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26:0674(83)CA
The decision of the Authority follows:
26 FLRA No. 83
DEPARTMENT OF THE AIR FORCE
SACRAMENTO AIR LOGISTICS CENTER
MCCLELLAN AIR FORCE BASE, CALIFORNIA
Respondent
and
DELMAR CALLAWAY, AN INDIVIDUAL
Charging Party
Case No. 9-CA-60242
DECISION AND ORDER
I. Statement of the Case
Ths unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
upon a stipulation enetered into by the Respondent, the Charging Party
and the General Counsel. The complaint issued by the General Counsel
alleges that the Respondent violated section 7116(a)(1) and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) by
failing and refusing to comply with section 7131(c) of the Statute.
More specifically, the General Counsel contends that the Respondent
committed the alleged violation by failing and refusing to grant
employee DelMar Callaway, the Charging Party, official time and travel
and per diem expenses to appear as a witness in an unfair labor practice
hearing before an Administrative Law Judge of the Authority pursuant to
a subpoena issued by the Regional Director of Region VIII of the
Authority. We find that the Respondent violated the Statute as alleged.
II. Background
The American Federation of Government Employees (AFGE) is the
exclusive representative of a consolidated bargaining unit of employees
of the Air Force Logistics Command (AFLC). AFGE Local 1857 represents
the bargaining unit employees at the Sacramento Air Logistics Center,
McClellan Air Force Base, California. Mr DelMar Callaway, the Charging
Party, is a bargaining unit employee who has been employed at the
Sacramento Center since about October 1985.
Prior to October 1985, Mr. Callaway was the President of AFGE
Interdepartmental Local 3854, which represents a different unit of
employees at March Air Force Base, California, including employees of
the 22nd Combat Support Group (SAC). In September 1985, Mr. Callaway,
as President of Local 3854, filed an unfair labor practice charge
against the SAC Group. On January 30, 1986, after Mr. Callaway had been
reassigned to McClellan AFB, the Regional Director of Region VIII of the
Authority issued a complaint in that case, 22nd Combat Support Group
(SAC), March Air Force Base, California and American Federation of
Government Employees, Interdepartmental Local 3854, AFL-CIO, Case No.
8-CA-50564. On March 17, 1986, the Regional Director issued a subpoena
pursuant to section 2429.7 of the Authority's Rules and Regulations,
directing Mr. Callaway to appear before an Administrative Law Judge of
the Authority at a hearing in the case in Los Angeles, California, on
April 15, 1986. Counsel for the General Counsel requested that Mr.
Callaway meet with him on April 14 to prepare for the hearing. Counsel
for the General Counsel also discussed the reasons for Mr. Callaway's
participation in the hearing with Counsel for the Air Force.
On March 20, Mr. Callaway informed his supervisor of the the subpoena
and, by memorandum of the same date, requested travel orders authorizing
payment of travel expenses to Los Angeles on April 14 and from Los
Angeles to Sacramento on April 16, payment of per diem expenses, as well
as official time for the period. By memorandum of April 1, the
Respondent denied Mr. Callaway's request but informed him that he would
be granted administrative leave for the day of the hearing, April 15,
1986.
After his request was denied, Mr. Callaway requested leave from April
13 through April 17, 1986. Except for April 15, for which
administrative leave was granted, Mr. Callaway requested that he be
granted leave without pay for this period. The Respondent approved Mr.
Callaway's leave request.
By letter of April 9, Counsel for the General Counsel reminded
Counsel for the Air Force of Mr. Callaway's scheduled participation as a
witness in the hearing, and asked Counsel for the Air Force to notify
the necessary supervisors and management officials that witnesses are
entitled to official time for preparation for the hearing and the
hearing itself, and that arrangements for payment of travel and per diem
expenses should be made for Mr. Callaway. A copy of this letter was
sent to the Respondent.
On Friday, April 10, Mr. Callaway traveled to Los Angeles. On Monday,
April 14, Mr. Callaway and Counsel for the General Counsel discussed Mr.
Callaway's testimony. On April 15, Mr. Callaway appeared at the
hearing. He apparently returned to Sacramento on April 16. After
returning from Los Angeles, Mr. Callaway submitted a voucher to the
Respondent for travel and per diem expenses incurred in the trip to Los
Angeles. The Respondent refused to reimburse Mr. Callaway for the
expenses. Mr. Callaway was charged 16 hours of leave without pay for
his absence from work on April 14 and 16, 1986.
III. Positions of the Parties
The Respondent contends that since the unfair labor practice hearing
in Case No. 8-CA-50564 involved a different Air Force command and a
different bargaining unit, the Respondent had no obligation to pay Mr.
Callaway's travel and per diem expenses or to grant him official time.
Further, the Respondent contends that, while the Authority has
promulgated a regulation pertaining to official time and travel and per
diem expenses for participating in proceedings before the Authority,
there is no statutory jurisdiction or authority to support such a
regulation. The Respondent also argues that the amount of official time
requested, which included time for travel and time for preparation with
Counsel for the General Counsel, was excessive and unwarranted.
