15:0506(108)CA - Treasury, IRS and Treasury IRS Jacksonville District and NTEU -- 1984 FLRAdec CA
[ v15 p506 ]
15:0506(108)CA
The decision of the Authority follows:
15 FLRA No. 108
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE;
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 4-CA-823
DECISION AND ORDER
The Administrative Law Judge issued her Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party and the General Counsel filed exceptions to the Judge's
Decision, and the Respondent filed an opposition to the General
Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings and conclusions only to the extent consistent herewith.
The complaint alleges that by denying a request by the General
Counsel to give an employee official time for pre-hearing preparation in
a proceeding before the Authority, the Respondent, Department of the
Treasury, Internal Revenue Service, Jacksonville District, interfered
with the employee's protected rights and failed to comply with the
provisions of section 7131(c) of the Statute /1/ in violation of section
7116(a)(1) and (8) of the Statute. /2/
On February 13, 1981, an Authority field attorney requested that the
Respondent make available and grant official time to an employee on
February 27 and March 2, 1981, for pre-hearing preparation in an unfair
labor practice proceeding before the Authority (Case No. 4-CA-628). On
February 18, 1981, the field attorney wrote to Harry G. Mason, the
Respondent's Assistant Regional Counsel, confirming a previous telephone
conversation in which Mason agreed to grant official time to the
employee for February 27, but not March 2, 1981. The letter related
that the employee was being instructed to request administrative leave
on February 27 and March 2, 1981, for pre-hearing participation. Mason
replied by letter dated February 23, 1981, stating, inter alia, that the
IRS had decided not to grant the official time requested for February
27, 1981, adding that if the field attorney would change her position,
official time would be granted at the field attorney's option for either
February 27, or March 2, but not for both. The Respondent's letter
concluded that if the necessity for the employee's participation on
official time for two separate days could be disclosed, the IRS "is
willing to reconsider." No response was made to this letter, and the
instant charge was filed.
The Judge found that the Respondent did not violate section
7116(a)(1) and (8) of the Statute and recommended that the complaint be
dismissed. The Judge concluded that the Authority has the power to
review the General Counsel's determination of the amount of official
time necessary, that the General Counsel must justify to agency
representatives the reasonableness of the amount of time it requests for
official time, and that when the General Counsel does not so justify its
official time requests, a violation will not be established by denial of
the requests.
In Department of Health and Human Services, Social Security
Administration, Great Lakes Program Service Center, 10 FLRA No. 90
(1983), pending before the Authority at the time the Judge issued her
decision herein, the Authority rejected the "reasonableness" standard
applied by the Judge in that case to the General Counsel's request that
official time be granted for employees to assist in the investigation of
unfair labor practice charges. The Authority noted that, under section
7104(f)(2)(A) of the Statute, the General Counsel is empowered to
"investigate alleged unfair labor practices" and that such express
authority necessarily encompasses the manner in which investigations are
conducted. The Authority further held that, under section 7131(c) of
the Statute, once the participation of the employee has been deemed
necessary in any phase of any proceeding before the Authority, that
employee shall be given official time for such participation. /3/
Previously, in Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, 10 FLRA No. 3 (1982), the Authority determined that the
denial of a request for official time for the participation of employees
in the pre-hearing preparation phase of unfair labor practice
proceedings before the Authority constituted a failure to comply with
section 7131(c) of the Statute, in violation of section 7116(a)(1) and
(8). See also U.S. Department of Justice, Federal Prison System, 10
FLRA No. 109 (1983). In like manner, the Authority finds, in the
instant case, that once the participation of the employee was deemed
necessary by the General Counsel, the Respondent was obligated to
provide official time to the extent requested by the General Counsel to
that employee under section 7131(c) of the Statute. The Respondent's
denial of official time, therefore, constitutes a failure to comply with
section 7131(c) in violation of section 7116(a)(1) and (8) of the
Statute. /4/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Treasury, Internal Revenue
Service, Jacksonville, Florida shall:
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 and to the extent that 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) Upon request grant 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 and to the extent that such participation has
been deemed necessary by a designated agent of the Authority.
(b) Post at its facilities in its Jacksonville, Florida District
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
IV, 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., August 10, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 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 the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL upon request grant 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 and to the extent that such
participation has been deemed necessary by a designated agent of the
Authority.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 IV, Federal Labor Relations Authority whose address is:
1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, Georgia
30309 and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Robert M. Finer and
Harry G. Mason,
Attorneys for Respondent
Lawrence K. G. Poole,
Attorney for Charging Party
Edward P. Nichols,
Attorney for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191 (1978), 5 U.S.C. 7101 et seq. (Supp.
