14:0127(26)CA - Treasury, IRS and Treasury, IRS Austin Service Center and NTEU and NTEU Chapter 72 -- 1984 FLRAdec CA
[ v14 p127 ]
14:0127(26)CA
The decision of the Authority follows:
14 FLRA No. 26
UNITED STATES DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE AND UNITED STATES
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE
SERVICE, AUSTIN SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 72
Charging Party
Case No. 6-CA-30019
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices, and recommending that the Respondent be
ordered to cease and desist therefrom and take certain affirmative
action. /1/ Thereafter, the Respondent filed exceptions to the Judge's
Decision.
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 and finds that no prejudicial error was committed. The rulings
are hereby affirmed. upon consideration of the Judge's Decision and the
entire record in this case, the Authority hereby adopts the Judge's
findings, conclusions and recommendations only to the extent consistent
herewith.
The Judge concluded that the Respondent's failure to pay employee
Knight for his travel and per diem expenses incurred as a union
negotiator during negotiations conducted July 6-9, 1982, August 3-6,
1982, and November 2-5, 1982, constituted a failure and refusal to
comply with section 7131(a) of the Statute in violation of section
7116(a)(1) and (8) of the Statute. Subsequent to the issuance of the
Judge's Decision, the United States Supreme Court concluded in Bureau of
Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439(1983) that the
obligation of an agency under section 7131(a) of the Statute to provide
official time to employees representing an exclusive representative in
the negotiation of a collective bargaining agreement does not encompass
the payment of travel expenses and per diem allowances. Pursuant to
that decision, and for the reasons set forth by the Court, the Authority
concludes herein that the Respondent did not fail or refuse to comply
with the provisions of section 7131(a) of the Statute. Therefore, it
follows that the Respondent did not violate section 7116(a)(1) and (8)
of the Statute.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 6-CA-30019 be,
and it hereby is, dismissed. /2/
Issued, Washington, D.C., March 23, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE,
AUSTIN SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 72
Charging Party
Case No.: 6-CA-30019
W. B. Riley, Esquire
Gary A. Anderson, Esquire
William P. Lehman, Esquire
For the Respondent
Anne Ellzey, Esquire
For the Charging Party
Susan E. Jelen, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This case, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /3/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1 et seq., solely involves Respondent's conceded refusal to
pay travel and per diem expenses for an employee-union negotiator.
The Charge was filed on October 21, 1982 (Exh. 1 to General Counsel's
Motion for Summary Judgment), a First Amended Charge was filed on
December 20, 1982 (Exh. 4 to General Counsel's Motion for Summary
Judgment), and the Complaint and Notice of Hearing issued on December
28, 1982. The Notice of Hearing set the hearing for February 15, 1983,
in Austin Texas. Counsel for Charging Party, because of previously
scheduled annual leave on the date of the hearing, moved to Postpone the
Date for Hearing by Motion dated January 7, 1983, and received in this
Office on January 12, 1983. On January 25, 1983, Counsel for General
Counsel filed with the Regional Director a Motion for Summary Judgment
which was referred to this Office for disposition by the Regional
Director on January 25, 1983, pursuant to Sec. 2423.22(b) of the
Regulations. On January 31, 1983, this Office issued an Order to Show
Cause and Order Postponing Hearing. The Order stated, in part, that:
" . . . From the Motion for Summary judgment it would not
appear that Respondent, by its Answer, has raised any litigable
issue and/or that Respondent has raised any material issue of
fact. Accordingly, an Order to Show Cause will be issued and,
pending Respondent's response, the hearing, scheduled for February
15, 1983, in Austin, Texas, will be cancelled and the case will be
indefinitely postponed to be rescheduled for hearing only if
Respondent shows some material issue of fact to be litigated.
Under the circumstances, it is unnecessary to pass on the Motion
of the Charging Party and it is hereby dismissed as moot . . .
It was,
"ORDERED, that Respondent show cause on or before February 22,
1983, why the Motion of the General Counsel for Summary Judgment
should not be granted. All responses must be in writing and must
be received in this Office before the close of business on
February 22, 1983, or they will be rejected as untimely. It is
"FURTHER ORDERED, that the hearing scheduled for February 15,
1983, in Austin, Texas, be and the same is hereby cancelled and
further hearing is indefinitely postponed pending disposition of
the Motion for Summary Judgment." (Order, dated January 31, 1983).
