Bureau of Alcohol, Tobacco and Firearms, Western Region, Department of the Treasury, San Francisco, California (Respondent) and National Treasury Employees Union, Chapter 81 (Charging Party)
[ v04 p288 ]
04:0288(40)CA
The decision of the Authority follows:
4 FLRA No. 40
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WESTERN REGION
DEPARTMENT OF THE TREASURY,
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 81
Charging Party
Case No. 9-CA-93
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS
AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
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 (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDIN8 THE RESPONDENT'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS, TO THE EXTENT CONSISTENT HEREWITH.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO,
CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO DONALD PRUETT OR ANY AGENCY
EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 81, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION
- AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL
TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS
DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD
OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING
ACTIVITY OR AGENCY.
(B) IN ANY LIKE OR RELATED MATTER, 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 DONALD PRUETT OFFICIAL TIME FOR THE
PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON FEBRUARY 23, 1979, AND
MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE, AND UPON
SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO DONALD PRUETT WHATEVER
TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY
BUSINESS WOULD BE ENTITLED.
(B) POST AT ITS VARIOUS OFFICES IN THE WESTERN REGION WHEREIN UNIT
EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED NOTICE MARKER "APPENDIX."
COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR
REGION 9, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE
POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY IT
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) NOTIFY THE 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., SEPTEMBER 29, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 FAIL OR REFUSE TO PROVIDE TO DONALD PRUETT OR ANY AGENCY
EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 81, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION
- AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL
TIME FOR SUCH PARTICIPATION INCLUDING NECESSARY TRAVEL TIME AS OCCURS
DURING THE EMPLOYEE'S REGULAR WORK HOURS AND WHEN THE EMPLOYEE WOULD
OTHERWISE BE IN A WORK OR PAID LEAVE STATUS. IN ADDITION, NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING
ACTIVITY OR AGENCY.
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 DONALD PRUETT OFFICIAL TIME FOR
THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON FEBRUARY 23, 1979, AND
MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE AND, UPON
SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO DONALD PRUETT WHATEVER
TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY
BUSINESS WOULD BE ENTITLED.
(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, REGION 9, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 450 GOLDEN GATE AVENUE, ROOM 11408, P.O. BOX 36016, SAN
FRANCISCO, CA 94102, AND WHOSE TELEPHONE NUMBER IS (415) 556-8105.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MICHAEL SITCOV, ESQUIRE
FOR THE RESPONDENT
STEPHANIE ARTHUR, ESQUIRE
FOR THE GENERAL COUNSEL
DAVID HANDSHER, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS MATTER AROSE UNDER THE PROVISIONS OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET
SEQ., (HEREIN REFERRED TO AS THE STATUTE). ESSENTIALLY, THE CASE
INVOLVES WHETHER RESPONDENT IS OBLIGATED UNDER THE STATUTE TO GRANT
OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES TO AN EMPLOYEE-UNION
REPRESENTATIVE RELATIVE TO HIS PARTICIPATION IN COLLECTIVE BARGAINING
NEGOTIATIONS WITH THE RESPONDENT.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED ON JUNE 21, 1979, THE
GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY, BY THE
REGIONAL DIRECTOR FOR REGION 9, ISSUED A COMPLAINT AND NOTICE OF HEARING
ON JANUARY 29, 1980, ALLEGING THAT THE BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WESTERN REGION, AND ACTIVITY WITHIN THE DEPARTMENT OF THE
TREASURY, ENGAGED IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF
SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO GRANT TO
DONALD PRUETT, A REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 81, (THE UNION) OFFICIAL TIME IN WHICH TO ENGAGE IN
NEGOTIATIONS OVER THE IMPACT AND IMPLEMENTATION OF RESPONDENT'S
PROPOSALS CONCERNING AN OFFICE RELOCATION. /1/ RESPONDENT DENIED THE
COMMISSION OF ANY UNFAIR LABOR PRACTICE AND A HEARING BEFORE THE
UNDERSIGNED WAS CONDUCTED ON FEBRUARY 27, 1980.
AT THE HEARING ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED
FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND CROSS EXAMINE
WITNESSES. BRIEFS WERE FILED BY RESPONDENT AND COUNSEL FOR THE GENERAL
COUNSEL.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
AT ALL MATERIAL TIMES THE UNION HAS BEEN THE EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE FOR AN APPROPRIATE UNIT OF RESPONDENT'S
EMPLOYEES. HEADQUARTERS FOR RESPONDENT'S WESTERN REGION IS APPARENTLY
LOCATED IN SAN FRANCISCO, CALIFORNIA, AND THE REGION IS COMPOSED OF
VARIOUS SATELLITE OFFICES, INCLUDING AREA OFFICES AND POST OF DUTY
OFFICES.
