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10:0010(3)CA
The decision of the Authority follows:
10 FLRA No. 3
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 88
Charging Party
Case No. 5-CA-1290
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) WHEN IT REFUSED TO PROVIDE OFFICIAL TIME TO EMPLOYEES MARTIN
CONNELL, DONALD COLEMAN, CHARLES WILSON AND THOMAS WOODS TO PARTICIPATE
IN THE PRE-HEARING PREPARATION PHASE OF TWO UNFAIR LABOR PRACTICE
PROCEEDINGS BEFORE THE AUTHORITY (CASE NOS. 5-CA-591 AND 5-CA-968).
MESSRS. COLEMAN, CONNELL, WILSON AND WOODS ARE EMPLOYEES AT THE
RESPONDENT'S LOUISVILLE, KENTUCKY AREA OFFICE. COLEMAN AND CONNELL HAD
BEEN REQUESTED BY AN AUTHORITY FIELD ATTORNEY TO MEET WITH HER ON MAY 8,
1981 FOR THE PURPOSE OF PRE-HEARING PREPARATION INVOLVING CASE NO.
5-CA-591. THE EMPLOYEES REQUESTED OFFICIAL TIME TO ATTEND THE MEETING.
COLEMAN ALSO REQUESTED TRAVEL EXPENSES. ALTHOUGH THE REQUESTS WERE
DENIED BY THEIR SUPERVISORS, THEY WERE GRANTED ANNUAL LEAVE FOR THIS
PERIOD. COLEMAN, CONNELL, WILSON AND WOODS MADE A SIMILAR REQUEST FOR
OFFICIAL TIME TO MEET WITH AN AUTHORITY FIELD ATTORNEY ON AUGUST 6, 1981
FOR PRE-HEARING PREPARATION IN CONJUNCTION WITH CASE NO. 5-CA-968.
THESE REQUESTS WERE ALSO DENIED, AND ANNUAL LEAVE WAS GRANTED THE
EMPLOYEES FOR THIS PERIOD.
THE GENERAL COUNSEL ARGUES THAT, PURSUANT TO SECTION 7131(C) OF THE
STATUTE /1/ AND SECTION 2429.13 OF THE AUTHORITY'S RULES AND REGULATIONS
/2/ WHICH IMPLEMENTS THAT PROVISION OF THE STATUTE, THE FOUR EMPLOYEES
WERE ENTITLED TO OFFICIAL TIME TO ENGAGE IN PRE-HEARING PREPARATION
INASMUCH AS THE FIELD ATTORNEYS WHO HAD REQUESTED THEIR PARTICIPATION
WERE ACTING IN THE CAPACITY OF DESIGNEES OF THE GENERAL COUNSEL IN
DETERMINING THAT EACH PARTICIPATION WAS NECESSARY. THE RESPONDENT
ARGUES THAT NOTHING IN SECTION 7131 OF THE STATUTE OR IN ITS LEGISLATIVE
HISTORY REQUIRES THAT OFFICIAL TIME BE GRANTED EMPLOYEES FOR ACTIVITIES
SUCH AS THOSE INVOLVED HEREIN. RESPONDENT FURTHER CONTENDS THAT EVEN IF
THE STATUTE DOES REQUIRE THE GRANTING OF OFFICIAL TIME FOR SUCH PURPOSE
THE RECORD CONTAINS NO EVIDENCE TO ESTABLISH THAT PARTICIPATION BY THE
EMPLOYEES WAS NECESSARY. /3/
SECTION 7131(C) OF THE STATUTE (SUPRA NOTE 1) EMPOWERS THE AUTHORITY
TO MAKE DETERMINATIONS AS TO WHETHER EMPLOYEES PARTICIPATING IN
PROCEEDINGS BEFORE IT SHALL BE AUTHORIZED OFFICIAL TIME. /4/ THIS