IV, 1980) (hereinafter referred to as the "Statute"), and the rules and
regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq.,
5 CFR 2411 et seq.
Pursuant to a charge filed by the National Treasury Employees Union
(hereinafter, the "Union" or the "Charging Party") the General Counsel
of the Federal Labor Relations Authority (the "Authority") filed this
complaint. The complaint alleges that violations of Section 7116(a)(1)
and (8) of the Statute have occurred. /5/ The basis for the complaint
is that Respondents denied official time to an employee, thereby
interfering with, restraining and coercing him in his right to assist
the Union in a proceeding before the Authority and violating Section
7131(c) of the Statute. See footnote 5, below.
A hearing was held in the matter on December 3, 1981, in Atlanta, GA.
The General Counsel put the formal papers and two letters into
evidence. See GCEx-1(a)-(1), 2 and 3. /6/ Several stipulations of fact
were offered and accepted. Judicial notice was taken of the decision in
Case No. 4-CA-628, OALJ 81-155.
The General Counsel, asserting that there were no remaining issues of
fact, and no need for a hearing, then moved for summary judgment. /7/
Respondent countered with a motion to dismiss. Respondent also renewed
a motion to subpoena the attorney for the General Counsel who tried to
obtain official time for the employee. The motion had been denied by
the Atlanta Regional Director of the Authority. The General Counsel
moved to quash this subpoena.
All rulings on the motions were deferred until the parties could
submit briefs in support, and in opposition to them. The briefs were
submitted on and before January 8, 1982. /8/
Findings of Fact
1. It was admitted that the Union has been and is now a labor
organization within the meaning of Section 7103(a)(4) of the Statute,
that the Department of the Treasury is an agency within the meaning of
Section 7103(a)(3) of the Statute, and that the Internal Revenue
Service, and its Jacksonville District, are activities within the
meaning of 5 CFR 2421.4.
2. On or about December 30, 1980, the Acting Regional Director of
Region IV of the Authority issued a Complaint and Notice of Hearing in a
matter styled Department of Treasury, Internal Revenue Service,
Jacksonville District, Respondent, and National Treasury Employees
Union, Charging Party, Case No. 4-CA-628, which matter was scheduled for
hearing on March 3, 1981.
3. On February 13, 1981, an attorney of the Authority, Regina N.
Kane, made a request that one of Respondent's employees, Harvey Katz, be
granted official time on February 27 and March 2, 1981, to participate
on behalf of the Union in the pre-hearing preparation of Case No.
4-CA-628.
4. On February 18, 1981, Ms. Kane sent the following letter to Harry
G. Mason, an assistant regional counsel for the Southeastern Region of
Internal Revenue Service:
This letter is to confirm our phone conversation of February
13, 1981, wherein you agreed that official time will be granted to
Harvey Katz at 9:00 am and to George Bockhold at 1:00 pm on
February 27, 1981 for the purpose of pretrial preparation in the
above-referenced case (Case No. 4-CA-628). As a result of our
conversation it is my understanding that official time will not be
granted for the pretrial preparation of the above-named
individuals on March 2, 1981.
For your information, pursuant to 5 USC 7131(c), I am
instructing Harvey Katz and George Bockhold to request
administrative leave on February 27, 1981 and on March 2, 1981 for
their participation in pretrial preparation. Should you have any
questions regarding this matter, please feel free to contact me or
in my absence, Ed Nichols.
5. On February 23, 1981, Mr. Mason sent the following letter to Ms.
Kane:
This is in response to your letter of February 18, 1981. In
our initial telephone conversation, you requested official time
for Harvey Katz and George Bockhold for pretrial preparation on
February 27 and March 2, 1981. I told you that since the FLRA had
already interviewed Katz and Bockhold during the investigation of
the charge, the IRS would grant official time for pretrial
preparation on either February 27 or March 2. You chose February
27 and told me you would check with the Regional Attorney about
our position of granting official time on both days for pretrial
preparation.
In light of your position on this matter, the IRS has decided
not to grant official time to Katz and Bockhold on February 27.
The IRS will grant official time for the entire day of March 2 to
allow Katz and Bockhold to travel to Jacksonville to testify at
the hearing scheduled for 9 a.m. on March 3, and to allow for
pretrial preparation on March 2.