BY LETTER DATED NOVEMBER 21, 1978, RESPONDENT NOTIFIED THE UNION'S
PRESIDENT, JOSEPH SHEEAN, OF SAN FRANCISCO, THAT IT INTENDED TO RELOCATE
THE LODI, CALIFORNIA AREA OFFICE TO SACRAMENTO, CALIFORNIA, AND
ESTABLISH A REDUCED POST OF DUTY OFFICE IN LODI. IT WAS ANTICIPATED
THAT THE ACTION WOULD REQUIRE RELOCATING NINE EMPLOYEES FROM LODI TO
SACRAMENTO. UNION PRESIDENT SHEEAN RESPONDED ON DECEMBER 1, 1978,
ADVISING RESPONDENT THAT THE UNION WISHED TO NEGOTIATE THE DECISION TO
MOVE OR, ALTERNATIVELY, THE IMPACT THE MOVE WOULD HAVE ON BARGAINING
UNIT EMPLOYEES. THE UNION NAMED DONALD PRUETT, A STEWARD IN
RESPONDENT'S FRESNO AREA OFFICE WHO LIVED IN MADERA, CALIFORNIA, TO
REPRESENT IT IN THE MATTER.
BY LETTER DATED JANUARY 4, 1979, PRUETT INFORMED RESPONDENT OF THE
UNION'S DESIRE TO NEGOTIATE REGARDING "THE CONDITION AND SUITABILITY OF
THE FACILITIES TO BE USED BY BARGAINING UNIT MEMBERS . . . " AS WELL AS
THE OPTIONS AVAILABLE TO UNIT EMPLOYEES WHO DID NOT VOLUNTEER FOR
REASSIGNMENT OR WHO VOLUNTEERED BUT CHOSE NOT TO MOVE THEIR RESIDENCES.
/2/
RESPONDENT DECIDED THAT SINCE PRUETT AND RESPONDENT'S OWN CHIEF OF
FIELD OPERATIONS, THOMAS CRONE, HAD NOT YET SEEN THE FACILITIES UNDER
DISCUSSION, IT WOULD BE TO EVERYONE'S BEST INTEREST TO CONDUCT THE
NEGOTIATIONS AND VIEW THE VARIOUS NEW FACILITIES AT THE SAME TIME.
ACCORDINGLY, MARDELL KEEHAN, PERSONNEL SPECIALIST FOR RESPONDENT,
TELEPHONED UNION REPRESENTATIVE PRUETT AND INFORMED HIM THAT THE PARTIES
WOULD MEET AT 9:30 A.M. ON FEBRUARY 23, 1979, AT THE SITE OF THE NEW
SACRAMENTO AREA OFFICE. /3/ NOTHING WAS SAID AT THE TIME RELATIVE TO A
SPECIFIC FORMAT, TIME OR LOCATION FOR NEGOTIATIONS ON THE ISSUES RAISED
BY THE REARRANGEMENT OF THE OFFICES.
ON FEBRUARY 21, 1979, PRUETT CALLED BOTH PERSONNEL SPECIALIST KEEHAN
AND CHIEF OF FIELD OPERATIONS CRONE AND ASKED THEM IF THE FEBRUARY 23
MEETING COULD BE INCORPORATED WITH A "QUARTERLY" MEETING UNDER THE
COLLECTIVE BARGAINING AGREEMENT OR WOULD HE BE PERMITTED TO TAKE "BANK
TIME" FOR THE PERIOD. /4/ PRUETT'S REQUEST WAS DENIED AND HE WAS TOLD
THAT HE WOULD HAVE TO TAKE EITHER ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR
THE MEETING. /5/
AS SUGGESTED BY RESPONDENT, THE PARTIES MET ON FEBRUARY 23, 1979,
AROUND 9:30 A.M. AT THE NEW SACRAMENTO AREA OFFICE. /6/ PRUETT
REPRESENTED THE UNION AND RESPONDENT WAS REPRESENTED BY KEEHAN, CRONE
AND TWO OTHER MANAGEMENT EMPLOYEES. THE GROUP EXAMINED THE FUTURE WORK
SPACE WHICH, AT THE TIME, WAS AN OPEN AREA ALTHOUGH THE FLOOR WAS MARKED
WITH TAPE FOR WALL PARTITIONS AND PHONE OUTLETS. THE CAFETERIA
FACILITIES WERE EXAMINED AND THE PARTIES DISCUSSED RELATED MATTERS SUCH
AS THE MANNER IN WHICH WALLS WOULD BE CONSTRUCTED, THE FUTURE LOCATION
OF WORK DESKS AND ACCESS TO REST ROOMS. PRUETT INDICATED THAT THE WORK
AREA WAS ACCEPTABLE BUT EXPRESSED DISSATISFACTION WITH PARKING
FACILITIES AND MANA8EMENT REPLIED THAT THE PARKING ARRANGEMENTS AT
SACRAMENTO WERE, NEVERTHELESS, BETTER THAN A NUMBER OF OTHER OFFICES.
