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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.