SERVICE
 JACKSONVILLE AND ATLANTA DISTRICTS
 Respondent
 
                                            Case No. 4-CA-561
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTION.  THE JUDGE FOUND THAT THE RESPONDENT HAD NOT ENGAGED
 IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED
 DISMISSAL OF THE COMPLAINT WITH RESPECT TO THEM.  THEREAFTER, THE
 RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION, AND THE CHARGING
 PARTY FILED A BRIEF IN RESPONSE THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) 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 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
    THE JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND
 (8) OF THE STATUTE BY VIRTUE OF ITS ACTIONS IN REFUSING TO PROVIDE
 NATIONAL TREASURY EMPLOYEES UNION (NTEU) REPRESENTATIVES CALVIN
 BARNLUND, WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME AND/OR PER DIEM
 AND TRAVEL EXPENSES AS APPROPRIATE IN CONNECTION WITH THEIR
 PARTICIPATION IN COLLECTIVE BARGAINING NEGOTIATIONS HELD ON MAY 15 AND
 JUNE 17, 1980.  HE FURTHER FOUND THAT, CONTRARY TO THE ALLEGATIONS OF
 THE COMPLAINT IN CASE NO. 4-CA-561, AND IN THE ABSENCE OF ANY COGENT
 ARGUMENT IN SUPPORT THEREOF, THE RESPONDENT'S ACTIVITIES DID NOT ALSO
 CONSTITUTE A SEPARATE VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE.
 ACCORDINGLY, HE RECOMMENDED THAT THIS ALLEGATION OF THE COMPLAIN BE
 DISMISSED.
 
    BASED ON THE AUTHORITY'S INTERPRETATION AND GUIDANCE, 2 FLRA
 264(1979) AND BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
 DEPARTMENT OF THE TREASURY, SAN FRANCISCO CALIFORNIA, 4 FLRA NO.
 40(1980), ENFORCE, 672 F.2D 732(9TH CIR. 1982), THE AUTHORITY CONCLUDES,
 IN AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) OF THE STATUTE AS ALLEGED IN THE COMPLAINT.  THE
 AUTHORITY FURTHER ADOPTS THE JUDGE'S CONCLUSION AND RATIONALE THAT THE
 RECORD FAILS TO SUPPORT A FINDING THAT THE RESPONDENT'S CONDUCT ALSO
 VIOLATED SECTION 7116(A)(5) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS
 CASE.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE RESPONDENT DEPARTMENT OF TREASURY,
 INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE CALVIN BARNLUND, WAYNE PIERCE AND
 ORVILLE GUINN, OR ANY OTHER BARGAINING UNIT EMPLOYEES, WHILE ENGAGED IN
 REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE EMPLOYEES'
 EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATION OF A COLLECTIVE BARGAINING
 AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY
 TRAVEL TIME DURING THE EMPLOYEES' REGULAR WORK HOURS AND WHEN THE
 EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE STATUS.  IN
 ADDITION, NECESSARY TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID
 BY THE ACTIVITY.
 
    (B) IN ANY LIKE OR RELATED MANNER 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 REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR THE
 PERFORMANCE OF HIS COLLECTIVE BARGAINING DUTIES ON MAY 14 AND 15, 1980,
 AND MAKE HIM WHOLE FOR ANY ANNUAL LEAVE HE MAY HAVE UTILIZED ON SUCH
 DATES, AND PAY TO WAYNE PIERCE AND UNION REPRESENTATIVES CALVIN BARNLUND
 AND ORVILLE GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE
 ENGAGED IN OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED TO.
 
    (B) POST AT ITS VARIOUS OFFICES IN THE ATLANTA AND JACKSONVILLE
 DISTRICTS WHEREIN UNIT EMPLOYEES ARE LOCATED, 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
 DIRECTOR OF THE JACKSONVILLE AND ATLANTA DISTRICTS, RESPECTIVELY, AND
 SHALL BE POSTED AND MAINTAINED 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) 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 HEREWITH.
 
    IT IS FURTHER ORDERED THAT THE SECTION 7116(A)(5) ALLEGATION OF THE
 CONSOLIDATED COMPLAINT BE, AND IT HEREBY IS, DISMISSED.
 