AFTER ABOUT AN HOUR AT THE SACRAMENTO LOCATION THE GROUP PROCEEDED TO
LODI WHERE THEY HAD LUNCH. AFTER LUNCH THE PARTIES MET AT THE NEW LODI
POST OF DUTY OFFICE. THE PREMISES WERE EXAMINED AND THE COLLOQUY THAT
OCCURRED WAS MUCH THE SAME AS THAT WHICH TRANSPIRED AT SACRAMENTO. THE
GROUP REMAINED AT THE LODI OFFICE BETWEEN THIRTY AND FORTY-FIVE MINUTES
BEFORE ADJOURNING TO THE OLD LODI AREA OFFICE.
THE SESSION AT THE OLD LODI AREA OFFICE ENCOMPASSED A CONSIDERATION
OF THE VARIOUS PROPOSALS WHICH THE UNION MADE IN ITS LETTER TO
RESPONDENT DATED JANUARY 4, 1979, SUPRA. PRUETT AGAIN EXPRESSED
SATISFACTION WITH THE NEW FACILITIES EXCEPT FOR THE PARKING ARRANGEMENTS
AT SACRAMENTO. HOWEVER, RESPONDENT MAINTAINED THAT NO CLOSER PARKING
WAS AVAILABLE. DURING THE MEETING THE PARTIES ALSO DISCUSSED EXCUSING
LATE ARRIVAL OF EMPLOYEES AT THE NEW SACRAMENTO AREA OFFICE WHILE
EMPLOYEES WERE ADJUSTING THEIR COMMUTING SCHEDULES AND THE JOB
ASSIGNMENTS OF TWO EMPLOYEES WHO WERE INVOLUNTARILY TRANSFERRED TO
SACRAMENTO. AT THE CONCLUSION OF THE MEETING, WHICH LASTED
APPROXIMATELY AN HOUR AND A HALF, PRUETT RETURNED TO HIS HOME IN MADERA
AND KEEHAN AND CRONE DROVE BACK TO THEIR RESIDENCES IN THE SAN FRANCISCO
AREA. /7/
BY LETTER TO PRUETT DATED MARCH 8, 1979, RESPONDENT SUMMARIZED THE
DECISIONS MADE AT THE FEBRUARY 23, MEETING, AS FOLLOWS:
"ON FEBRUARY 23, 1979, THE IMPACT OF THE ABOLISHMENT OF THE LODI AREA
OFFICE AND THE
ESTABLISHMENT OF THE SACRAMENTO AREA OFFICE WAS DISCUSSED IN THE
CONTEXT OF THE THREE ITEMS
LISTED IN YOUR LETTER DATED JANUARY 4, 1979. BASED ON THIS
DISCUSSION THE FOLLOWING DECISIONS
WERE MADE:
"1. ALL PARTIES AGREED THAT THE NEW SACRAMENTO AND LODI FACILITIES
ARE ACCEPTABLE. AS WAS
INDICATED DURING THE MEETING, THE SACRAMENTO PARKING FACILITIES ARE
THE CLOSEST THAT COULD BE
OBTAINED AT THIS TIME. MANAGEMENT WILL CONTINUE TO TRY TO OBTAIN
CLOSER PARKING AS SPACE
BECOMES AVAILABLE.
"2. ARTICLE 16, SECTION 6 PROVIDES THAT A SUPERVISOR FOR ADEQUATE
REASONS, MAY EXCUSE AN
EMPLOYEE WITHOUT CHARGE TO LEAVE WHO IS UNAVOIDABLY OR NECESSARILY
ABSENT FOR LESS THAN ONE
HOUR OR TARDY; HOWEVER, ALL EMPLOYEES WILL BE EXPECTED TO ADJUST
THEIR COMMUTE SCHEDULES TO
ARRIVE AT THEIR NEW WORK LOCATIONS ON TIME.
"THE AREA SUPERVISOR WILL HOLD A GROUP MEETING WITH ALL EMPLOYEES TO
DISCUSS THESE MATTERS
AND ANY RELATED QUESTIONS THAT EMPLOYEES MIGHT HAVE.
"3. THE AREA SUPERVISOR WILL HOLD INDIVIDUAL DISCUSSIONS (OR JOINT
DISCUSSIONS IF
PREFERRED BY THE EMPLOYEES) WITH JOHN THALKEN AND RICHARD BILGER.
THE SUPERVISOR WILL
INDICATE REALISTIC, ANTICIPATED ASSIGNMENTS FOR THE TWO INSPECTORS.
