[ v23 p774 ]
23:0774(100)CA
The decision of the Authority follows:
23 FLRA No. 100
UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND INTERNAL REVENUE SERVICE, AUSTIN
DISTRICT, AND INTERNAL REVENUE SERVICE
HOUSTON DISTRICT
Respondents
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 52 AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 222
Charging Party
Case Nos. 6-CA-20127
6-CA-20128
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
as a result of the Regional Director's transfer of the stipulated record
directly to the Authority for decision pursuant to section 2429.1(a) of
the Authority's Rules and Regulations. The consolidated complaint
alleges that the Department of the Treasury, Internal Revenue Service
(IRS), the IRS Austin District and the IRS Houston District, referred to
jointly as Respondents, violated section 7116(a)(1) and (8) of the
Statute by their refusal to pay travel and per diem expenses and allow
official time for travel to two employees representing the employees'
exclusive representative in negotiations as required by section 7131(a)
of the Statute.
II. Facts
On November 23 and 24, 1981, representatives of the Respondents and
the National Treasury Employees Union (the Union), engaged in
negotiations concerning procedures and appropriate arrangements for unit
employees adversely affected by a reorganization of Respondents'
facilities which resulted in the formation of Respondents' Houston
District. These negotiations took place in Austin, Texas. Two employee
representatives of the Union traveled to Austin, Texas from Houston and
San Antonio, Texas. Respondents rejected the employees' requests for
reimbursement of travel and per diem expenses and refused to grant
official time for travel to and from the negotiations. Respondents did
authorize official time for time actually spent by the employees in
negotiations.
Prior to the negotiations referred to above, IRS and the Union had
engaged in negotiatioins for a new national agreement. During these
negotiations, the Union introduced certain proposals dealing with
official time and the payment of union representatives' travel and per
diem expenses. These proposals resulted in an impasse which was
submitted to the Federal Service Impasses Panel (the Panel) for
resolution. The Panel subsequently issued an order directing the
inclusion of the Union's proposals in the parties' agreement. The IRS
subsequently declared these proposals to be nonnegotiable and thereafter
did not comply with the Panel's Order. The IRS' failure to comply with
the Decision and Order of the Panel was the subject of a separate unfair
labor practice charge. See Department of the Treasury and Internal
Revenue Service, 22 FLRA No. 89 (1986).
The Authority specifically notes that there are no facts in the
stipulated record of this case which explain the background or the
reasons for IRS' determination that the Union's proposals are
nonnegotiable or its subsequent decision not to comply with the Panel's
Order. Thus the Authority will take administrative notice that in
Department of the Treasury and Internal Revenue Servsice cited above,
the Authority found that Respondent Treasury violated section
71176(a)(1) and (6) of the Statute when it disapproved contract language
directed by the Panel's Order and directed Respondent IRS not to
incorporate such language in its collective bargaining agreement.
The provisions which the Panel directed the parties to include in
their national agreement provide as follows:
Section 3 -- Mid-Term Negotiations
. . . . . . .
C. If the parties enter into mid-contract negotiations during
the life of this agreement, the following ground rules will apply:
1. For nationally implemented changes referred to in Section
2A above:
. . . . . . .
c. a number of bargaining unit employees equal to the number
of management's representatives shall be given administrative time
and paid travel and per diem to attend all mid-term bargaining
sessions; provided, however, the union shall be allowed no more
than four bargaining unit employees.
. . . . . . .
2. For locally negotiated changes referred to in Section 4B1
above:
. . . . . . .
b. a number of bargaining unit employees equal to the number
of management's representatives shall be given administrative time
and paid travel and per diem to attend all mid-term bargaining
sessions; provided, however, the union shall be allowed no more
than four bargaining unit employees.
. . . . . . .
In the matter of Department of the Treasury, Internal Revenue
Service, Washington, D.C. and National Treasury Employees Union, Case
No. 80 FSIP 68 (1980). /1/
III. Positions of the Parties
A. The Respondents
The Respondents contend that they have not violated section
7116(a)(1) and (8) of the Statute as alleged in the complaint for the
following reasons: (1) The Authority's Interpretation and Guidance in 2
FLRA 265 (1979), on which the complaint is based, is without support
either in the wording of the Statute or its legislative history; (2)
The Respondents are without authority to expend appropriated funds for
the payment of employee representatives' travel and per diem expenses;
(3) Official time, as defined in section 7131(a) of the Statute, does
not cover travel to and from bargaining sessions; and (4) Official time
does not include travel and per diem expenses at local negotiations.
