09:0041(8)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms, Dallas, TX and NTEU and NTEU Chapter 121 -- 1982 FLRAdec CA



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09:0041(8)CA
The decision of the Authority follows:


 9 FLRA No. 8
 
 DEPARTMENT OF THE TREASURY
 BUREAU OF ALCOHOL, TOBACCO AND
 FIREARMS, DALLAS, TEXAS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 121
 Charging Party
 
                                            Case No. 6-CA-806
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
 UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT
 BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
 ACTION.  THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
 DECISION AND A BRIEF IN SUPPORT THEREOF.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) 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 THE SUBJECT CASE, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 AUTHORITY AND SECTION 7118 OF THE STATUTE, IT IS HEREBY ORDERED THAT THE
 DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
 DALLAS, TEXAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE OFFICIAL TIME TO EMPLOYEE
 JEANNETTE GREEN, PURSUANT TO
 
    THE PROVISIONS OF SECTION 7131(A) OF THE STATUTE, WHILE SHE IS
 ENGAGED IN REPRESENTING THE
 
    NATIONAL TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, THE EMPLOYEES'
 EXCLUSIVE
 
    REPRESENTATIVE, DURING MID-TERM LABOR-MANAGEMENT NEGOTIATIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) RETROACTIVELY PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN
 OFFICIAL TIME FOR THE
 
    PERFORMANCE OF HER REPRESENTATIONAL DUTIES ON MAY 9, 1980, AND MAKE
 HERE WHOLE FOR THE ANNUAL
 
    LEAVE SHE UTILIZED ON THAT DATE.
 
    (B) POST AT ITS FACILITIES 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 REPRESENTATIVE AND SHALL BE POSTED AND MAINTAINED FOR 60
 CONSECUTIVE DAYS
 
    THEREAFTER IN CONSPICUOUS PLACES WHERE NOTICES ARE CUSTOMARILY
 POSTED.  REASONABLE STEPS SHALL
 
    BE TAKEN TO ENSURE THAT THE 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 6, IN WRITING, WITHIN 30 DAYS FROM THE DATE
 OF THIS ORDER AS TO WHAT
 
    STEPS HAVE BEEN TAKEN TO COMPLY WITH HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JUNE 11, 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 FAIL OR REFUSE TO PROVIDE OFFICIAL TIME TO EMPLOYEE
 JEANNETTE GREEN WHILE SHE IS ENGAGED IN REPRESENTING THE NATIONAL
 TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, DURING MID-TERM LABOR-MANAGEMENT NEGOTIATIONS PURSUANT
 TO SECTION 7131(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    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
 STATUTE.
 
    WE WILL RETROACTIVELY PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN
 OFFICIAL TIME FOR THE PERFORMANCE OF HER REPRESENTATIONAL DUTIES ON MAY
 9, 1980, AND MAKE HER WHOLE FOR THE ANNUAL LEAVE SHE UTILIZED ON THAT
 DATE.
 
                           (AGENCY OR ACTIVITY)
 
    DATE:  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 THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VI,
 BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450, P. O. BOX
 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS, (214)
 767-4996.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    STEPHEN R. SUNDGAARD, ESQ.
    MICHAEL SITCOV, ESQ., ON BRIEF
                            FOR THE RESPONDENT
 
    JAMES E. DUMERER, ESQ.
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  ALAN W. HEIFETZ
                         ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 6-CA-806
 
                                 DECISION
 
    THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN UNFAIR LABOR
 PRACTICE CHARGE FILED ON OCTOBER 31, 1980, WITH THE FEDERAL LABOR
 RELATIONS AUTHORITY.  CONSEQUENTLY, ON DECEMBER 23, 1980, THE REGIONAL
 DIRECTOR, REGION VI, OF THE AUTHORITY ISSUED A COMPLAINT AND NOTICE OF
 HEARING ALLEGING THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF
 THE STATUTE BY REFUSING TO GRANT OFFICIAL TIME TO A UNION REPRESENTATIVE
 ENGAGED IN LABOR-MANAGEMENT NEGOTIATIONS WITH RESPONDENT.  BY ITS
 ANSWER, RESPONDENT ADMITS THE FACTUAL ALLEGATIONS OF THE COMPLAINT BUT
 DENIES THAT THOSE FACTS CONSTITUTE A VIOLATION OF THE STATUTE.
 