ALSO, HE WILL INFORM THEM
THAT, AS IN THE CASE FOR ANY ATF EMPLOYEE, THEY MAY APPLY FOR
CONSIDERATION FOR ANY ANNOUNCED
VACANCY."
PRUETT ACKNOWLEDGED AT THE HEARING THAT RESPONDENT'S MARCH 8 SUMMARY,
ABOVE, ACCURATELY REFLECTS THE AGREEMENTS REACHED BY THE PARTIES ON
FEBRUARY 23.
ISSUES
COUNSEL FOR THE GENERAL COUNSEL CONTENDS THAT THROUGHOUT FEBRUARY 23,
1979, THE PARTIES WERE ENGAGED IN COLLECTIVE BARGAINING NEGOTIATIONS AND
UNDER THE PRINCIPLES ANNOUNCED BY THE FEDERAL LABOR RELATIONS AUTHORITY
IN INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, (DECEMBER 19, 1979),
PRUETT WAS ENTITLED TO OFFICIAL TIME, TRAVEL AND PER DIEM EXPENSES
INCURRED IN CONNECTION WITH THE NEGOTIATIONS.
RESPONDENT ACKNOWLEDGES THAT NEGOTIATIONS ON IMPACT OF THE OFFICE
RELOCATIONS OCCURRED ON FEBRUARY 23, 1979. HOWEVER, RESPONDENT CONTENDS
THAT PRUETT IS NOT ENTITLED TO BE 8RANTED OFFICIAL TIME FOR ANY PART OF
FEBRUARY 23, NOR ENTITLED TO ANY TRAVEL OR PER DIEM EXPENSES.
RESPONDENT ARGUES THAT:
1. THE GUIDANCE AND INTERPRETATION CONTAINED IN 2 FLRA NO. 31 IS
ARBITRARY AND CAPRICIOUS, AN ABUSE OF DISCRETION AND CONSTITUTES THE
ESTABLISHMENT OF A POLICY WHICH IS BEYOND THE STATUTORY AUTHORITY OF THE
AUTHORITY.
2. THE CASE HEREIN WAS INITIATED PRIOR TO JANUARY 11, 1979, THE
EFFECTIVE DATE OF THE STATUTE, AND THE POLICY CONTAINED IN 2 FLRA NO.
31, ENUNCIATED IN DECEMBER 1979, SHOULD NOT APPLY RETROACTIVELY TO
GOVERN THE INSTANT CASE. ACCORDINGLY, RESPONDENT CONTENDS THAT THE
SITUATION HEREIN SHOULD BE GOVERNED BY EXECUTIVE ORDER 11491, AS
AMENDED, UNDER WHICH OFFICIAL TIME WOULD NOT HAVE BEEN REQUIRED FOR THE
FEBRUARY 23, 1979, NEGOTIATIONS.
3. ON THE FACTS OF THE CASE " . . . LITTLE, IF ANY, TIME SPENT
DURING (FEBRUARY 23) WOULD QUALIFY AS NEGOTIATIONS, AND THE GENERAL
COUNSEL HAS FAILED TO ESTABLISH HOW MUCH TIME SHOULD BE GRANTED, IF
ANY." RESPONDENT URGES THAT SUBSTANTIALLY ALL OF THE ACTIVITIES OF
FEBRUARY 23 PERTAINED TO GATHERING INFORMATION IN PREPARATION FOR
NEGOTIATIONS AND NOT THE NEGOTIATIONS THEMSELVES. FURTHER, ACCORDING TO
RESPONDENT, PRUETT'S CLAIM IS NOT VALID IN THAT NO TRAVEL VOUCHER WAS
EVER SUBMITTED CLAIMING TRAVEL AND PER DIEM EXPENSES FOR FEBRUARY 23.
4. THE PAYMENT OF PER DIEM AND TRAVEL EXPENSES PURSUANT TO 2 FLRA
NO. 31 IS CONTRARY TO LAW IN THAT MONEY HAS NOT BEEN SPECIFICALLY
APPROPRIATED FOR THIS PURPOSE.
DISCUSSION AND CONCLUSIONS
IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, THE AUTHORITY
CONCLUDED THAT THE OFFICIAL TIME PROVISIONS OF SECTION 7131(A) OF THE
STATUTE ENCOMPASS ALL NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT
BETWEEN AN EXCLUSIVE REPRESENTATIVE AND AN AGENCY. /8/ IN REACHING THIS
CONCLUSION THE AUTHORITY RELIED ON THE LITERAL LANGUAGE AND LEGISLATIVE
HISTORY OF SECTION 7131(A) AS SUPPORTED BY THE EXPRESS FINDINGS AND
PURPOSES OF THE STATUTE REFLECTED IN SECTION 7101(A), WHICH STATES THAT
"LABOR ORGANIZATIONS AND COLLECTIVE BARGAINING IN THE CIVIL SERVICE ARE
IN THE PUBLIC INTEREST." THE AUTHORITY FURTHER CONCLUDED THAT 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."