In response to General Counsel's Motion for Summary Judgment,
Respondent filed its own Motion for Summary Judgment, received by this
Office on February 10, 1983, in which it prayed that General Counsel's
Motion for Summary Judgment be denied and that its Motion for Summary
Judgment be granted. Charging Party filed no response to General
Counsel's Motion for Summary Judgement. Both from General Counsel's
Motion for Summary Judgment and from Respondent's Motion for Summary
Judgment it is clear that there are no genuine issues of material fact
and that only legal issues are involved. Moreover, as each party has
filed a Motion for Summary judgment, disposition of this matter by
summary judgment in lieu of a hearing is agreed. /4/ Both the General
Counsel and Respondent filed excellent briefs in support of their
respective Motions for Summary Judgment.
The undersigned was duly designated to handle this matter.
Findings of Fact
The Complaint alleged, and Respondent by its Answer admitted, inter
alia, that the National Treasury Employees Union (NTEU) is the
recognized exclusive representative for employees of the Internal
Revenue Service (IRS); that IRS and NTEU are parties to a national
agreement; and that Chapter 72 is the local representative of NTEU at
the Austin Service Center of Respondent (Exhibits 7 and 9 to General
Counsel's Motion for Summary Judgment).
The material admitted facts, as stated by Respondent, and fully in
accord with General Counsel's statement of facts, are as follows:
"On or about July 6-9, 1982, August 3-6, 1982, and November
2-5, 1982, the respondent and the National Treasury Employees
Union (NTEU) engaged in mid-term negotiations in Washington, D.C.
concerning the appraisal system and incentive awards for
bargaining unit employees. Employee-union negotiator Bill Knight
traveled from Austin, Texas, to Washington, D.C. to participate in
these negotiations. Pursuant to the parties' national contract
respondent provided Mr. Knight official time for those hours
actually spent in the negotiating sessions. However, Mr. Knight
was not granted official time for travel to and from the
negotiation sessions /5/ and was not paid travel and per diem
allowances." /6/ (Respondent's Brief In Support of Its Motion for
Summary Judgment, pp. 2-3).
Conclusions
Section 31(a) of the Act 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 proceedings, 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 same purposes." (5 U.S.C. 7131(a)).
On December 19, 1979, the Authority issued its Interpretation and
Guidance (Case Nos. O-PS-3 and O-PS-6), 2 FLRA 264(1979) on, inter alia,
whether employees are entitled to payment from agencies for their travel
and per diem expenses when representing an exclusive representative in
negotiations. /7/ Although the Authority recognized that "Neither the
Statute, nor its legislative history, expressly adverts to the payment
of travel expenses or per diem during participation in these negotiation
activities" (2 FLRA at 269) and that, "Under section 20 of E.O. 11491,
as amended, travel expenditures were not authorized for union
representatives engaged in negotiation activities (Labor-Management
Relations in the Federal Service (1975) at 581" (2 FLRA at 269 n.6),
nevertheless, the Authority concluded, in pertinent part, as follows:
"2. Employees who are on official time under section 7131 of
the Statute while representing an exclusive representative in the
negotiation of a collective bargaining agreement are entitled to
payments from agencies for their duty time and travel and per diem
expenses." (2 FLRA at 272).
The Authority has followed its Interpretation and Guidance, supra, in
numerous cases since it was issued including, Bureau of Alcohol, Tobacco
and Firearms, Western Region, Department of the Treasury, San Francisco,
California, 4 FLRA No. 40(1980); Florida National Guard, 5 FLRA No. 49
(1981); U.S. Department of Agriculture, Science and Education
Administration, Agricultural Research, North Central Region,
Dakotas-Alaska Area, 6 FLRA No. 45(1981); United States Customs
Service, 7 FLRA No. 68(1981); Division of Military and Naval Affairs,
State of New York (Albany, New York), 7 FLRA No. 69(1981); Bureau of
The Mint, Department of the Treasury, 7 FLRA No. 70(1981); Department
of the Treasury, Bureau of Alcohol, Tobacco and Firearms, North Atlantic
Region (New York, New York), 8 FLRA No. 70(1982); and Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms and Its Midwest
Region, 9 FLRA No. 29(1982).