The General Counsel contends that the Respondent's refusal to grant
Mr. Callaway official time and to pay his travel and per diem expenses
constituted a failure to comply with section 7131(c) of the Statute and
section 2429.13 of the Authority's Rules and Regulations and a violation
of section 7116(a)(1) and (8) of the Statute. In support of this
contention, the General Counsel argues that this case is virtually
identical to Air Force Logistics Command, McClellan Air Force Base,
California 24 FLRA No. 33 (1986), petition for review filed sub nom. Air
Force Logistics Command, McClellan Air Force Base, California v. FLRA,
No. 87-1039 (D.C. Cir. Jan. 23, 1987), which involved the same
Respondent and essentially the same factual situation as the present
case, and in which the Authority found that the Respondent committed an
unfair labor practice.
IV. Analysis and Conclusions
We agree with the General Counsel that this case is virtually
identical to Air Force Logistics Command, McClellan Air Force Base, 24
FLRA No. 33. In our decision in that case, we found that the Respondent
violated section 7131(c) of the Statute and section 2429.13 of the
Authority's Rules and Regulations by refusing to grant an employee
official time and travel and per diem expenses for her appearance at an
unfair labor practice hearing pursuant to a subpoena issued by a
designated agent of the Authority. We concluded that the Respondent's
refusal constituted a violation of section 7116(a)(1) and (8) of the
Statute. In reaching that decision, based in part on our reasoning in
Department of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 24 FLRA No. 26 (1986), petition
for review filed sub nom. Department of the Air Force v. FLRA, No.
87-1038 (D.C. Cir. Jan. 23, 1987), we rejected arguments that section
2429.13 of the Authority's Rules and Regulations is not in accordance
with law and that an agency is not obligated to grant official time to
one of its employees to testify at an unfair labor practice proceeding
in a matter in which the agency is not a party and has no interest.
Based on our decisions in McClellan Air Force Base and
Wright-Patterson Air Force Base, we also reject the Respondent's similar
arguments in this case. We likewise reject the Respondent's argument
that Mr. Callaway was not entitled to official time for the time spent
in preparation with the General Counsel for the hearing and for the time
spent in travel. Section 2429.13 of the Authority's Rules and
Regulations, which implements section 7131(c) of the Statute, provides:
"If the participation of any employee in any phase of any proceeding
before the Authority . . . is deemed necessary by the Authority, the
General Counsel . . . or other agent of the Authority designated by the
Authority, such employee shall be granted official time for such
participation, including necessary travel time . . . ." Counsel for the
General Counsel, a designated agent of the Authority, determined that
Mr. Callaway's participation in Case No. 8-CA-50564, including
preparation time on April 14, was necessary. The Respondent fails to
establish that official time for April 14 to enable Mr. Callaway to
cooperate with Counsel for the General Counsel in preparation for the
hearing and for necessary travel time to return to Sacramento on April
16 is not covered by section 2429.13. We therefore conclude that the
Respondet's refusal to grant Mr. Callaway official time and travel and
per diem expenses constituted a violation of section 7116(a)(1) and (8)
of the Statute. In that regard, we note that the record is silent on
existing procedures, if any, within the Department of the Air Force by
which the Respondent in this case may be reimbursed for the expenses
involved by March Air Force Base, the Respondent in Case No. 8-CA-50564.
We leave this matter to the resolution of the two Respondents and the
Department of the Air Force.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Department of the Air
Force, Sacramento Air Logistics Center, McClellan Air Force Base,
California shall:
1. Cease and desist from:
(a) Denying official time to its employees for attendance and
participation in unfair labor practice proceedings before the Federal
Labor Relations Authority when and to the extent that such attendance
and participation has been deemed necessary by a designated agent of the
Authority.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Grant DelMar Callaway official time for April 14, 15 and 16,
1986, and, upon submission of a properly documented voucher, reimburse
him for appropriate travel and per diem expenses, which were incurred in
connection with his appearance pursuant to a subpoena at a hearing of
the Federal Labor Relations Authority, and make him whole for the time
he was charged leave without pay for that purpose.
(b) Post at its facilities at the Department of the Air Force,
Sacramento Air Logistics Center, McClellan Air Force Base, California,
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 Commanding Officer of the Sacramento Air Logistics Center,
McClellan Air Force Base, California, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region Suite 220, San
Francisco, California 94103 in writing within 30 days from the date of
this Order, as to what steps have been taken to comply with this order.
Issued, Washington, D.C., April 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND 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 deny official time to our employees for participation in
unfair labor practice proceedings before the Federal Labor Relations
Authority when and to the extent that such participation has been deemed
necessary by a designated agent of the Authority.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL grant DelMar Callaway official time for April 14, 15 and 16,
1986, and, upon submission of a properly documented voucher, reimburse
him for appropriate travel and per diem expenses, which were incurred in
connection with his required appearance pursuant to a subpoena at a
hearing of the Federal Labor Relations Authority, and make him whole for
the time he was charged with leave without pay for that 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 for the Federal Labor Relations Authority, Region IX whose
address is: 901 Market Street, Suite 220, San Francisco, California
94103-9991, and whose telephone number is: (415) 995-5000.