    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 NOT FAIL OR REFUSE TO PROVIDE TO CALVIN BARNLUND, WAYNE
 PIERCE AND ORVILLE GUINN OR ANY OTHER BARGAINING UNIT EMPLOYEES, WHILE
 ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION, THE
 EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING NEGOTIATIONS OF A COLLECTIVE
 BARGAINING AGREEMENT, OFFICIAL TIME FOR SUCH PARTICIPATION INCLUDING
 NECESSARY TRAVEL TIME AS OCCURS DURING THE EMPLOYEES' REGULAR WORK HOURS
 AND WHEN THE EMPLOYEES WOULD OTHERWISE BE IN A WORK OR PAID LEAVE
 STATUS.  IN ADDITION, WE WILL NOT FAIL OR REFUSE TO PROVIDE NECESSARY
 TRANSPORTATION AND PER DIEM EXPENSES TO BARGAINING UNIT EMPLOYEES
 ATTRIBUTABLE TO SUCH PARTICIPATION.
 
    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 PROVIDE UNION REPRESENTATIVE WAYNE PIERCE OFFICIAL TIME FOR
 THE PERFORMANCE OF HIS COLLECTIVE BARGAINING DUTIES ON MAY 14 AND 15
 1980, AND MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE MAY HAVE UTILIZED ON
 THE ABOVE DATES, AND PAY TO CALVIN BARNLUND, WAYNE PIERCE AND ORVILLE
 GUINN WHATEVER TRAVEL AND PER DIEM EXPENSES EMPLOYEES ENGAGED IN
 OFFICIAL AGENCY OR ACTIVITY BUSINESS WOULD BE ENTITLED TO.
 
                           (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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION IV, WHOSE
 ADDRESS IS:  1776 PEACHTREE STREET, N.W., SUITE 501, NORTH WING,
 ATLANTA, GA. 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ROBERT FINER, ESQUIRE
    HARRY G. MASON, ESQUIRE
                     FOR THE RESPONDENT
 
    LINDA J. NORWOOD, ESQUIRE
    BRENDA S. GREEN, ESQUIRE
                     FOR THE GENERAL COUNSEL
 
    JOYCE F. GLUCKMAN
                    FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
                    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER,
 FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.  CHAPTER XIV,
 PART 2411, ET SEQ.
 
    PURSUANT TO CHARGES FILED ON JULY 2, 1980 AND AUGUST 22, 1980, IN
 CASE NOS. 4-CA-498 AND 4-CA-561, RESPECTIVELY, BY THE NATIONAL TREASURY
 EMPLOYEES UNION, (HEREINAFTER CALLED THE NTEU OR UNION), A CONSOLIDATED
 COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON NOVEMBER 19, 1980, BY THE
 ACTING REGIONAL DIRECTOR FOR REGION IV, ATLANTA, GEORGIA.  THE
 CONSOLIDATED COMPLAINT ALLEGES IN SUBSTANCE, THAT THE DEPARTMENT OF THE
 TREASURY, INTERNAL REVENUE SERVICE, JACKSONVILLE AND ATLANTA DISTRICTS,
 (HEREINAFTER CALLED THE RESPONDENT OR IRS), VIOLATED SECTIONS
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS
 ACTIONS IN REFUSING TO GRANT OFFICIAL TIME AND/OR PAY TRAVEL AND PER
 DIEM EXPENSES TO THREE EMPLOYEES WHO PARTICIPATED AS NTEU
 REPRESENTATIVES IN COLLECTIVE BARGAINING NEGOTIATIONS WITH VARIOUS
 REPRESENTATIVES OF THE RESPONDENT.
 
    A HEARING IN THE CAPTIONED MATTER WAS HELD ON DECEMBER 17, 1980, IN
 JACKSONVILLE, FLORIDA.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES INVOLVED HEREIN.  THE PARTIES SUBMITTED
 POST-HEARING BRIEFS ON JANUARY 30, 1981, WHICH HAVE BEEN DULY
 CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, /1/ INCLUDING MY OBSERVATION OF
 THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                              FINDING OF FACT
 
    THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
 PROFESSIONAL AND NON-PROFESSIONAL EMPLOYEES WORKING IN THE IRS'S
 JACKSONVILLE, FLORIDA AND ATLANTA, GEORGIA, DISTRICT OFFICES.
 