AS AN ADMINISTRATIVE LAW JUDGE I AM CONSTRAINED TO FOLLOW THE
AUTHORITY'S PRONOUNCEMENTS. THEREFORE, TO ADDRESS ARGUMENTS WHICH
ATTACK A STATUTORY INTERPRETATION MADE BY THE AUTHORITY OR QUESTION THE
AUTHORITY'S POWER OR JUDGMENT IN TREATING A MATTER WOULD SERVE NO USEFUL
PURPOSE, ESPECIALLY WHERE, AS HERE, THE AUTHORITY'S POSITION IS CLEAR
AND UNMISTAKABLE. ACCORDINGLY, I REJECT RESPONDENT'S ARGUMENT
CHALLENGING THE AUTHORITY'S DECISION IN 2 FLRA NO. 31 AS BEING ARBITRARY
AND CAPRICIOUS, AN ABUSE OF DISCRETION AND BEYOND ITS STATUTORY
AUTHORITY. SIMILARLY, I REJECT RESPONDENT'S CONTENTION THAT THE PAYMENT
OF PER DIEM AND TRAVEL EXPENSES, AS REQUIRED BY THE AUTHORITY IN 2 FLRA
NO. 31, IS CONTRARY TO LAW.
FURTHER, I FIND NO MERIT IN RESPONDENT'S ARGUMENT THAT THE CASE
HEREIN WAS INITIATED PRIOR TO JANUARY 11, 1979, THE EFFECTIVE DATE OF
THE STATUTE, AND THEREFORE A FINDING OF VIOLATION OF THE STATUTE HEREIN
WOULD INVOLVE RETROACTIVE APPLICATION OF THE STATUTE. TRUE, THE UNION'S
REQUEST TO NEGOTIATE WAS MADE IN ITS LETTER OF DECEMBER 1, 1979, SUPRA,
AND THE UNION SUBMITTED ITS PROPOSALS ON JANUARY 4, 1979, SUPRA.
HOWEVER THE REQUEST AND REFUSAL TO GRANT OFFICIAL TIME OR EXPENSES TO
THE UNION'S REPRESENTATIVE DID NOT OCCUR UNTIL FEBRUARY 21, 1979, AND
THEREAFTER. IN MY VIEW IT WAS THE DEMAND AND REFUSAL TO GRANT PRUETT
OFFICIAL TIME TO ENGAGE IN NEGOTIATIONS THAT INITIATED THE CASE HEREIN.
THE STATUTE WAS IN EFFECT ON THE DATES OF THE DEMAND AND REFUSAL AND THE
AUTHORITY, BY ITS DECEMBER 19, 1979, INTERPRETATION AND GUIDANCE ON
OFFICIAL TIME, CREATED NO NEW RIGHTS BUT MERELY GAVE ITS VIEW ON THE
SCOPE AND MEANIN8 OF SECTION 7131 OF THE STATUTE, AS ENACTED. THUS, I
CONCLUDE THAT THE EFFECT OF THE AUTHORITY'S STATEMENT ON THIS MATTER
GOVERNS ALL SITUATIONS INVOLVING OFFICIAL TIME FOR NEGOTIATIONS WHICH
OCCURRED AFTER JANUARY 11, 1979, THE EFFECTIVE DATE OF THE STATUTE.
I ALSO REJECT RESPONDENT'S CONTENTION THAT "LITTLE, IF ANY, TIME
SPENT DURING FEBRUARY 23, 1979 WOULD QUALIFY AS NEGOTIATIONS . . . "
TESTIMONY FROM RESPONDENT'S OWN WITNESSES, DOCUMENTARY EVIDENCE OF
RECORD, MOST NOTABLY RESPONDENT'S MARCH 8, 1979 LETTER TO THE UNION,
SUPRA, AND ADMISSIONS BY RESPONDENT IN ITS BRIEF BELIEVE A CLAIM THAT NO
NEGOTIATIONS WITHIN THE MEANING OF THE STATUTE TOOK PLACE ON FEBRUARY
23. INDEED, RESPONDENT'S WITNESSES TESTIFIED THAT THE LAST ONE AND A
HALF HOUR, OR TWENTY-FIVE PERCENT OF THE DAY'S MEETING WHICH BEGAN AT
9:30 A.M. AND CONCLUDED AT 3:30 P.M. ON FEBRUARY 23, 1979, WAS SPENT ON
IMPACT NEGOTIATIONS.
