[ v10 p510 ]
10:0510(90)CA
The decision of the Authority follows:
10 FLRA No. 90
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
GREAT LAKES PROGRAM SERVICE CENTER
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1395, AFL-CIO
Charging Party
Case No. 5-CA-707
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE
CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S DECISION.
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 IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS AND CONCLUSION THAT THE RESPONDENT
DID NOT VIOLATE SECTION 7116(A)(1) AND (8) OF THE STATUTE IN THE
PARTICULAR CIRCUMSTANCES OF THIS CASE BY DENYING A REQUEST FROM AN AGENT
OF THE AUTHORITY THAT AN EMPLOYEE BE ALLOWED TO COME TO THE AUTHORITY'S
REGIONAL OFFICE ON OFFICIAL TIME SO AS TO BE INTERVIEWED IN CONNECTION
WITH THE INVESTIGATION OF AN UNFAIR LABOR PRACTICE CHARGE. IN ADOPTING
THE JUDGE'S DECISION, THE AUTHORITY NOTES PARTICULARLY THE ABSENCE OF
EXCEPTIONS BY THE GENERAL COUNSEL AND THE UNCONTROVERTED RECORD
EVIDENCE
THAT THE EMPLOYEE IN QUESTION WAS INTERVIEWED IN THE AUTHORITY'S
REGIONAL OFFICE AS REQUESTED, AND THAT HE DID NOT ACTUALLY SUFFER ANY
LOSS OF PAY OR LEAVE AS A RESULT OF HIS COMPLIANCE WITH THE GENERAL
COUNSEL'S REQUEST.
HOWEVER, THE AUTHORITY REJECTS THE JUDGE'S APPARENT APPLICATION OF A
"REASONABLENESS" TEST WITH REGARD TO THE GENERAL COUNSEL'S DETERMINATION
THAT THE EMPLOYEE DEEMED NECESSARY TO HIS INVESTIGATION OF AN UNFAIR
LABOR PRACTICE CHARGE /1/ WAS TO BE INTERVIEWED AT THE AUTHORITY'S
REGIONAL OFFICE AND WAS TO BE ON OFFICIAL TIME TO COME TO THE
AUTHORITY'S OFFICES FOR SUCH PURPOSE. IN THIS REGARD, THE AUTHORITY
NOTES THAT SECTION 7104(F)(2)(A) OF THE STATUTE SPECIFICALLY EMPOWERS
THE GENERAL COUNSEL TO "INVESTIGATE ALLEGED UNFAIR LABOR PRACTICES"
UNDER THE STATUTE, AND CONCLUDES THAT SUCH EXPRESS STATUTORY AUTHORITY
NECESSARILY ENCOMPASSES THE MANNER IN WHICH INVESTIGATIONS ARE
CONDUCTED, INCLUDING THE SITUS OF INTERVIEWS RELATED THERETO.
MOREOVER, TO THE EXTENT THAT THE JUDGE APPLIED A "REASONABLENESS"
TEST TO THE GENERAL COUNSEL'S DETERMINATION THAT THE EMPLOYEE SHOULD BE
ON OFFICIAL TIME WHILE TRAVELING TO THE AUTHORITY'S OFFICES FOR THE
PURPOSE OF BEING INTERVIEWED IN CONNECTION WITH AN UNFAIR LABOR PRACTICE
INVESTIGATION, THE AUTHORITY REJECTS SUCH A TEST. SECTION 7131(C) OF
THE STATUTE SPECIFICALLY 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.
FURTHER, THE AUTHORITY HAS DETERMINED IN SECTION 2429.13 OF THE
AUTHORITY'S RULES AND REGULATIONS THAT:
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.