    ON APRIL 17, 1980, THE REGIONAL DIRECTOR FOR REGION IV, FEDERAL LABOR
 RELATIONS AUTHORITY, APPROVED A SETTLEMENT AGREEMENT BETWEEN THE NTEU
 AND THE IRS JACKSONVILLE, FLORIDA, DISTRICT IN A PRIOR UNFAIR LABOR
 PRACTICE PROCEEDING.  IN THE SETTLEMENT AGREEMENT THE IRS AGREED TO
 BARGAIN WITH THE NTEU WITH RESPECT TO THE IMPACT AND IMPLEMENTATION OF
 ITS DECISION TO ESTABLISH SPECIAL GROUPS TO PROCESS TAX SHELTER CASES AT
 IRS'S MIAMI, FORT LAUDERDALE AND NORTH DADE, FLORIDA LOCATIONS.
 PURSUANT TO THE AFOREMENTIONED SETTLEMENT AGREEMENT, THE PARTIES
 SUBSEQUENTLY AGREED TO MEET ON MAY 15, 1980, IN JACKSONVILLE, FLORIDA,
 FOR PURPOSES OF NEGOTIATING THE IMPACT AND IMPLEMENTATION OF THE SPECIAL
 TAX SHELTER GROUPS.
 
    MR. TIMOTHY WELSH, THE NTEU ATTORNEY WHO WAS IN CHARGE OF THE
 SCHEDULED NEGOTIATIONS FOR THE NTEU, REQUESTED MR. CALVIN BARNLUND, AN
 IRS EMPLOYEE STATIONED IN ORLANDO, FLORIDA, AND MR. WAYNE PIERCE, AN IRS
 EMPLOYEE STATIONED IN MIAMI, FLORIDA, TO SERVE AS MEMBERS OF THE NTEU
 NEGOTIATING TEAM.
 
    ON MAY 14, 1980, MR. BARNLUND LEFT ORLANDO, FLORIDA, AT ABOUT 7:45
 A.M. AND DROVE HIS CAR TO JACKSONVILLE, FLORIDA.  AFTER ARRIVING AT
 JACKSONVILLE, FLORIDA, ABOUT 10:45 A.M., MR. BARNLUND ASSISTED THE IRS
 REGIONAL COUNSEL IN THE PREPARATION OF A TAX COURT CASE FOR THE
 REMAINDER OF THE DAY.  MR. BARNLUND SPENT THE EVENING AT THE TRAVEL
 LODGE MOTEL.
 
    ON MAY 15, 1980, MR. BARNLUND ATTENDED AND ACTIVELY PARTICIPATED IN
 THE SCHEDULED BARGAINING NEGOTIATIONS AS A MEMBER OF THE NTEU'S
 NEGOTIATING TEAM.  THE NEGOTIATIONS BEGAN AT 8:30 A.M. AND LASTED UNTIL
 4:00 P.M. WITH A BREAK FOR LUNCH.  MR. BARNLUND INCURRED BREAKFAST,
 LUNCH AND DINNER EXPENSES ON MAY 15, 1980.  ALTHOUGH NO FINAL AGREEMENT
 WAS REACHED ON MAY 15, IT WAS MUTUALLY AGREED THAT THE NEGOTIATING
 MEETING SHOULD END THAT DAY.
 
    MR. BARNLUND SPENT THE EVENING AGAIN AT THE TRAVEL LODGE MOTEL.  THE
 NEXT MORNING, MAY 16, 1980, MR. BARNLUND AGAIN ASSISTED THE IRS REGIONAL
 COUNSEL IN THE PREPARATION OF A TAX COURT CASE.  MR. BARNLUND LEFT
 JACKSONVILLE LATER THAT DAY AROUND 1:35 P.M.  AND ARRIVED AT HIS HOME IN
 ORLANDO, FLORIDA AROUND 5:00 P.M.
 