MOREOVER, I CONCLUDE THAT THE ENTIRE FEBRUARY 23 ACTIVITIES OF THE
PARTIES CONSTITUTED NEGOTIATIONS WITHIN THE MEANING OF SECTION 7131(A)
OF THE STATUTE WHEN CONSIDERED IN ALL THE CIRCUMSTANCES OF THE
SITUATION. THUS, RESPONDENT'S LETTER TO THE UNION OF FEBRUARY 21,
SUPRA, SETTING THE DATE FOR THE NEGOTIATIONS, ALTHOUGH STATING THAT
NEGOTIATIONS WOULD OCCUR AT THE OLD LODI AREA OFFICE, DID NOT ESTABLISH
A TIME WHEN THE NEGOTIATIONS WOULD COMMENCE. NOR CAN THE LETTER BE
FAIRLY INTERPRETED TO INDICATE THAT NO DISCUSSIONS TANTAMOUNT TO
NEGOTIATIONS WOULD TAKE PLACE BEFORE THE END OF THE TOUR OF THE NEW
FACILITIES. RESPONDENT ITSELF DECIDED THAT IT WOULD BE TO EVERYONE'S
BEST INTEREST TO CONDUCT THE NEGOTIATIONS AND VIEW THE VARIOUS NEW
FACILITIES AT THE SAME TIME. RESPONDENT SET THE PLACE WHERE THE DAY'S
ACTIVITIES WERE TO BEGIN WITHOUT DELIMITING IN ANY WAY WHAT WOULD BE
OPEN FOR DISCUSSION AT ANY TIME. WHILE THE ACTIVITIES OF THE PARTIES AT
THE NEW SACRAMENTO AREA OFFICE AND THE NEW LODI POST OF DUTY OFFICE
INVOLVED, IN LARGE MEASURE, BOTH PARTIES GATHERING INFORMATION ABOUT THE
PHYSICAL CONDITION AND SUITABILITY OF THE TWO SITES, THERE WAS SOME
DISCUSSION AT THESE LOCATIONS WITH REGARD TO PRUETT'S ACKNOWLEDGEMENT
THAT THE BUILDING LAYOUTS WERE ACCEPTABLE TO THE UNION AND HIS CONCERN
WITH THE PARKING ARRANGEMENT AT SACRAMENTO.
ALSO, IT IS NOTED THAT PRESPONDENT'S LETTERS TO THE UNION OF FEBRUARY
27 AND MARCH 21, 1979, SUPRA, REJECTING PRUETT'S CLAIM FOR OFFICIAL
TIME, WHILE ACKNOWLEDGING THAT NEGOTIATIONS OCCURRED, DID NOT SEEK TO
SEGREGATE PORTIONS OF FEBRUARY 23 AS NEGOTIATING OR NON-NEGOTIATING
TIME. NOR DID RESPONDENT'S LETTER OF MARCH 8, SUMMARIZING THE DECISIONS
REACHED ON FEBRUARY 23, INDICATE THAT THE PARTIES ONLY ENGAGED IN
NEGOTIATIONS AT THE OLD LODI AREA OFFICE AT THE END OF THAT DAY.
INDEED, IT IS APPARENT THAT BOTH PARTIES BEFORE, DURING AND
IMMEDIATELY AFTER FEBRUARY 23, CONSIDERED THE DAY'S ACTIVITIES AND
DISCUSSIONS TO CONSTITUTE A CONTINUOUS PERIOD OF NEGOTIATION ON THE
OFFICE RELOCATIONS WITH THE FINAL SESSION OF THE DAY CULMINATING IN A
SPECIFIC AGREEMENT ON THE UNION'S PROPOSALS. ACCORDINGLY, CONSIDERING
THE TOTAL CONTEXT OF ALL THE CIRCUMSTANCES SURROUNDING THE FEBRUARY 23,
1979, MEETING, I CONCLUDE THAT THE ENTIRE DAY WAS SPENT IN THE PROCESS
OF NEGOTIATION WITHIN THE MEANING OF THE STATUTE.
WITH REGARD TO RESPONDENT'S POSITION THAT NO TRAVEL VOUCHER WAS
SUBMITTED BY PRUETT AND THEREFORE NO CLAIM OF VIOLATION OF THE STATUTE
CAN BE MAINTAINED, THE UNCONTESTED RECORD ON THIS MATTER REVEALS TWO
REQUESTS FOR OFFICIAL TIME AND FOUR SEPARATE REPLIES BY RESPONDENT'S
AGENTS THAT NO OFFICIAL TIME WOULD BE GRANTED TO PRUETT FOR THE FEBRUARY
23 NEGOTIATIONS. IT IS REASONABLE TO INFER THAT SINCE PRUETT WAS
CLEARLY AND REPEATEDLY INFORMED BY MANAGEMENT REPRESENTATIVES THAT
OFFICIAL TIME AND EXPENSES WOULD NOT BE FORTHCOMING, A VOUCHER
REQUESTING THE SAME WOULD NOT BE AUTHORIZED FOR PAYMENT. IT IS
AXIOMATIC THAT THE LAW DOES NOT REQUIRE A FUTILE GESTURE AND ON THE
STATE OF THE RECORD HEREIN, FURTHER CONSIDERATION OF RESPONDENT'S
ARGUMENT IS UNWARRANTED.