If you change your position, the IRS will be happy to
accommodate you by switching the grant of official time for
pretrial preparation from March 2 to February 27. In other words,
the choice of day for pretrial preparation remains with you.
This unfair labor practice case appears to involve a relatively
uncomplicated, straight-forward issue. I do not understand why
you think it is necessary for you to see Katz and Bockhold on two
separate days for pretrial preparation, especially when you have
statements by them given during the investigation of the charge.
Nevertheless, the IRS is willing to reconsider the position set
forth in this letter if you can tell us why it is necessary for
you to have Katz and Bockhold on official time two separate days
for pretrial preparation.
(GCEx-3). Copies of this letter were sent to the "General Legal
Services Division, Washington, D.C.; Chief, Labor Relations Board, N.O.;
Chief, Labor Relations Section, SERO; and District Director -
Jacksonville District Office." There is no evidence in this record as to
whether statements were actually given by the employees, in the
investigatory stage of Case No. 4-CA-628.
6. Mr. Mason received no response to his February 23 letter.
7. On March 10 or 11, 1981, the Union filed with the Authority a
charge alleging an unfair labor practice over the alleged denial of
official time.
8. On August 18, 1981, Administrative Law Judge Francis E. Dowd
issued his decision in Case No. 4-CA-628. He dismissed the complaint,
which involved Mr. Katz as a primary witness. One basic issue was
involved-- whether the Jacksonville District Office of the Internal
Revenue Service unilaterally changed a past practice in violation of
Sections 7116(a)(1) and (5) of the Statute. The alleged past practice
was the use by the Union of Government routing forms. Mr. Katz, and one
other witness, were the only witnesses to testify on behalf of the
General Counsel. Judge Dowd did not believe the testimony of Mr. Katz.
He found that Mr. Katz gave "gratuitous and rambling replies to
questions" and that his testimony was "self-serving, uncorroborated by
any credible testimony, and totally unpersuasive." See page 8 of Judge
Dowd's decision.
9. On September 9, 1981, the Authority filed the complaint
initiating this proceeding.
10. At the hearing held on December 3, 1981, Mr. Finer conceded that
some pretrial preparation of Mr. Katz was necessary, and questioned only
the necessity for two days.
Discussion and Conclusions
1. The General Counsel's Motion for Summary Judgment is denied.
This motion is premised upon the proposition that "there remain no
issues of fact for hearing, but rather the determination is now solely a
matter of law . . . . " (GCEx 1.2) The matter of law is whether "once
necessity (for official time) is declared (by the General Counsel) prior
to the hearing, the amount of time to be allowed is not subject to
question." (GCBr 1.5)
The General Counsel relies on the statutory language of Section
7131(c), quoted above in footnote 5, and its implementing regulation, in
5 CFR 2429.13, which provides:
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
any 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.
In particular, the General Counsel relies upon the use of "shall,"
and the absence of any qualifying language such as a "reasonable amount
of official time," or "an amount consistent with the needs of the
Agency," or a "negotiable amount." See GCBr 1.6-7. The General Counsel
views its position to be "the only reasonable construction of the
Statute (which) is to separate the prosecutorial (General Counsel) and
adjudicatory functions (Administrative Law Judges and Authority), both
in decision making power on the substantive merits and procedural
matters such as official time." (GCBr 1.7)
The General Counsel has unsuccessfully tested its power under Section
7131(c), in at least two other cases. In one, Norfolk Naval Shipyard,
Portsmouth, Virginia, 5 FLRA No. 105, May 29, 1981 (hereinafter,
"Norfolk Naval Shipyard"), the General Counsel amended an unfair labor
practice complaint at the hearing, to include an allegation based on a
Section 7131(c) violation. The amendment grew out of the Respondent's
refusal of the General Counsel's demand (after the hearing on the
complaint had been adjourned for the day) that two employees, who had
been under subpoena to testify, be continued on official time in order
to assist the General Counsel in preparing for the following day's
hearing. As formulated by Chief Administrative Law Judge John H.
Fenton, the question was "whether Counsel for the General Counsel can
simply decide certain individuals are necessary to the preparation of
his/her prosecution, so inform Respondent and thereby set the stage for
a prima facie violation should official time not be made available at
such times as, and for so long as, the General Counsel seems necessary
and reasonable." See page 13 of Judge Fenton's decision. The emphasis
on the phrase "for so long as" has been added, as it is particularly
pertinent to this proceeding. Judge Fenton ruled that the General
Counsel "cannot simply commandeer such assistance as he thinks he needs
from Respondent's staff", and that "(n)or would considerations of due
process appear to permit a determination as to necessity merely upon his
representation that they were necessary to his trial preparation." See
page 14 of his decision. No evidence of the necessity for continuing
the employees on official time was offered by the General Counsel at the
hearing. Judge Fenton accordingly recommended dismissal of the
allegation.