IT SHOULD BE NOTED THAT ONCE THE PARTICIPATION OF AN EMPLOYEE HAS
BEEN DEEMED NECESSARY IN ANY PHASE OF ANY PROCEEDING BEFORE THE
AUTHORITY, AS HERE, THAT "EMPLOYEE SHALL BE GRANTED OFFICIAL TIME FOR
SUCH PARTICIPATION." THAT IS, THERE IS NO DISCRETION TO DETERMINE
WHETHER OR NOT AN EMPLOYEE SHOULD BE ON OFFICIAL TIME ONCE THAT
EMPLOYEE'S PARTICIPATION HAS BEEN DEEMED NECESSARY. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-707 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 23, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DANIEL H. GREENE
G. EDWARD DAVIS
FOR THE RESPONDENT
DONALD JONES
FOR THE CHARGING PARTY
GLENN BROWN
ARLANDER KEYES
FOR THE GENERAL COUNSEL
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
CASE NO.: 5-CA-707
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
ET SEQ. (HEREINAFTER CALLED THE STATUTE) AND THE RULES AND REGULATIONS
OF THE FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER CALLED THE FLRA),
5 C.F.R. CHAPTER XIV, SEC. 2410 ET SEQ.
PURSUANT TO A CHANGE FILED ON SEPTEMBER 9, 1980 BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1395, AFL-CIO (HEREINAFTER
CALLED THE UNION AND/OR AFGE LOCAL 1395) AGAINST DEPARTMENT OF HEALTH
AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, GREAT LAKES PROGRAM
SERVICE CENTER (HEREINAFTER CALLED RESPONDENT AND/OR SSA) THE GENERAL
COUNSEL OF THE FLRA BY THE REGIONAL DIRECTOR FOR REGION 5, ISSUED A
COMPLAINT AND NOTICE OF HEARING ON OCTOBER 15, 1980 ALLEGING THAT
RESPONDENT HAD ENGAGED IN AND WAS ENGAGING IN UNFAIR LABOR PRACTICES
WITHIN THE MEANING OF SECTIONS 7116(A)(1) AND (8) OF THE STATUTE. THE
COMPLAINT ALLEGES THAT ON SEPTEMBER 16 AND 17, 1980 RESPONDENT VIOLATED
SECTION 7131(C) OF THE STATUTE WHEN SSA REFUSED TO RELEASE AN EMPLOYEE
FOR THE PURPOSE OF APPEARING AT FLRA'S CHICAGO REGIONAL OFFICE IN
CONNECTION WITH THE INVESTIGATION OF AN UNFAIR LABOR PRACTICE CHARGE.
A HEARING IN THIS MATTER WAS CONDUCTED IN CHICAGO, AT WHICH TIME THE
GENERAL COUNSEL OF THE FLRA (HEREINAFTER CALLED THE GENERAL COUNSEL),
RESPONDENT AND THE UNION WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE
EVIDENCE, TO ENTER INTO STIPULATIONS, AND TO ARGUE ORALLY. BRIEFS WERE
FILED BY ALL PARTIES AND HAVE BEEN FULLY CONSIDERED.
UPON THE ENTIRE RECORD /3/ IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE,
INCLUDING STIPULATIONS, I MAKE THE FOLLOWING:
FINDINGS OF FACT
ALL PARTIES HERETO SUBMITTED THE FOLLOWING STIPULATION OF FACTS:
"(1) THAT ON SEPTEMBER 16, 1980, AN AGENT OF THE FEDERAL LABOR
RELATIONS AUTHORITY, HEREINAFTER THE AUTHORITY, IN ORDER TO CONDUCT THE
INVESTIGATION OF AN UNFAIR LABOR PRACTICE CHARGE FILED IN CASE NO.
5-CA-691 BY LOCAL 1395, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HEREINAFTER THE UNION, REQUESTED OF RESPONDENT'S AGENT, EDWARD
DAVIS, THAT OFFICIAL TIME BE ARRANGED FOR EUGENE REED, ONE OF
RESPONDENT'S EMPLOYEES AND A UNION VICE-PRESIDENT, TO COME TO THE
AUTHORITY'S CHICAGO REGIONAL OFFICE, HEREINAFTER OFFICE, ON SEPTEMBER
17, 1980 TO BE INTERVIEWED.