The first case to be decided by a Court of Appeals was Bureau of
Alcohol, Tobacco and Firearms, Western Region, Department of Treasury,
San Francisco, supra, and the Ninth Circuit Court of Appeals enforced
the Order of the Authority, 672 F.2d 732, 109 LRRM 3307 (9th Cir. 1982).
The Court concluded,
"The FLRA's Interpretation and Guidance is reasonable and
supportable, and therefore will be given deference by this Court.
The FLRA, acting in its own area of expertise, has interpreted the
relevant language of Title VII in a clearly defensible manner, and
we are neither permitted nor inclined to substitute a different
judgment." (672 F.2d at 738, 109 LRRM at 3310).
Thereafter, the Second Circuit Court of Appeals, by a divided panel,
Judge Oakes dissenting, in Division of Military and Naval Affairs, State
of New York and Department of Defense, supra, 683 F.2d 45, 110 LRRM
2990, (2d Cir. 1982), reached an opposite conclusion and denied
enforcement of the Order of the Authority. The Court majority stated,
in part, as follows:
" . . . Under all the circumstances we cannot believe that
Congress meant the government to assume such an unusual burden, so
different from any accepted practice in dealings between employers
and employees, absent a clear and specific provision to that
effect." (683 F.2d at 49, 110 LRRM at 2992).
Subsequently, the Eighth Circuit Court of Appeals, also by a divided
panel, Judge Heaney dissenting, in United States Department of
Agriculture v. Federal Labor Relations Authority and American Federation
of Government Employees, AFL-CIO, Intervenor/Respondent, 691 F.2d 1242,
111 LRRM 2007 (8th Cir. 1982), like the Second Circuit, denied
enforcement of the Authority's Order. The Court majority stated, in
part, as follows:
" . . . The FLRA reasons that by adopting completely new language,
allowing official time for hours spent in negotiations if the
employee would otherwise be in a duty status, Congress intended to
reject the Executive Order's limitations of official time,
including its prohibitions on travel expenses and per diem.
"We find this argument unpersuasive. In the absence of any
comment in the legislative history, we cannot know why Congress
rejected the Senate version. In addition, any change reflects, at
most, a desire to alter the official time provision, (footnote
omitted) indicating nothing about the congressional view of travel
expenses and per diem. If anything, congressional silence would
point towards its acceptance of prior practice, which did not
allow travel expenses and per diem. /8/
More recently, the Eleventh Circuit Court of Appeals, in Florida
National Guard and Department of Defense v. Federal Labor Relations
Authority, 699 F.2d 1092 (11th Cir. 1983), has joined the Second and
eighth Circuits and denied enforcement of the Authority's order to pay
travel expenses and per diem for a union-employee negotiator.
The Authority remains unpersuaded by the decisions of the Second,
Eighth and Eleventh Circuits and, embracing the decision of the Ninth
Circuit, has adhered to its view that agencies must pay travel and per
diem expenses of employees while representing an exclusive
representative in negotiations. See, for example, United States
Environmental Protection Agency, Washington, D.C. and United States
Environmental Protection Agency, Region IV, Atlanta, Georgia, 10 FLRA
No. 30(1982); United States Department of the Treasury, Internal
Revenue Service and United States Department of the Treasury, Internal
Revenue Service, Austin District, 10 FLRA No. 38(1982); Department of
Treasury, Bureau of Alcohol, Tobacco and Firearms, 10 FLRA No. 52(1982);
and Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 10 FLRA No. 53(1982).
On January 17, 1983, the Supreme Court granted certiorari in Bureau
of Alcohol, Tobacco and Firearms v. Federal Labor Relation Authority, et
al., No. 82-799, -- U.S. -- , 103 S.Ct. 784(1983). (Petitions for
certiorari by the Authority are pending in Federal Labor Relations
Authority v. Department of Agriculture, No. 82-979 (12/13/82), and in
Federal Labor Relations Authority v. Division of Military and Naval
Affairs, No. 82-1021 (12/16/82). Obviously, the Supreme Court will, as
it must in view of the split of the Circuits, ultimately resolve this
issue. /9/ Respondent's arguments here, that the Authority's
Interpretation and Guidance, 2 FLRA 264, is without support in the Act
or its legislative history; and that Respondent is without authority to
expend its appropriated funds for the payment of employee-union
negotiators' travel and per diem expenses, have previously been
considered by the Authority and rejected in its decisions set forth
above. Thus, in Bureau of the Mint, Department of the Treasury, supra,
the Authority stated, in part, as follows:
" . . . Respondent argues that such precedent should be reversed
because the Authority's decision in Interpretation and Guidance,
supra, is without a basis in the Statute. The Respondent also
argues that it does not have legal authority to expend
appropriated funds for the payment of travel and per diem expenses
to employees serving as Union negotiators . . .