On exceptions by the General Counsel, the Authority affirmed the
ruling of Judge Fenton, in the Norfolk Naval Shipyard case. The
Authority held that the General Counsel must provide evidence of
necessity, in order to prove that Section 7131(c) has been violated.
The General Counsel here distinguishes the Norfolk Naval Shipyard case
on the ground that it involved an official-time demand during the course
of the hearing, when the power to "deem necessary" had passed from the
prosecutorial to the adjudicatory arm of the Authority. See GCBr 1.5-7.
The second test of the General Counsel's position of unfettered power
under Section 7131(c) was tried out in Department of Health and Human
Services, Social Security Administration, Great Lakes Program Service
Center, Case No. 5-CA-707, OALJ 81-090, April 20, 1981 (hereinafter
"HHS"). In that case, the Authority was conducting an investigation,
and the Respondent declined to grant official time for an employee
interview, unless the employee was interviewed at Respondent's office.
The General Counsel wanted to conduct the interview at the General
Counsel's office, eight blocks from the office of the Respondent, in
order to use new interview rooms of the Authority and to suit the
convenience of the Authority's agent. The General Counsel argued that
he "may determine where the employees are to interviewed," but
acknowledged that his discretion in the matter was subject to a standard
of "reasonableness." See page 5 of the decision of Administrative Law
Judge Samuel A. Chaitovitz. Judge Chaitovitz found unreasonableness on
the particular facts of record. He did not reach the question of what
facts would be sufficient to justify the granting of official time for
an investigative interview away from the Agency's premises, or even
whether any such reasons had to be given. See footnote 4 to the
decision. The HHS case is now pending before the Authority on
exceptions.
While valid distinctions can be drawn between this case and HHS and
Norfolk Naval Shipyard, each presents an issue as to the scope of the
General Counsel's power to compel an agency to grant official time to
its employees. In both HHS and Norfolk Naval Shipyard, a reluctance to
view the General Counsel's power as unreviewable seems to undergird each
decision. This reluctance is consonant with the Statute's declaration
that its provisions "be interpreted in a manner consistent with the
requirement of an effective and efficient Government." See Section
7101(b). A holding that the General Counsel may "simply commandeer such
assistance as he thinks he needs from (an agency's) staff" (to quote
Judge Fenton's decision in Norfolk Naval Shipyard), would place an
agency's budget and plans beyond its control, and would not foster an
effective and efficient Government. Of course, the mere two days sought
here would have no such effect. And, indeed, the two days sought here
may have been reasonable, since the employee involved was a primary
witness and apparently a difficult one, in need of corroboration. See
finding 8, above. Nevertheless, the General Counsel here insists that
he need not demonstrate reasonableness; and he did not. Instead, he
refers to himself as the "master," whose decisions on official time are
"not subject to question," and that he enjoys "carte blanche" in the
matter, with "unfettered" power and "sole authority . . . with no
qualifications." (GCBr 1.5, 6, 7, and 8). Such raw power would have
due-process implications unwarranted by a sensible reading of the
statutory and regulatory provisions on official time.
The General Counsel fears that a limit on his power would interfere
with his prosecutorial authority. However, the exercise of his power
over official time does not appear to flow from his prosecutorial
authority, set forth in Section 7104(f)(2)(B) of the Statute, but rather
from a power granted him by the Authority, pursuant to Section
7104(f)(2)(C). /9/ In Section 2429.13 of its regulations, the Authority
authorized not only the General Counsel, but also "any Administrative
Law Judge, Regional Director, Hearing Officer, or other agent of the
Authority designated by the Authority" power over official time. In
Norfolk Naval Shipyard, the Authority ruled that the power granted to
the Administrative Law Judge was "subject to review by the Authority."
See page 4 of its decision. It is unlikely, in granting the same power
to the General Counsel, that the Authority intended to endow his office
with an unreviewable one.
This interpretation should not mislead agencies into rash challenges
of official-time requests, as the Union fears. See CPBr 6-7. The
threat of having to defend an unfair labor practice charge over an
unreasonable denial should act as a moderating factor on the agencies.