(2) THAT ON SEPTEMBER 16, 1980, MR. DAVIS INFORMED THE AUTHORITY'
AGENT THAT OFFICIAL TIME WOULD NOT BE GRANTED FOR MR. REED TO GO TO THE
AUTHORITY'S OFFICE TO BE INTERVIEWED. MR. DAVIS DID INFORM THE
AUTHORITY'S AGENT THAT IF THE AGENT CAME TO THE GREAT LAKES PROGRAM
CENTER, HEREINAFTER THE ACTIVITY, OFFICIAL TIME FOR THE INTERVIEW WOULD
BE GRANTED.
(3) THAT MR. REED ARRIVED AT THE AUTHORITY'S OFFICE AT 9:15 A.M.,
SEPTEMBER 17, 1980. THE AUTHORITY AGENT BEGAN TAKING HIS STATEMENT AT
9:30 A.M. THE EMPLOYEE WAS BACK AT THE ACTIVITY AT 12:15 P.M.,
SEPTEMBER 1980.
(4) THAT MR. REED WAS DENIED OFFICIAL TIME TO GO TO THE AUTHORITY'S
OFFICES ON OCTOBER 10, 1980 TO GIVE A STATEMENT IN THE CASE HEREIN,
5-CA-707.
(5) THAT AS A RESULT OF SAID DENIAL, MR. REED WAS REQUIRED TO TAKE 3
HOURS ANNUAL LEAVE TO GIVE HIS STATEMENT IN THIS CASE.
(6) THAT THE ACTIVITY IS LOCATED AT 600 WEST MADISON STREET, CHICAGO,
ILLINOIS.
(7) THAT THE AUTHORITY'S OFFICE IS LOCATED AT 175 WEST JACKSON
STREET, SUITE A-1359, CHICAGO, ILLINOIS.
(8) THAT THE DISTANCE BETWEEN THE ACTIVITY AND THE AUTHORITY'S OFFICE
IS EIGHT BLOCKS."
THE RECORD FURTHER ESTABLISHED, THROUGH THE UNCONTROVERTED TESTIMONY
OF SSA AGENT EDWARD DAVIS THAT HE HAD A TELEPHONE CONVERSATION WITH FLRA
AGENT BROWN AND THAT HE ASKED FLRA AGENT BROWN WHY HE WAS CHANGING A
TWO
YEAR OLD POLICY OF CONDUCTING UNFAIR LABOR PRACTICE INVESTIGATIONS ON
SITE. FLRA AGENT BROWN RESPONDED THAT THE REASON WAS THAT THE FLRA NOW
HAD MORE SPACE AND THEY WANTED TO USE THEIR INTERVIEW ROOMS AND BECAUSE
IT WOULD BE MORE CONVENIENT FOR FLRA AGENT BROWN IF SSA EMPLOYEES CAME
TO HIS OFFICE. THERE IS ALSO APPARENTLY NO DISPUTE THAT MR. REED'S
INTERVIEW BY THE FLRA AGENT WAS DURING MR. REED'S NORMAL DUTY HOURS.
DISCUSSION AND CONCLUSIONS
SSA FIRST CONTENDS THAT THE COMPLAINT HEREIN SHOULD BE DISMISSED
BECAUSE IT IS PROCEDURALLY DEFECTIVE. RESPONDENT CONTENDS THAT SECTION
2423.12(B)(5) OF THE FLRA'S RULES AND REGULATIONS WERE NOT COMPLIED WITH
BECAUSE THE RIGHT ALLEGEDLY VIOLATED IS THE RIGHT OF THE FLRA NOT THE
RIGHT OF THE EMPLOYEES. RESPONDENT CONTENDS THAT SECTION 7131(C) OF THE
STATUTE DOES NOT GRANT THE INDIVIDUAL THE RIGHT TO OFFICIAL TIME FOR
INVESTIGATIVE INTERVIEWS, RATHER IT GRANTS THE FLRA THE RIGHT TO
DETERMINE IF OFFICIAL TIME SHOULD BE AUTHORIZED. THIS CONTENTION MUST
BE REJECTED. SECTION 7131(C) PROVIDES THAT ONCE THE FLRA MAKES A
DETERMINATION THAT AN EMPLOYEE IS NECESSARY, THE EMPLOYING AGENCY SHALL
GRANT THAT EMPLOYEE OFFICIAL TIME TO PARTICIPATE IN THE FLRA PROCEEDING.