Respondents' brief was filed prior to the Supreme Court's decision in
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983),
which rejected the Authority's interpretation of the Statute in its
Interpretation and Guidance, 2 FLRA 265.
B. The General Counsel
The General Counsel contends that Respondents violated section
7116(a)(1) and (8) of the Statute when they refused to pay travel and
per diem expenses and allow official time for travel to employees
representing the Union in negotiations as provided for in section
7131(a) of the Statute. Essentially the General Counsel argues that the
Authority's Interpretation and Guidance in 2 FLRA 265 is applicable to
the facts presented in this case. /2/
C. The Charging Party
The Charging Party also contends that the Respondents violated
section 7131(a) in refusing to provide official time for travel, and in
denying travel and per diem expenses, for union representatives engaged
in mid-term negotiations. The Charging Party, as part of the remedy,
requests that it be awarded attorney fees under the Equal Access to
Justice Act, 5 U.S.C. Section 504, and the Back Pay Act, 5 U.S.C.
Section 5596, and that the two employees who were denied official time
for travel and travel and per diem expenses be made whole and otherwise
fully reimbursed for the denial of such expenses.
IV. Analysis
A. Issues Connected with the Internal Revenue Service's
Disapproval of the Panel-Directed Contract Language
The Authority has consistently held that an agency's refusal to
implement a Decision and Order of the Federal Service Impasses Panel
requiring the parties to adopt language in their collective bargaining
agreement violates section 7116(a)(1) and (6) of the Statute unless the
Authority finds that the failure to comply with the Panel's Order was
justified because the provisions are contrary to the Statute or other
applicable law, rule or regulation. Department of Defense, National
Guard Bureau, Indiana Air National Guard, Indianapolis, Indiana, 17 FLRA
23 (1985) and National Aeronautics and Space Administration,
Headquarters, Washington, D.C., 12 FLRA 480 (1983). In its decision in
Interpretation and Guidance, 15 FLRA 564 (1984), aff'd. sub nom.
American Federation of Government Employees, AFL-CIO v. FLRA, 778 F.2d
850 (D.C. Cir. 1985), the Authority determined that the unfair labor
practice mechanism is available for the purpose of obtaining review of
an agency head's action in refusing to approve a provision of a
collective bargaining agreement imposed on the parties by a final order
of the Panel in resolving an impasse. When this occurs, the head of the
agency acts at risk and a union challenging the agency head's
disapproval may file a charge alleging that such conduct violated the
Statute.
Since the provisions imposed by the Panel in this case are not
materially different from the proposal recently found to be negotiable
by the Authority in 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. 86-1198 (D.C. Cir. March 27, 1986), the determination by
the IRS not to comply with the lawful order of the Panel constituted a
failure or refusal to cooperate in impasse decisions. Since the
complaint fails to allege a violation of section 77116(a)(6) of the
Statute for failure to cooperate in impasse procedures or decisions, the
Authority is limited to finding that conduct of Respondent IRS violated
section 7116(a)(1) of the Statute in that such conduct inherently
interfered with the exercise by employees of their right under section
7102 of the Statute to engage in collective bargaining through their
chosen representatives, which right includes the utilization of the
processes of the Federal Service Impasses Panel. It is well established
that the impasse resolution procedures of the Panel operate as one
aspect of the collective bargaining process. International Brotherhood
of Electrical Workers, AFL-CIO, Local 121, 10 FLRA 198, 199 (1982).
Under these circumstances, Respondent IRS clearly interfered with
employees' rights guaranteed by the Statute. Department of the Treasury
and Internal Revenue Service, 22 FLRA No. 89 (1985).
In finding that the Respondent IRS violated the Statute in these
circumstances, the Authority notes the relationship between this case
and the Authority's decision in Department of the Treasury and Internal
Revenue Service, 22 FLRA No. 89 (1986). The allegations against the IRS
in that case were dismissed because the IRS had merely engaged in the
ministerial act of forwarding contractual language directed by the Panel
to Treasury for agency head review and thereafter failing to incorporate
the Panel directed language because of the determination by Treasury to
disapprove such language. Under those circumstances, where the
complaint alleged and the Authority found that Treasury had committed an
unfair labor practice by disapproving the Panel-directed language and
the Authority was able to issue an order against Treasury which
effectively remedied the unfair labor practice found, the Authority --
consistent with precedent -- dismissed the complaint against IRS because
it would not effectuate the purposes and policies of the Statute to find
an additional cumulative violation against subordinate level management.