    ON OR ABOUT MAY 30, 1980, MR. BARNLUND SUBMITTED A TRAVEL VOUCHER FOR
 HIS TRAVEL EXPENSES INCURRED DURING THE MONTH OF MAY 1980.
 SUBSEQUENTLY, THE IRS REJECTED THAT PORTION OF THE VOUCHER WHICH CLAIMED
 EXPENSES FOR MAY 15, 1980, THE DAY MR. BARNLUND PARTICIPATED IN THE
 COLLECTIVE BARGAINING NEGOTIATIONS AS A MEMBER OF THE NTEU'S NEGOTIATING
 TEAM.  MR. JACK FRIZZEL, AN IRS SUPERVISOR, REJECTED THE MAY 15, 1980,
 PORTION OF THE CLAIM BECAUSE THE EXPENSES WERE " . . . NOT AUTHORIZED
 UNDER THE CONTRACT." MR. BARNLUND HAS NEVER BEEN REIMBURSED BY THE IRS
 FOR THE EXPENSES INCURRED ON MAY 15, 1980.  THE NTEU, HOWEVER, DID
 SUBSEQUENTLY REIMBURSE MR. BARNLUND.
 
    MR. PIERCE TRAVELED BY AIRPLANE ON THE AFTERNOON OF MAY 14, 1980,
 FROM MIAMI, FLORIDA, TO JACKSONVILLE, FLORIDA, TO PARTICIPATE IN THE MAY
 15, 1980, NEGOTIATIONS.  AFTER DRIVING AND PARKING HIS CAR AT THE
 AIRPORT, MR. PIERCE PURCHASED A TICKET FOR A FLIGHT WHICH LEFT MIAMI AT
 3:30 P.M. AND ARRIVED IN JACKSONVILLE AT 5:00 P.M.  MR. PIERCE SPENT THE
 NIGHT AT THE TRAVEL LODGE MOTEL IN JACKSONVILLE, FLORIDA.
 
    THE NEXT DAY, MAY 15, 1980, MR. PIERCE PARTICIPATED IN THE
 NEGOTIATIONS AS A MEMBER OF THE NTEU'S BARGAINING TEAM.  FOLLOWING THE
 COMPLETION OF THAT DAY'S NEGOTIATIONS, MR. PIERCE CAUGHT A FLIGHT BACK
 TO MIAMI AND SUBSEQUENTLY ARRIVED AT HIS HOME AT ABOUT 5:00 P.M.
 
    ON OR ABOUT MAY 30, 1980, MR. PIERCE SUBMITTED HIS TRAVEL VOUCHER TO
 IRS FOR THE EXPENSES INCURRED AS MEMBER OF THE NTEU'S BARGAINING TEAM ON
 MAY 15, 1980.  ADDITIONALLY, MR. PIERCE SUBMITTED A WRITTEN REQUEST FOR
 ADMINISTRATIVE TIME FOR TRAVEL.  SUBSEQUENTLY, MR. RON PROWLER, AN IRS
 SUPERVISOR, DENIED MR. PIERCE'S VOUCHER AND HIS REQUEST FOR THREE HOURS
 OF ADMINISTRATIVE TIME ON THE GROUND THAT "THE POLICY OF THE DISTRICT IS
 THAT TRAVEL TIME INCURRED TO ATTEND UNION NEGOTIATION MEETINGS MUST BE
 ON THE EMPLOYEE'S TIME AND DOES NOT QUALIFY FOR ADMINISTRATIVE TIME".
 MR. PIERCE WAS REQUIRED TO TAKE THREE HOURS ANNUAL LEAVE AND HAS NEVER
 BEEN REIMBURSED BY THE IRS FOR HIS EXPENSES ON MAY 15, 1980, WHEN HE
 PARTICIPATED IN THE NEGOTIATIONS AS A MEMBER OF THE NTEU'S BARGAINING
 TEAM.  MR. PIERCE WAS SUBSEQUENTLY REIMBURSED BY THE UNION FOR THE
 EXPENSES HE INCURRED ON MAY 15, 1980.
 