In most cases, such a defense would undoubtedly involve a more costly
involvement of agency personnel and budget outlays, than granting the
official-time request in the first place.
2. Respondent's Motion to Dismiss is granted, although not on any
basis urged in its brief. See RBr 2. The General Counsel takes the
position that "the facts necessary to establish a violation of the
statute as alleged in the complaint are in the record at present." (GCBr
2.5). One is not-- an unequivocal denial of official time. The only
supportive facts in the record are the letters exchanged between counsel
for the parties. See findings 4 and 5, above. The letter from counsel
for Respondent clearly holds open the door for a full grant of the
request, "if you (the General Counsel) can tell us why it is necessary
for you to have Katz and Bockhold on official time for two separate days
for pretrial preparation." (GCEx 3). This was not an unreasonable
request. The case being prepared seemed to Respondent to involve a
"relatively uncomplicated, straight-forward issue" (GCEx 3). Judging by
the decision issued in the case, this understanding of Respondent was
correct. See finding 8, above. The General Counsel never responded to
this letter from Respondent. Instead, some six months later, he filed
this complaint. Even though there are facts of record which speak in
terms of Respondent denying the full request made for official time, the
totality of the facts indicate that Respondent was simply trying to
obtain from the General Counsel an explanation for the amount of time
deemed necessary. This is not such a denial as will support the
complaint.
This is not to say that agencies can play cat-and-mouse games with
the General Counsel, by hiding their denials in ambiguous language. All
that is held here is that, on the particular facts of this case, the
Respondent had not given a definitive denial. Rather, Respondent seemed
to be honestly seeking a rational explanation and willing to reconsider
its position, upon receipt of one.
This disposition of the Motions for Summary Judgment and to Dismiss
renders unnecessary a resolution of the other issues posed by the
parties.
Ultimate Finding and Recommended Order
The General Counsel has failed to prove, by a preponderance of the
evidence, that Respondent has committed the unfair labor practice
alleged in the complaint.
Accordingly, it is ORDERED, that the complaint in Case No. 4-CA-823
be, and hereby is, dismissed.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: April 20, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7131 provides, in pertinent part:
Sec. 7131. Official time
. . . .
(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 7116(a)(1) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an 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.
/3/ See section 2429.13 of the Authority's Rules and Regulations
which 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 agency 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.
/4/ The Judge's reliance herein on Norfolk Naval Shipyard,
Portsmouth, Virginia, 5 FLRA 788 (1981) is inapposite. That case merely
held that once a hearing has been convened, the power to determine the
need for employee participation rests exclusively with the
Administrative Law Judge.
/5/ The pertinent statutory provisions are as follows:
Sec. 7116 Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Sec. 7131 Official time . . .
(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.
/6/ "GCEx" refers to the General Counsel's Exhibits. GCEx-1(a)-(1)
was mistakenly left out of the record which was assembled by the
reporter at the hearing. The General Counsel has reassembled the
exhibit, initialed it, and forwarded it to Respondent. The Respondent
has initialed the exhibit and forwarded it to me. I have initialed it,
and inserted it into the record.
/7/ The General Counsel's motion to correct page 22, line 14 of the
transcript is granted and "Mr. Nichols" is substituted for "Mr. Mason."
/8/ Six separate briefs were filed. References to them will be
abbreviated as follows:
1. Memorandum of Law In Support Of Respondent's Motion for
Subpoena Ad Testificandum and Duces Tecum - "RBr 1."
2. Brief In Support of Respondent's Motion To Dismiss and In
Opposition to Counsel For The General Counsel's Motion for Summary
Judgment - "RBr 2."
3. Counsel For The General Counsel's Brief To The
Administrative Law Judge - "GCBr 1."
4. Brief in Support Of The General Counsel's Motion For
Summary Judgment - "CPBr."
5. Respondent's Brief In Response To Counsel For the General
Counsel's Brief In Support of His Motion For Summary Judgment And
Motion to Quash Subpoena - "RBr 3."
6. Counsel For The General Counsel's Reply Brief - "GCBr 2."
Pages of the briefs will be indicated by a period and a page number
following the reference to the brief.
/9/ Section 7104(f)(2) provides, in pertinent part, as follows:
The General Counsel may--
(A) investigate alleged unfair labor practices under this chapter,
(B) file and prosecute complaints under this chapter, and
(C) exercise such other powers of the Authority as the Authority may
prescribe.