U.S. Department of Justice and Department of Justice, Bureau of
Prisons, Washsington, D.C. and Federal Correctional Institution,
Danbury, Connecticut, 20 FLRA No. 5 (1985), enf'd, 792 F.2d 25 (2d Cir.
1986). In this case, however, where the complaint did not charge
Treasury with a violation but named only IRS and its subordinate
activities as Respondents, the Authority concludes that it would
effectuate the purposes and policies of the Statute to find a violation
against IRS. That is, such a finding here would not be merely
cumulative but is essential if the unfair labor practice committed is to
be effectively remedied. A conclusion that the complaint against IRS
must be dismissed because Treasury was not named as a Respondent would
preclude a remedy for the violation of statutory rights which occurred
here, a result which we conclude would be inconsistent with
Congressional intent. Therefore, we find that Respondent IRS violated
section 7116(a)(1) of the Statute and shall order it to remedy the
violation found.
B. Determinations Regarding the Allegations Against the
Austin
District and Houston District of
the Internal Revenue
Service
The Authority concludes that the allegations against the Austin and
Houston Districts of the Internal Revenue Service should be dismissed
since their denial of official time for travel and the refusal to pay
travel and per diem expenses for union negotiators was made pursuant to
a national policy determination by the Internal Revenue Service. There
is no evidence in the record that such offices had the discretion to
approve official time for travel purposes or that they were authorized
to pay the travel and per diem expenses at issue herein. This result is
consistent with the Authority's determination in other cases that
subordinate activities do not additionally violate the Statute by their
ministerial actions in implementing the directives of higher level
management, where higher level management is found to have violated the
Statute. Departments of the Army and the Air Force National Guard
Bureau and Montana Air National Guard, 10 FLRA 553 (1982), rev'd. on
other grounds, sub nom. Montana Air National Guard v. FLRA, 703 F.2d 577
(9th Cir. 1984).
C. Issues Regarding the Alleged Violation of Section
7116(a)(1) and (8) of the Statute
The Authority turns next to the allegation of the complaint that
Respondents violated section 7116(a)(1) and (8) of the Statute by
failing to grant official time for travel and to pay travel and per diem
expenses to union negotiators because such payments are required by
section 7131(a) of the Statute. In its Supplemental Decision and Order
in United States Department of the Treasury, Internal Revenue Service
and United States Department of the Treasury, Internal Revenue Service
Austin District, 14 FLRA 818 (1984), the Authority modified the decision
it had issued in that case prior to the United States Supreme Court's
decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983). Based on the Supreme Court's decision, the Authority dismissed
the allegations of the complaint pertaining to the Respondent's failure
and refusal to reimburse its employees for their travel and per diem
expenses. However, the Authority left intact those portions of the
decision finding that the entitlement to official time by employees
involved in representing the exclusive representative included necessary
travel time to and from negotiations as occurred during the employees'
regular work hours and when they would otherwise have been in a work or
paid leave status. The Authority's order directed the agency to make
such employees whole for any annual leave utilized. Respondent IRS
herein likewise violated section 7116(a)(1) land (8) of the Statute when
it denied employees official time for travel in violation of section
7131(a) of the Statute. Nothing in the Supreme Court's decision
overturned the Authority's determination that an employee's right to
official time to participate in negotiations under section 7131(a) of
the Statute includes official time for travel to and from such
negotiations.
V. Remedy
To remedy the unfair labor practice conduct, the Authority will order
the Respondent IRS to comply with the Panel's Opinion and Decision, and
to give it retroactive effect. See Interpretation and Guidance, 15 FLRA
564 (1984), affirmed sub nom. American Federation of Government
Employees, AFL-CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985). Consistent
with the Authority's decisions in Department of the Treasury, Internal
Revenue Service, Columbia District, Columbia, South Carolina, 22 FLRA
No. 28 (1986) and Office of the General Counsel, National Labor
Relations Board, 22 FLRA No. 25 (1986), the Authority will further order
the Respondent IRS to make whole the Charging Party for the expenses it
incurred, if any, in paying the travel and per diem expenses of those
bargaining unit employees who attended mid-term bargaining sessions
during the period at issue, which payments otherwise would have been
made by the Respondent IRS under the Panel-imposed agreement provisions.