    PURSUANT TO AN ANNOUNCED IRS DECISION TO MERGE THE JACKSONVILLE
 DISTRICT EP/EO (EMPLOYEE PLANS/EXEMPT ORGANIZATION) DIVISION INTO THE
 ATLANTA DISTRICT EP/EO DIVISION, THE PARTIES AFTER AN EXCHANGE OF
 LETTERS AND DISCUSSIONS AGREED TO MEET FOR NEGOTIATIONS CONCERNING THE
 MERGER ON JUNE 17, 1980, IN ATLANTA, GEORGIA.  PRIOR TO THE MEETING, THE
 IRS WAS INFORMED THAT THE NTEU WOULD BE REPRESENTED BY MS. JOYCE
 GLUCKSMAN AND MR. TIMOTHY WELSH, NTEU ATTORNEYS, MR. HAL DUBIN,
 PRESIDENT OF NTEU'S ATLANTA CHAPTER, AND MR. ORVILLE GUINN, PRESIDENT OF
 NTEU'S JACKSONVILLE CHAPTER.
 
    MR. GUINN LEFT HIS HOME IN JACKSONVILLE, FLORIDA AT AROUND 5:15 A.M.
 ON JUNE 17, 1980 AND CAUGHT A 7:15 A.M. AIRLINE FLIGHT TO ATLANTA,
 GEORGIA.  UPON ARRIVAL IN ATLANTA HE TOOK AN AIRPORT LIMOUSINE TO THE
 MEETING AND ARRIVED AT THE MEETING LOCATION ABOUT 9:30 A.M.  THE
 NEGOTIATING MEETING COMMENCED AT 10:00 A.M. AND CONTINUED THROUGH THE
 DAY WITH A BREAK FOR LUNCH.  MR. GUINN LEFT THE MEETING EARLY IN THE
 AFTERNOON AND TOOK A TAXI TO THE AIRPORT.  MR. GUINN CAUGHT A 4:15 P.M.
 FLIGHT AND ARRIVED AT HIS HOME IN JACKSONVILLE SOMETIME BETWEEN 5:00
 P.M. AND 6:00 P.M.
 
    ON OR ABOUT JUNE 30, 1980, MR. GUINN SUBMITTED A VOUCHER TO THE
 JACKSONVILLE IRS DISTRICT FOR THE EXPENSES HE INCURRED ON JUNE 17, 1980.
  THE VOUCHER WAS REJECTED ON THE GROUND THAT "IT IS THE POSITION OF
 INTERNAL REVENUE SERVICE THAT WE ARE NOT OBLIGATED TO PAY TRAVEL
 EXPENSES AND PER DIEM FOR MEMBERS OF NTEU NEGOTIATING TEAM".
 SUBSEQUENTLY, AFTER BECOMING A MEMBER OF THE IRS ATLANTA DISTRICT DUE TO
 THE MERGER, MR. GUINN RESUBMITTED HIS VOUCHER TO THE ATLANTA DISTRICT.
 THE ATLANTA DISTRICT DENIED HIS VOUCHER FOR THE SAME REASON SET FORTH
 ABOVE.  MR.  GUINN HAS NEVER BEEN PAID BY IRS FOR THE EXPENSES INCURRED
 IN CONNECTION WITH THE JUNE 17, 1980 NEGOTIATING SESSION.  THE NTEU DID,
 HOWEVER, SUBSEQUENTLY REIMBURSE HIM FOR THE EXPENSES INCURRED.
 
    WITH RESPECT TO MR. GUINN'S PARTICIPATION AT THE JUNE 17, 1980,
 NEGOTIATION SESSION, MR. GUINN TESTIFIED THAT HE ACTED AS A CONSULTANT
 TO THE NTEU ATTORNEYS, PASSED NOTES TO THE ATTORNEYS, CAUCUSED WITH THEM
 AND ON OCCASION SPOKE OUT AT THE MEETING.
 
    MR. TRAMMELL, WHO WAS ON THE IRS NEGOTIATING TEAM, RECALLS THAT OTHER
 THAN SPEAKING OUT ONCE AT THE MEETING MR. GUINN DID LITTLE ELSE.  HE DID
 NOT SEE MR. GUINN PASSING NOTES OR CAUCUSING.  MR. CASSIDY, ANOTHER
 MEMBER OF THE IRS NEGOTIATING TEAM, TESTIFIED THAT OTHER THAN CONFERRING
 WITH MR. WELSH ON ONE OCCASION, MR. GUINN DID NOT ACTUALLY PARTICIPATE
 IN THE NEGOTIATIONS.
 