LANGUAGE IN THE STATUTE HAS BEEN IMPLEMENTED BY THE AUTHORITY IN SECTION
2429.13 OF ITS RULES AND REGULATIONS (SUPRA NOTE 2). SEE INTERPRETATION
AND GUIDANCE, 2 FLRA 264, 270(1979). AS NOTED BY THE AUTHORITY IN
NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 5 FLRA NO. 105(1981) THAT
SECTION OF ITS RULES AND REGULATIONS, WHICH PROVIDES IN PART FOR THE
PARTICIPATION ON OFFICIAL TIME INCLUDING TRANSPORTATION AND PER DIEM, BY
ANY EMPLOYEE IN ANY PHASE OF ANY PROCEEDING BEFORE THE AUTHORITY,
ENCOMPASSES PREPARATION FOR A FORMAL HEARING IN AN UNFAIR LABOR PRACTICE
PROCEEDING AND PROVIDES THAT EMPLOYEES SHALL BE GRANTED OFFICIAL TIME
FOR SUCH PARTICIPATION IF DEEMED NECESSARY "BY THE AUTHORITY, GENERAL
COUNSEL, . . . OR OTHER AGENT OF THE AUTHORITY DESIGNATED BY THE
AUTHORITY . . . ." IN THE AUTHORITY'S VIEW, THE FIELD ATTORNEYS COME
WITHIN THE DEFINITION OF "OTHER AGENT(S) OF THE AUTHORITY DESIGNATED BY
THE AUTHORITY" AND THUS ARE AUTHORIZED TO DEEM IT NECESSARY THAT AN
EMPLOYEE PARTICIPATE IN PREPARATION FOR FORMAL HEARINGS IN UNFAIR LABOR
PRACTICE PROCEEDINGS, /5/ AND SUCH DETERMINATIONS WERE MADE IN THIS
CASE. THUS, INASMUCH AS THE PARTICIPATION OF COLEMAN, CONNELL, WILSON
AND WOODS IN THE PRE-HEARING PREPARATIONS WAS PURSUANT TO SECTION
7131(C) OF THE STATUTE, THE RESPONDENT'S DENIAL OF OFFICIAL TIME TO THEM
FOR THEIR MEETINGS WITH THE AUTHORITY FIELD ATTORNEYS ON MAY 8, 1981,
AND AUGUST 6, 1981, RESPECTIVELY, VIOLATED SECTION 7131(C) AND THEREFORE
CONSTITUTED VIOLATIONS OF SECTION 7116(A)(1) AND (8) OF THE STATUTE.
/6/
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 DEPARTMENT OF THE TREASURY, BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS, SHALL:
1. CEASE AND DESIST FROM:
1. CEASE AND DESIST FROM:
(A) DENYING OFFICIAL TIME TO ITS EMPLOYEES FOR ATTENDANCE AT MEETINGS
WITH DESIGNATED
AGENTS OF THE FEDERAL LABOR RELATIONS AUTHORITY FOR THE PURPOSE OF
PRE-HEARING PREPARATION IN
UNFAIR LABOR PRACTICE PROCEEDINGS WHEN SUCH 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) PROVIDE EMPLOYEES DONALD COLEMAN, MARTIN CONNELL, CHARLES WILSON
AND THOMAS WOODS
OFFICIAL TIME FOR THEIR MEETINGS WITH FIELD ATTORNEYS OF THE FEDERAL
LABOR RELATIONS AUTHORITY
ON MAY 8, 1981, AND AUGUST 6, 1981, RESPECTIVELY, AND MAKE THEM WHOLE
FOR ANY ANNUAL LEAVE
UTILIZED FOR THAT PURPOSE; AND, IF APPROPRIATE, UPON SUBMISSION OF
PROPERLY DOCUMENTED
VOUCHERS, REIMBURSE THEM FOR TRANSPORTATION AND PER DIEM EXPENSES
INCURRED.