. . . .
"The Authority has considered the Respondent's arguments,
essentially based on the Respondent's reading of the legislative
history, that established precedent . . . be reversed. However,
no basis has been advanced to demonstrate that the established
precedent is incorrect, nor has the Respondent raised arguments
not previously considered. Thus, the Authority concluded in its
decision in Interpretation and Guidance and subsequent cases based
upon an analysis of the Statute and the legislative history of
section 7131 that any employee who is on official time under
section 7131 while representing an exclusive representative in the
negotiation of a collective bargaining agreement is entitled to
payment from agencies for travel and per diem expenses.
Therefore, . . . Respondent violated section 7116(a)(1) and (8)
when it declined to pay travel and per diem expenses. . . . " (7
FLRA at 465).
And, in United States Department of the Treasury, Internal Revenue
Service and United States Department of the Treasury, Internal Revenue
Service, Austin District, supra, the Authority stated, in part, as
follows:
"The facts and positions of the parties are substantially
identical to those in 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). (footnote 1, which cites
the contrary decisions of the Second Circuit and Eighth Circuit,
Supra, Omitted) Thus, for the reasons set forth therein, the
Authority finds that the Respondent has failed and refused to
comply with section 7131(a) of the Statute and therefore has
violated section 7116(a)(1) and (8) of the Statute." (footnote
omitted)
Of course, as an Administrative Law Judge, I am bound by the
Authority's pronouncements and decisions until such time as they are
overruled by higher authority. As to the Authority's decisions on the
obligation of agencies to pay travel and per diem expenses, although
there is a split by the Circuits, the Authority adheres to its position
as initially stated in its Interpretation and Guidance, supra, which is
fully supported by the decision of the Ninth Circuit Court of Appeals,
and unless and until that decision is reversed by the Supreme Court I am
constrained to follow the Authority's decisions. Accordingly, by its
failure to pay employee-Union negotiator Bill Knight for his travel and
per diem expenses, Respondent failed and refused to comply with Sec.
31(a) of the Statute and, therefore, has violated Secs. 16(a)(1) and (8)
of the Statute.
Having found that Respondent violated Sec. 16(a)(1) and (8) of the
Statute, I recommend that the Authority adopt the following:
ORDER
Pursuant to Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, and
Sec. 18 of the Statute, 5 U.S.C. 7118, the Authority hereby orders that
the United States Department of the Treasury, Internal Revenue Service
and United States Department of the Treasury, Internal Revenue Service,
Austin Service Center /10/ shall:
1. Cease and desist from:
(a) Failing and refusing to reimburse employee Bill Knight for
travel and per diem expenses incurred, pursuant to Sec. 31(a) of
the Statute, 5 U.S.C. 7131(a), as the designated representative of
the National Treasury Employees Union, Chapter 72, the exclusive
representative of its employees, in mid-term negotiations
conducted in July, August and November, 1982.
(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) Reimburse employee Bill Knight, based upon the previously
submitted vouchers, for travel and per diem expenses incurred,
pursuant to Sec. 31(a) of the Statute, 5 U.S.C. 7131(a), as the
designated representative of the National Treasury Employees
Union, Chapter 72, the exclusive representative of its employees,
in mid-term negotiations conducted in July, August and November,
1982.
(b) Post at its facilities in the Austin Service Center copies
of the attached Notice on forms to be furnished by the Authority.
Upon receipt of such forms, they shall be signed by the Director
of the Austin Service Center 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. The Director shall take
reasonable steps to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director of the Federal Labor
Relations Authority for Region 6, whose address is: P.O. Box
2640, Dallas, Texas 75221, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
therewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: April 19, 1983
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to reimburse employee Bill Knight for
travel and per diem expenses incurred, pursuant to Sec. 31(a) of the
Statute, 5 U.S.C. 7131(a), as the designated representative of the
National Treasury Employees Union, Chapter 72, our employees' exclusive
representative, in mid-term negotiations conducted in July, August and
November, 1982.