ONCE SUCH A DETERMINATION IS MADE BY THE FLRA, THEN THE EMPLOYEE HAS,
BY VIRTUE OF SECTION 7131(C) A RIGHT TO OFFICIAL TIME TO PARTICIPATE IN
THE PROCEEDING AND IF THAT RIGHT IS UNLAWFULLY INTERFERED WITH, AN
UNFAIR LABOR PRACTICE HAS BEEN COMMITTED AND THE STATUTE HAS BEEN
VIOLATED. RESPONDENT'S OTHER TWO PROCEDURAL CONTENTIONS, THAT THE FACTS
ADDUCED AT THE HEARING DIFFER FROM THOSE ALLEGED IN THE COMPLAINT AND
THAT SSA ACTED IN GOOD FAITH ARE REJECTED AS WITHOUT MERIT.
SECTION 7131(C) OF THE STATUTE PROVIDES, IN PART:
" . . . 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."
SECTION 2429.13 OF THE FLRA'S RULES AND REGULATIONS INTERPRET SECTION
7131(C) OF THE STATUTE /4/ AND 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 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.
GENERAL COUNSEL RELIES ON THE FOREGOING SECTIONS OF THE STATUTE AND
RULES AND REGULATIONS, AS WELL AS SOME LEGISLATIVE HISTORY, /5/ IN
URGING THAT THE GENERAL COUNSEL OF THE FLRA IS AUTHORIZED TO DETERMINE
WHETHER EMPLOYEES PARTICIPATING IN PROCEEDINGS SHALL BE AUTHORIZED
OFFICIAL TIME. IN THAT REGARD IT IS ALSO CONTENDED THAT THE GENERAL
COUNSEL MAY DETERMINE WHERE THE EMPLOYEES ARE TO BE INTERVIEWED.
GENERAL COUNSEL FURTHER URGES THAT RESPONDENT MAY NOT DICTATE THE
MANNER
IN WHICH THE AUTHORITY CONDUCTS ITS INVESTIGATIONS. I CONCLUDE THAT ALL
OF THE FOREGOING INTERPRETATIONS OF THE STATUTE AND THE FLRA'S RULES AND
REGULATIONS ARE ACCURATE.
GENERAL COUNSEL RECOGNIZES IN ITS BRIEF, AT PAGE 4, "THE EXERCISE OF
SUCH DISCRETION SHOULD NOT BE DISTURBED UNLESS THE SITUS CHOSEN IS
BEYOND THE REALM OF REASONABLENESS." IN THE SUBJECT CASE SSA OFFERED TO
GRANT EMPLOYEE REED OFFICIAL TIME IF THE INTERVIEW WERE TAKEN ON THE SSA
PREMISES. RESPONDENT DID NOT WISH TO "PAY" FOR EMPLOYEE REED WHILE HE
WENT TO THE FLRA OFFICES NEARBY. THERE IS NO CONTENTION THAT SSA DID
NOT HAVE APPROPRIATE FACILITIES AVAILABLE FOR THE INTERVIEW OF EMPLOYEE
REED OR THAT SOMEHOW THE INTERVIEWING OF EMPLOYEE REED AT THE SSA
FACILITY WAS EITHER INAPPROPRIATE OR WOULD HAVE INTERFERED WITH THE
INVESTIGATION. RATHER THE ONLY REASONS ADVANCED BY THE FLRA AGENT FOR
REQUIRING THAT THE INTERVIEW BE TAKEN AT THE FLRA OFFICES WERE HIS OWN
CONVENIENCE AND THE DESIRE TO UTILIZE THE NEW INTERVIEW ROOMS AVAILABLE
AT THE FLRA'S NEW FACILITIES. IN BALANCING THE INTERESTS OF THE PARTIES
HEREIN, SSA'S DESIRE TO DISRUPT ITS OPERATIONS AS LITTLE AS POSSIBLE AND
TO MINIMIZE THE PAYING OF AN EMPLOYEE FOR NON-PRODUCTIVE WORK TIME, AS