Additionally, if there are any bargaining unit employees who either did
not receive payments to which they were entitled or were not compensated
fully for such expenses, the Respondent IRS also will be ordered to
reimburse them for the travel and per diem expenses they incurred upon
their submission of properly documented claims for such payments. In
ordering such payments, the Authority notes that by not complying with
the Panel's decision, the Respondent IRS assumed a risk that, if its
position did not prevail, it would be found to have committed an unfair
labor practice and be subject to such a remedy. /3/ Of course, the
payments that are here being ordered must be consistent with law and
regulations, including the Federal Travel Regulations.
VI. Payment of Attorney Fees
In its brief to the Authority, the Charging Party requests that it be
granted attorney fees under the Equal Access to Justice Act and the Back
Pay Act. These requests are denied. With regard to the granting of
attorney's fees under the Equal Access to Justice Act (EAJA), the
Authority's regulations provide that awards under the EAJA are available
only to a respondent, other than the United States, who prevails against
the General Counsel in an unfair labor practice proceeding. /4/
Therefore, the Union, as a charging party, is not entitled to an award
of attorney fees under that Act. Internal Revenue Service (District,
Region, National Office Units), 16 FLRA 904 (1984).
The Authority also concludes that the Charging Party's request for
attorney fees under the Back Pay Act is ill-founded. It is well
established that an award of attorney fees under the Back Pay Act must
be based upon a finding that an unjustified or unwarranted personnel
action has been committed which has deprived an aggrieved employee of
"pay, allowances, or differentials" that the employee would have earned
or received if that action had not occurred. In other words, the award
of fees must be in conjunction with an award of backpay to the
employee(s) on correction of the unwarranted personnel action. See, for
example, Naval Air Development Center, Department of the Navy and
American Federation of Government Employees, Local 1928, AFL-CIO, 21
FLRA No. 25 (1986) and cases cited therein. While the refusal of
Respondent IRS to comply with a lawful Panel order may have constituted
an unwarranted personnel action which resulted in the denial of travel
and per diem expenses to certain employees, travel and per diem expenses
are not "pay, allowances, or differentials" within the meaning of the
Back Pay Act and therefore an order requiring reimbursement of those
expenses does not amount to an award of backpay. Rather, as the
Authority has previously held, the "pay, allowances, or differentials"
encompassed by the Back Pay Act constitute "normal legitimate employee
benefits" in the nature of employee compensation or emoluments which do
not extend to reimbursement payments such as per diem. Community
Services Administration and National Council of CSA Locals, AFGE,
AFL-CIO, 7 FLRA 206, 208-209 (1981). In the Authority's view, the
reimbursement of travel expenses in this context similarly cannot be
equated with backpay so as to justify an award of attorney fees.
VII. Conclusion
Based on the stipulated record, the analysis of the facts and the
precedent cited above, the Authority concludes that Respondent Internal
Revenue Service violated section 7116(a)(1) and (8) of the Statute when
it failed to provide official time for travel purposes to union
representatives and when it failed to include in its national agreement
and thereafter implement Panel-imposed provisions which provided for the
granting of official time for travel, and travel and per diem expenses
to employees participating on behalf of the employees' exclusive
representative in collective bargaining negotiations.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Internal Revenue Service shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in the
exercise of their rights assured by the Statute by failing and refusing
to cooperate in and comply with the Decision and Order of the Federal
Service Impasses Panel issued on December 24, 1980, Case No. 80 FSIP 68,
by failing to implement the provisions directed by the Panel.
(b) Failing and refusing to provide official time, 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, to Antonio Ovalle and Frank Robinson, or any other bargaining
unit employees, while engaged in representing the National Trerasury
Employees Union, the employees' exclusive representative, in collective
bargaining negotiations.
(c) 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 action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Comply with the Decision and Order of the Federal Service
Impasses Panel issued in December 24, 1980, in Case No. 80 FSIP 68,
which contained contractual provisions to be included in the negotiated
agreement between the Internal Revenue Service and the National Treasury
Employees Union, and notify the Union of such compliance in writing.