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 reimburse employee Bill Knight, based upon the previously
submitted vouchers, for travel and per diem expenses incurred, pursuant
to Sec. 31(a) of the Statute, 5 U.S.C. 7131(a), as the designated
representative of the National Treasury Employees Union, our employees'
exclusive representative, in mid-term negotiations conducted in July,
August and November, 1982.
(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 of the Federal Labor Relations Authority, Region 6,
whose address is: P.O. Box 2640, Dallas, Texas 75221, and whose
telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ In finding that the Respondent had engaged in the unfair labor
practices alleged in the complaint, the Judge effectively granted the
General Counsel's Motion for Summary Judgment and denied the
Respondent's Motion for Summary Judgment, the latter of which sought
dismissal of the complaint.
/2/ The Authority received a motion filed by the Counsel for the
General Counsel seeking to have the case remanded to the Regional
Director for withdrawal of the complaint and dismissal of the charge.
In view of the Authority's disposition on the merits of this case, the
Counsel for the General Counsel's motion is hereby denied.
/3/ For convenience of reference, sections of the Statute hereinafter
are, also referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7131 will be referred to simply as
"Sec. 31".
/4/ Because each party prays for summary judgment, it is unnecessary
to review the authority for the use of summary judgment which has been
well stated by Judge Nash, in Oklahoma Army National Guard, Oklahoma
City, Oklahoma and National Federation of Federal Employees, Local 1694,
Case No. 6-CA-20160 (December 2, 1982) (OALJ-83-29), and by Judge
Cappello, in American Federation of Government Employees, AFL-CIO, Local
1617, and United States Department of Defense, Department of the Air
Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas,
Case Nos. 6-CO-20005 and 6-CO-20006 (February 8, 1983) (OALJ-83-50).
/5/ The Complaint contains no allegation concerning the allowance of
official time for travel or otherwise; nor did either the Charge or
First Amended Charge. Accordingly, no issue of official time is before
me.
/6/ Mr. Knight's Travel Vouchers, as submitted to Respondent are
attached to General Counsel's Motion for Summary Judgment as Exhibits 10
(July 5-11, 1982); 12 (August 3-6, 1982), 14 (November 2-5, 1982), and
total $1,784.95.
/7/ The Authority also held therein that Sec. 31(a) "encompass all
negotiations . . . regardless of whether such negotiations pertain to
the negotiation or renegotiation (mid-term) of a basic collective
bargaining agreement." (2 FLRA at 268, 272).
/8/ The FLRA has also argued that there was no need for Congress to
address specifically travel expenses and per diem, because 'official
time' means 'duty' status and because travel expenses are automatically
permitted when an employee must travel in connection with that duty
status. The plain language of Sec. 7131, however, belies this
contention because it authorizes official time only when the employee
'otherwise would be in a duty status'. If official time meant duty
status, the quoted phrase would become superfluous. We cannot accept
such an interpretation." (691 F.2d at 1248-1249, 111 LRRM at 2012-2013)
/9/ In view of the division of the Circuits (various appeals are also
pending in different Circuits, including the D.C. Circuit and the Sixth
Circuit), the grant of certiorari, and the fact that the position of all
parties will be wholly unaffected by a further decision in this case, it
would better have served the ends of justice had the parties each
stipulated that they would forthwith comply with the decision of the
Supreme Court and they had requested that further proceeding be held in
abeyance pending decision by the Supreme Court; but neither party has
seen fit to do so. To the contrary, by their respective Motions for
Summary Judgment, each party seeks a decision in this case and, under
the circumstances, I can perceive no justification for not complying
with their desire.
/10/ Respondent neither contends nor is there any ground shown in the
Motions for Summary Judgment which either would permit or require that
only the Agency or the Activity is responsible for the violation. cf.,
United States Environmental Protection Agency, supra, 10 FLRA at 152;
See, United States Department of the Treasury, Internal Revenue Service
and United States Department of the Treasury, Internal Revenue Service,
Austin District, supra, 10 FLRA at 195.