ACCORDINGLY, IN VIEW OF THE ENTIRE FOREGOING I FIND AND CONCLUDE THAT
BY ITS FAILURE AND REFUSAL TO PROVIDE UNION REPRESENTATIVE DONALD PRUETT
WITH OFFICIAL TIME AND WHATEVER TRAVEL AND PER DIEM EXPENSES HE MAY HAVE
BEEN ENTITLED TO WERE HE CONSIDERED TO BE ON OFFICIAL AGENCY BUSINESS
WHILE PERFORMING UNION REPRESENTATIONAL DUTIES ON FEBRUARY 23, 1979,
RESPONDENT FAILED AND REFUSED TO COMPLY WITH SECTION 7131 OF THE STATUTE
AND THEREBY VIOLATED SECTIONS 7116(A)(1) AND (8) OF THE STATUTE. /9/
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (8) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE
THE FOLLOWING:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL RULES AND
REGULATIONS, IT IS HEREBY ORDERED THAT BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO,
CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO DONALD PRUETT OR ANY AGENCY
EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 81, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION
- AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL
TIME AND WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN
OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED.
(B) IN ANY LIKE OR RELATED MATTER, 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 STATUTE:
(A) PROVIDE UNION REPRESENTATIVE DONALD PRUETT OFFICIAL TIME FOR THE
PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON FEBRUARY 23, 1979, AND
MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE, AND UPON
SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO DONALD PRUETT WHATEVER
TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY
BUSINESS WOULD BE ENTITLED.
(B) POST AT ITS VARIOUS OFFICES IN THE WESTERN REGION WHEREIN UNIT
EMPLOYEES ARE LOCATED, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX."
COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL DIRECTOR FOR
REGION 9, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE
POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF AND BE MAINTAINED BY IT
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) NOTIFY THE REGIONAL DIRECTOR FOR REGION 9, 450 GOLDEN GATE
AVENUE, ROOM 11409, P.O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS
TAKEN TO COMPLY HEREWITH.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: MAY 12, 1980
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL PROVIDE UNION REPRESENTATIVE DONALD PRUETT OFFICIAL TIME FOR
THE PERFORMANCE OF HIS REPRESENTATIONAL DUTIES ON FEBRUARY 23, 1979, AND
MAKE HIM WHOLE FOR THE ANNUAL LEAVE HE UTILIZED ON THAT DATE AND, UPON
SUBMISSION OF AN APPROPRIATE VOUCHER, PAY TO DONALD PRUETT WHATEVER
TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN OFFICIAL AGENCY
BUSINESS WOULD BE ENTITLED.
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO DONALD PRUETT OR ANY AGENCY
EMPLOYEE, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 81, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION
- AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT, OFFICIAL
TIME AND WHATEVER TRAVEL AND PER DIEM EXPENSES AN EMPLOYEE ENGAGED IN
OFFICIAL AGENCY BUSINESS WOULD BE ENTITLED.
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.
(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, REGION 9, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 450 GOLDEN GATE AVENUE, ROOM 11409, P.O. BOX 36016, SAN
FRANCISCO, CA 94102, AND WHOSE TELEPHONE NUMBER IS (415) 556-8150.
--------------- FOOTNOTES$ ---------------
/1/ THE COMPLAINT WAS AMENDED AT THE HEARING, WITHOUT OBJECTION, TO
REFLECT THAT "OFFICIAL TIME" INCLUDED THE PAYMENT OF TRAVEL AND PER DIEM
EXPENSES.
/2/ LODI IS APPROXIMATELY THIRTY-FOUR MILES FROM SACRAMENTO. RAND
MCNALLY ROAD ATLAS, 51ST ANNUAL EDITION, 1975, P. 16.
/3/ MARDELL KEEHAN WAS UNAVAILABLE TO TESTIFY AT THE HEARING
CONDUCTED ON FEBRUARY 27, 1980. THE PARTIES AGREED TO PRESENT MS.
KEEHAN'S TESTIMONY BY DEPOSITION WHICH WAS TAKEN ON MARCH 7, 1980.
ACCORDINGLY, THE DEPOSITION OF MARDELL KEEHAN IS HEREBY RECEIVED AS PART
OF THE RECORD HEREIN.