                        DISCUSSION AND CONCLUSIONS
 
    ALL PARTIES CONCEDE THAT RESOLUTION OF THE INSTANT UNFAIR LABOR
 PRACTICE COMPLAINT TURNS ON THE INTERPRETATION OF SECTION 7131 OF THE
 STATUTE.  THE PARTIES ALSO ACKNOWLEDGE THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY, (HEREINAFTER CALLED THE AUTHORITY), HAS ADDRESSED THE ISSUE
 IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, AND A SUBSEQUENT
 DECISION IN BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
 DEPT. OF TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40.  HOWEVER,
 RESPONDENT TAKES THE POSITION THAT THE FACTS OF THE INSTANT CASES ARE
 DISTINGUISHABLE IN THAT (1) THE MAY 15, 1980 NEGOTIATIONS, IN WHICH MR.
 BARNLUND AND MR. PIERCE PARTICIPATED, DID NOT QUALIFY AS "COLLECTIVE
 BARGAINING NEGOTIATIONS" SINCE THEY WERE HELD PURSUANT TO A PRIOR UNFAIR
 LABOR PRACTICE SETTLEMENT, AND (2) MR. GUINN'S ACTIONS OR ACTIVITIES IN
 THE JUNE 17, 1980, NEGOTIATIONS WERE SO LIMITED THAT HE SHOULD BE
 DISQUALIFIED FROM RECEIVING THE BENEFITS, I.E. TRAVEL AND PER DIEM
 EXPENSES, ACCORDED UNION NEGOTIATORS UNDER THE AUTHORITY'S
 INTERPRETATION AND GUIDANCE, SUPRA.
 
    ADDITIONALLY, RESPONDENT TAKES THE POSITION THAT (1) THE AUTHORITY'S
 INTERPRETATION AND GUIDANCE, SUPRA, IS INCORRECT, (2) THE AUTHORITY
 EXCEEDED ITS STATUTORY AUTHORITY IN THE INTERPRETATION AND GUIDANCE, AND
 (3) THE INTERPRETATION AND GUIDANCE IS CONTRARY TO LAW IN THAT IT
 REQUIRES THE IRS TO EXPEND MONEY FOR PER DIEM AND TRAVEL ASSOCIATED WITH
 NEGOTIATIONS DESPITE THE FACT THAT CONGRESS HAS NOT SPECIFICALLY
 APPROPRIATED MONEY FOR THIS PURPOSE.  /2/
 
    THE GENERAL COUNSEL AND THE CHARGING PARTY, ON THE OTHER HAND, TAKE
 THE POSITION THAT ALL THE NEGOTIATIONS FALL WITHIN THE AMBIT OF THE
 AUTHORITY'S INTERPRETATION AND GUIDANCE AND THE AUTHORITY'S DECISION IN
 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, SUPRA.  IN SUCH
 CIRCUMSTANCES, IT IS THEIR FURTHER POSITION THAT THE THREE EMPLOYEES
 INVOLVED HEREIN ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND
 TRAVEL EXPENSES.  ADDITIONALLY, THEY TAKE THE POSITION THAT MR. GUINN
 DID PARTICIPATE IN THE JUNE 17, 1980, NEGOTIATIONS AND, THAT IN ANY
 EVENT, THE QUANTUM OF HIS PARTICIPATION IN NOT CONTROLLING.
 
    IN THE INTERPRETATION AND GUIDANCE AND THE DECISION IN BUREAU OF
 ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, THE AUTHORITY CONCLUDED
 THAT EMPLOYEES ARE ENTITLED TO OFFICIAL TIME AS WELL AS PER DIEM AND
 TRAVEL EXPENSES WHILE PERFORMING UNION REPRESENTATIONAL RESPONSIBILITIES
 IN THE AREA OF COLLECTIVE BARGAINING NEGOTIATIONS.  ACCORDINGLY, IF THE
 MEETINGS HERE INVOLVED FALL WITHIN THE AMBIT OF "NEGOTIATION OF A
 COLLECTIVE BARGAINING AGREEMENT", THEN THE THREE EMPLOYEES ARE ENTITLED
 TO OFFICIAL TIME AS WELL AS PER DIEM AND TRAVEL EXPENSES.
 