AGAINST FLRA'S DESIRE TO UTILIZE ITS NEW OFFICES AND TO MINIMIZE THE
INCONVENIENCE OF ITS AGENT, I MUST CONCLUDE THAT FLRA REGIONAL OFFICE
WAS UNREASONABLE IN REQUIRING THAT THE INTERVIEW OF EMPLOYEE REED TAKE
PLACE AT THE FLRA OFFICES AND THAT EMPLOYEE REED BE ON OFFICIAL TIME TO
COME TO THE FLRA'S OFFICES. /6/
IN LIGHT OF THE FOREGOING, THEREFORE, IT IS CONCLUDED THAT RESPONDENT
DID NOT FAIL TO COMPLY WITH THE REQUIREMENTS OF SECTION 7131(C) OF THE
STATUTE AND DID NOT VIOLATE SECTIONS 7116(A)(1) AND (8) OF THE STATUTE.
ACCORDINGLY I RECOMMEND THE AUTHORITY ADOPT THE FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-707 BE, AND
HEREBY IS, DISMISSED.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 20, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THERE IS NO DISPUTE HEREIN THAT THE EMPLOYEE IN QUESTION WAS
DEEMED NECESSARY BY AN AGENT OF THE AUTHORITY IN THE INVESTIGATION OF AN
UNFAIR LABOR PRACTICE CHARGE, AND NO CONTENTION THAT SUCH DETERMINATION
CONSTITUTED AN ABUSE OF THE AGENT'S DISCRETION. SEE DEPARTMENT OF THE
TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, 10 FLRA NO. 3(1982).
SEE ALSO NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 5 FLRA NO.
105(1981).
/2/ IN THIS CONNECTION, AS THE AUTHORITY PREVIOUSLY NOTED, THE
EFFECTIVE ADMINISTRATION OF THE STATUTE, INCLUDING SECTION
7104(F)(2)(A), MAY REQUIRE THE GENERAL COUNSEL TO DETERMINE THAT
WITNESSES DEEMED NECESSARY IN THE INVESTIGATION OF UNFAIR LABOR PRACTICE
CHARGES MUST TRAVEL TO APPROPRIATE REGIONAL OFFICES FOR SUCH PURPOSES.
ACCORDINGLY, SECTION 2429.13 OF THE RULES AND REGULATIONS EXPRESSLY
PROVIDES THAT OFFICIAL TIME INCLUDES "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," AND THAT "NECESSARY TRAVEL
AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING ACTIVITY OR
AGENCY."
/3/ THE TRANSCRIPT OF THE HEARING IN THIS MATTER IS CORRECTED AS
FOLLOWS: (TABLE OMITTED)
/4/ INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31(1979).
/5/ SEE STATEMENT OF CONGRESSMAN WILLIAM CLAY, 123 CONG.REC.E. 334
(DAILY ED. JAN. 26, 1977) AND THE REPORT OF THE COMMITTEE ON POST OFFICE
AND CIVIL SERVICE.
/6/ IN SO DECIDING I NEED NOT REACH THE ISSUES OF WHAT FACTS WOULD BE
SUFFICIENT JUSTIFY THE GRANTING OF OFFICIAL TIME FOR AN INVESTIGATIVE
INTERVIEW AWAY FROM THE AGENCY'S PREMISES, OR EVEN WHETHER ANY SUCH
REASONS MUST BE GIVEN TO THE AGENCY. RATHER, THIS CASE IS LIMITED TO
ITS OWN FACTS, WHERE THE REASONS GIVEN TO JUSTIFY THE FLRA'S REQUEST
WERE FRIVOLOUS AND THUS UNREASONABLE.