(b) Make the National Treasury Employees Union whole for the cost, if
any, incurred in paying travedl expenses and per diem allowances to all
bargaining unit employees who have submitted appropriate claims for such
payments under the terms of the contract provisions which the Federal
Service Impasses Panel ordered incorporated into the parties' agreement,
for which the employees otherwise would have been reimbursed by the
Internal Revenue Service.
(c) Pay travel expenses and per diem allowances 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 under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, to the extent that such expenses have not been
reimbursed by the National Treasury Employees Union.
(d) Provide Union representatives Antonio Ovalle and Frank Robinson
official time while they were engaged in representing the National
Treasury Employees Union, the employees' exclusive representative, in
collective bargaining negotiations between November 23 and 24, 1981,
including necessary travel time as occurred during the employees'
regular work hours and when they would otherwise have been in a work or
paid leave status, and make them whole for any annual leave they may
have utilized for this purpose.
(e) Post at its Austin and Houston District Offices a copy 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, or Deputy Commissioner,
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.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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 the Order.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
violation of section 7716(a)(1) and (8) by the Internal Revenue Service
for denying travel and per diem expenses under section 7131(a) of the
Statute, be, and it hereby is, dismissed.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges a
violation of section 7116(a)(1) and (8) of the Statute by the Austin and
Houston District Offices of the Internal Revenue Service, be, and it
hereby is, dismissed.
Issued, Washington, D.C. October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Authority has taken administrative notice of the Decision and
Order of the Panel cited above since the parties' stipulation failed to
incorporate the language of the Panel's Order.
(2) As was true of Respondents, the General Counsel's brief was
submitted before the Authority's interpretation of the Statute was
rejected by the Supreme Court in Bureau of Alcohol, Tobacco and Firearms
v. FLRA, 464 U.S. 89 (1983).
(3) If the Respondent Internal Revenue Service's position ultimately
had been sustained, however, it would not have been found in violation
of the Statute. See Office of Personnel Management, Washington, D.C.,
17 FLRA 302 (1985).
(4) Section 2430.2(b) of the Authority's Rules and Regulations
provides:
(b) A respondent in an unfair labor proceeding which has
prevailed in the proceeding, or in a significant and discrete
portion of the proceeding, and who otherwise meets the eligibility
requirements of this section, is eligible to apply for an award of
attorneys fees and other expenses allowable under the provisions
of Section 2430.4 of these rules.
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 interfere with, restrain, or coerce our employees in the
exercise of their rights assured by the Statute by failing and refusing
to cooperate in and comply with the Decision and Order of the Federal
Service Impasses Panel issued on December 24, 1980, Case No. 80 FSIP 68,
by failing to implement the provisions directed by the Panel.
WE WILL NOT fail and refuse to provide official time, 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, to Antonio Ovalle and Frank Robinson, or any other bargaining
unit employees, while engaged in representing the National Treasury
Employees Union, the employees' exclusive representative, in collective
bargaining negotiations.
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 comply with the Decision and Order of the Federal Service
Impasses Panel issued on December 24, 1980, in Case No. 80 FSIP 68,
which contained contractual provisions to be included in our negotiated
agreement with the National Treasury Employees Union, and will notify
the Union of such compliance in writing.
WE WILL make the National Treasury Employees Union whole for the
cost, if any, incurred in paying travel expenses and per diem allowances
to all bargaining unit employees who have submitted appropriate claims
for such payments under the terms of the contract provisions which the
Federal Service Impasses Panel ordered incorporated into the parties'
agreement for which the employees otherwise would have been reimbursed
by the Internal Revenue Service.
WE WILL pay travel expenses and per diem allowances 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 under the terms of the contract provisions
which the Federal Service Impasses Panel ordered incorporated into the
parties' agreement, to the extent that such expenses have not been
reimbursed by the National Treasury Employees Union.
WE WILL provide Union representatives Antonio Ovalle and Frank
Robinson official time while they were engaged in representing the
National Treasury Employees Union, the employees' exclusive
representative, in collective bargaining negotiations between November
23 and 24, 1981, including necessary travel time as occurred during the
employees' regular work hours and when they would otherwise have been in
a work or paid leave status, and make them whole for any annual leave
they may have utilized for this purpose.
(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, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority, whose address
is: 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose
telephone number is: (214) 767-4996.