    CONTRARY TO THE CONTENTION OF THE RESPONDENT, I FIND THAT THE MEETING
 HELD ON MAY 15, 1980, CONSTITUTED "NEGOTIATION OF A COLLECTIVE
 BARGAINING AGREEMENT" WITHIN THE MEANING OF SECTION 7131 OF THE STATUTE.
  /3/ THE MERE FACT THAT THE NEGOTIATIONS WERE A PRODUCT OF A PRIOR
 UNFAIR LABOR PRACTICE SETTLEMENT IS OF NO IMPORT.  IT IS THE CHARACTER
 OF THE MEETING WHICH IS DETERMINATIVE NOT THE ORIGIN.  TO HOLD
 OTHERWISE, AS URGED BY RESPONDENT, WOULD ALLOW AGENCIES OR ACTIVITIES TO
 ESCAPE THE PAYMENT OF TRAVEL AND PER DIEM EXPENSES INCURRED BY UNION
 REPRESENTATIVES DURING COLLECTIVE BARGAINING NEGOTIATIONS HELD PURSUANT
 TO AUTHORITY ORDERS IN UNFAIR LABOR PRACTICE PROCEEDINGS.  UNDER THE
 RESPONDENT'S THEORY, THIS RESULT WOULD HAVE TO FOLLOW BECAUSE THE
 SUBSEQUENT BARGAINING WOULD NOT BE BASED UPON THE MUTUAL OBLIGATION OF
 THE PARTIES, BUT RATHER THE SINGLE OBLIGATION IMPOSED ON THE RESPONDENT
 BY THE AUTHORITY'S ORDER.  SUCH A RESULT WOULD ENCOURAGE ACTIVITIES AND
 AGENCIES TO DEFY THE STATUTE AND ONLY BARGAIN WITH A UNION AFTER AN
 UNFAIR LABOR PRACTICE FINDING AND AN APPROPRIATE ORDER FROM THE
 AUTHORITY.
 
    WITH RESPECT TO RESPONDENT'S REMAINING DEFENSE CONCERNING THE AMOUNT
 OF PARTICIPATION BY MR. GUINN IN THE JUNE 17, 1980, NEGOTIATIONS, I FIND
 SUCH DEFENSE OR POSITION TO BE WITHOUT MERIT.  IN THIS LATTER CONTEXT I
 NOTE THAT MR. GUINN DID PARTICIPATE IN THE NEGOTIATIONS AND THAT, IN ANY
 EVENT, NEITHER THE AUTHORITY NOR THE STATUTE SETS FORTH ANY MINIMUM
 STANDARD OF PARTICIPATION WHICH MUST BE MET BEFORE A UNION NEGOTIATOR IS
 ENTITLED TO BE PAID THE TRAVEL AND PER DIEM EXPENSES INCURRED IN THE
 NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT.
 
    IN VIEW OF THE FOREGOING CONCLUSIONS, I FIND THAT THE RESPONDENT
 VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY VIRTUE OF ITS
 ACTIONS IN REFUSING TO PROVIDE NTEU REPRESENTATIVES CALVIN BARNLUND,
 WAYNE PIERCE AND ORVILLE GUINN OFFICIAL TIME AND/OR PER DIEM AND TRAVEL
 EXPENSES IN CONNECTION WITH THEIR PARTICIPATION IN COLLECTIVE BARGAINING
 NEGOTIATIONS HELD ON MAY 15 AND JUNE 17, 1980, RESPECTIVELY.
 
    CONTRARY TO THE ALLEGATIONS OF THE COMPLAINT AND IN THE ABSENCE OF
 ANY COGENT ARGUMENT IN SUPPORT THEREOF, I FIND THAT THE RESPONDENT'S
 ACTIVITIES DESCRIBED IN DETAIL ABOVE, DID NOT ALSO CONSTITUTE A SEPARATE
 VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE.  ACCORDINGLY, I SHALL
 RECOMMEND THAT THIS ALLEGATION OF THE COMPLAINT BE DISMISSED IN ITS
 ENTIRETY.
 
    HAVING FOUND AND CONCLUDED THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE
 THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
 2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SECTION
 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF
 TREASURY, INTERNAL REVENUE SERVICE, JACKSONV