(B) POST AT ITS FACILITIES IN ITS LOUISVILLE, KENTUCKY, AREA OFFICE
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 AN AUTHORIZED OFFICIAL 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
RESPONDENT SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED
OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION V, 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 2, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DENY OFFICIAL TIME TO OUR EMPLOYEES FOR
ATTENDANCE AT
MEETINGS WITH DESIGNATED AGENTS OF THE FEDERAL LABOR
RELATIONS AUTHORITY
FOR THE PURPOSE OF PRE-HEARING PREPARATION IN UNFAIR LABOR
PRACTICE
PROCEEDINGS WHEN 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 THE EXERCISE OF THEIR RIGHTS
ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL PROVIDE EMPLOYEES DONALD COLEMAN, MARTIN CONNELL,
CHARLES
WILSON AND THOMAS WOODS OFFICIAL TIME FOR THEIR MEETINGS WITH
FIELD
ATTORNEYS OF THE FEDERAL LABOR RELATIONS AUTHORITY ON MAY 8,
1981, AND
AUGUST 6, 1981, RESPECTIVELY, AND MAKE THEM WHOLE FOR ANY
ANNUAL LEAVE
UTILIZED FOR THAT PURPOSE; AND, IF APPROPRIATE, UPON SUBMISSION
OF
PROPERLY DOCUMENTED VOUCHERS, REIMBURSE THEM FOR
TRANSPORTATION AND PER
DIEM EXPENSES INCURRED.
(AGENCY)
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 THE
NOTICE OR
COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE
REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY,
SUITE
1359-A, 175 W. JACKSON BLVD., CHICAGO, ILLINOIS 60604, AND WHOSE
TELEPHONE NUMBER IS: (312) 353-0139.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7131(C) PROVIDES:
(C) EXCEPT AS PROVIDED IN SUBSECTION (A) OF THIS SECTION, THE
AUTHORITY SHALL DETERMINE
WHETHER ANY EMPLOYEE PARTICIPATING FOR, OR ON BEHALF OF, A
LABOR
ORGANIZATION IN ANY PHASE OF
PROCEEDINGS BEFORE THE AUTHORITY SHALL BE AUTHORIZED
OFFICIAL TIME
FOR SUCH PURPOSE DURING THE
TIME THE EMPLOYEE OTHERWISE WOULD BE IN A DUTY STATUS.
/2/ SECTION 2429.13 PROVIDES:
SEC. 2429.13 OFFICIAL TIME.
IF THE PARTICIPATION OF ANY EMPLOYEE IN ANY PHASE OF ANY
PROCEEDING
BEFORE THE AUTHORITY,
INCLUDING THE INVESTIGATION OF UNFAIR LABOR PRACTICE CHARGES
AND
REPRESENTATION PETITIONS AND
THE PARTICIPATION IN HEARINGS AND REPRESENTATION ELECTIONS, IS
DEEMED
NECESSARY BY THE
AUTHORITY, THE GENERAL COUNSEL, ANY ADMINISTRATIVE LAW JUDGE,
REGIONAL DIRECTOR, HEARING
OFFICER, OR OTHER AGENT OF THE AUTHORITY DESIGNATED BY THE
AUTHORITY,
SUCH EMPLOYEE SHALL BE
GRANTED 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.
/3/ THE CHARGING PARTY'S BRIEF WAS UNTIMELY FILED AND HAS NOT
BEEN
CONSIDERED HEREIN.
/4/ SEE H.R. REP. NO. 1403, 95TH CONG., 2D SESS. 58-59(1978).
/5/ IN NORFOLK NAVAL SHIPYARD, 5 FLRA NO. 105(1981), WHICH INVOLVED
EMPLOYEE PARTICIPATION IN AN UNFAIR LABOR PRACTICE PROCEEDING
AFTER THE
HEARING HAD BEEN CONVENED, THE AUTHORITY FOUND THAT THE
POWER TO
DETERMINE THE NEED FOR EMPLOYEE PARTICIPATION RESTED
EXCLUSIVELY WITH
THE ADMINISTRATIVE LAW JUDGE.
/6/ THE RESPONDENT ARGUES THAT CERTAIN STATEMENTS MADE BY
CONGRESSMAN
CLAY OF MISSOURI (124 CONG.REC. 29188(1978)) AND CONGRESSMAN
FORD OF
MICHIGAN (124 CONG.REC. 29200(1978)) ON THE HOUSE FLOOR SUPPORT
ITS
POSITION IN THE INSTANT CASE. HOWEVER, WHILE THOSE STATEMENTS
ADDRESS
SECTION 7131, THEY DO NOT RELATE TO THE SUBSECTION (C) WHICH IS
WHAT IS
GERMANE TO THE QUESTION PRESENTED BY THE COMPLAINT IN THIS
CASE.