/4/ APPARENTLY THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION
AND RESPONDENT PROVIDED OFFICIAL TIME FOR UNION REPRESENTATIVES AT
"QUARTERLY" MEETINGS. IT IS ALSO APPARENT THAT USING "BANK TIME" WOULD
RESULT IN PRUETT REMAINING IN WORK STATUS DURING THE DAY.
/5/ THE TELEPHONE REPLYS WERE FOLLOWED UP WITH LETTERS TO THE UNION
UNION DATED FEBRUARY 27 AND MARCH 21, 1979, WHICH INDICATED THAT
RESPONDENT'S EMPLOYEES COULD NOT RECEIVE OFFICIAL TIME FOR MIDTERM
NEGOTIATIONS, THE LATTER STATING THAT RESPONDENT'S NATIONAL AND REGIONAL
LABOR RELATIONS STAFF ADVISED THAT EMPLOYEES DID NOT " . . . RECEIVE
TIME (I.E. OFFICIAL TIME, BANK TIME, ADMINISTRATIVE LEAVE, ETC.) OR
REIMBURSEMENT FOR ANY EXPENSES IN CONNECTION WITH MIDTERM NEGOTIATIONS."
ACCORDINGLY, PRUETT USED EIGHT HOURS ANNUAL LEAVE ON FEBRUARY 23, 1979.
/6/ THE FOLLOWING ACCOUNT IS A COMPOSITE OF THE TESTIMONY OF PRUETT,
KEEHAN AND CRONE. WHILE PRUETT'S OVERALL VERSION OF THE INCIDENTS WHICH
OCCURRED ON FEBRUARY 23 CORRESPONDS IN MANY RESPECTS WITH KEEHAN'S AND
CRONE'S TESTIMONY, I AM INCLINED TO FIND PRUETT'S RECOLLECTION TO BE
SOMEWHAT LESS RELIABLE. PRUETT'S TESTIMONY REGARDING THE DRIVING TIMES
FROM HIS HOME TO AND FROM THE MEETING PLACES RAISES QUESTIONS UNANSWERED
IN THE RECORD BUT WOULD SEEM TO SUPPORT RESPONDENT'S RECOLLECTION OF
WHERE THE PARTIES FIRST MET. FURTHER, RESPONDENT'S CORROBORATED
TESTIMONY AS TO THE ORDER IN WHICH THE FACILITIES WERE VISITED AND THAT
A DETAILED DISCUSSION CONCERNING THE UNION'S PROPOSALS OCCURRED ONLY
AFTER VISITING THE NEW SITES APPEARS TO BE MORE REASONABLE. THUS,
PRUETT TESTIFIED THAT THE UNION'S PROPOSALS WERE DISCUSSED IN DETAIL AT
THE FIRST LOCATION VISITED AND THE FINAL MEETING OF THE DAY WAS A "BRIEF
PROPOSING SESSION," THE DETAILS OF WHICH HE COULD NOT RECALL. KEEHAN
AND CRONE TESTIFIED THAT A DETAILED DISCUSSION OCCURRED AFTER ALL THE
FACILITIES HAD BEEN VISITED. IT WOULD SEEM THAT AN EXPRESSION OF FINAL
OPINION BY THE UNION ON THE "CONDITION AND SUITABILITY OF THE
FACILITIES" WOULD MOST LIKELY BE A MATTER WHICH WOULD BE RESERVED, AT
LEAST FROM AN OVERALL PERSPECTIVE, UNTIL AFTER THE NEW FACILITIES HAD
BEEN VISITED. MOREOVER, PRUETT'S TESTIMONY WAS OFTEN VAGUE AND
CONCLUSIONARY WHILE KEEHAN'S RESPONSES REFLECTED A MORE DETAILED
RECOLLECTION OF EVENTS. IN ANY EVENT, THERE IS NO REAL DISPUTE AS TO
WHAT WAS DISCUSSED ON FEBRUARY 23, ONLY WHERE AND WHEN THE CONVERSATIONS
TOOK PLACE.
/7/ PRUETT LEFT MADERA AT 6:15 A.M. AND RETURNED AT 5:45 P.M., ON
FEBRUARY 23, TRAVELING A TOTAL OF 303 MILES FOR THE TRIP.
/8/ SECTION 7131(A) PROVIDES, IN RELEVENT PART: "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 . . . DURING THE TIME THE EMPLOYEE
OTHERWISE WOULD BE IN A DUTY STATUS . . . ."
/9/ SECTIONS 7116(A)(1) AND (8) DECLARE IT TO BE AN UNFAIR LABOR
PRACTICE FOR ANY AGENCY: "(1) TO INTERFERE WITH, RESTRAIN, OR COERCE
ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS
CHAPTER . . . (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY
PROVISION OF THIS CHAPTER."