    A HEARING WAS HELD ON MAY 20, 1981, IN DALLAS, TEXAS.  ALL PARTIES
 WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO INTRODUCE
 EVIDENCE.  /2/ A POST HEARING BRIEF WAS FILED BY RESPONDENT.
 
    THE FACTS IN THIS CASE ARE SHORT AND SIMPLE.  ON MAY 9, 1980,
 JEANNETTE GREEN, PRESIDENT OF NTEU, CHAPTER 121, AND AN EMPLOYEE OF
 RESPONDENT, MET WITH RESPONDENT FOR THE PURPOSE OF ENGAGING IN MID-TERM
 NEGOTIATIONS CONCERNING A CHANGE IN THE USE OF TYPEWRITERS BY BARGAINING
 UNIT EMPLOYEES.  MS. GREEN WAS REQUIRED TO TAKE ONE HOUR OF ANNUAL LEAVE
 FOR THE TIME SPENT IN THE NEGOTIATIONS ON THAT DATE.
 
    RESPONDENT ADMITS THAT IT HAS REFUSED TO PROVIDE OFFICIAL TIME FOR AN
 EMPLOYEE ENGAGED IN MID-TERM NEGOTIATIONS, AS CHARGED, AND "PROMISES
 THAT IT WILL CONTINUE TO DO SO WHENEVER AND WHEREVER A SIMILAR
 CIRCUMSTANCE ARISES." IT ALSO ACKNOWLEDGES THAT THE AUTHORITY, IN
 INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, HAS INTERPRETED SECTION
 7131(A) OF THE STATUTE AS REQUIRING AGENCIES TO GRANT OFFICIAL TIME TO
 EMPLOYEES REPRESENTING FEDERAL EMPLOYEES UNIONS AT MID-TERM
 NEGOTIATIONS.  HOWEVER, RESPONDENT ARGUES THAT SUCH AN INTERPRETATION IS
 BEYOND THE AUTHORITY OF FLRA AND IS WITHOUT SUPPORT IN THE LEGISLATIVE
 HISTORY OF THE STATUTE OR IN PRIVATE SECTOR LABOR RELATIONS EXPERIENCE.
 
    I CONCLUDE THAT TO OVERRULE A DECISION OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IS BEYOND THE CIRCUMSCRIBED COMPETENCE OF AN ADMINISTRATIVE
 LAW JUDGE HEARING AN UNFAIR LABOR PRACTICE CASE AND THEREFORE, I AM
 CONSTRAINED TO FIND A VIOLATION OF THE STATUTE AS CHARGED IN THE
 COMPLAINT.  ACCORDINGLY, I RECOMMEND THAT THE AUTHORITY ISSUE THE
 FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C):
 
                                   ORDER
 
    ORDERED, THAT THE DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL,
 TOBACCO AND FIREARMS, DALLAS, TEXAS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO AUTHORIZE AND PROVIDE OFFICIAL TIME TO
 EMPLOYEE JEANNETTE
 
    GREEN, PURSUANT TO THE PROVISIONS OF 5 C.F.R. 7131(A), WHILE SHE IS
 ENGAGED IN REPRESENTING
 
    THE NATIONAL TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, AN
 EXCLUSIVE REPRESENTATIVE, DURING
 
    MID-TERM LABOR-MANAGEMENT NEGOTIATIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
 
    (2) TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES
 
    OF THE STATUTE.
 
    (A) PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN OFFICIAL TIME FOR
 THE PERFORMANCE OF HERE
 
    REPRESENTATIONAL DUTIES ON MAY 9, 1980, AND MAKE HER WHOLE FOR THE
 ANNUAL LEAVE SHE UTILIZED
 
    ON THAT DATE.
 
    (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE
 
    FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS THEY SHALL BE
 
    SIGNED BY AN AUTHORIZED REPRESENTATIVE AND SHALL BE TAKEN TO ENSURE
 THAT THE NOTICES ARE NOT
 
    ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIALS.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THE ORDER.
 
                         ALAN W. HEIFETZ
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 18, 1981
    WASHINGTON, D.C.
 
                                 APPENDIX
 
        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 FAIL OR REFUSE TO PROVIDE OFFICIAL TIME TO EMPLOYEE
 JEANNETTE GREEN WHILE SHE IS ENGAGED IN REPRESENTING THE NATIONAL
 TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, DURING MID-TERM LABOR-MANAGEMENT NEGOTIATIONS.
 
    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
 STATUTE.
 
    WE WILL PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN OFFICIAL TIME
 FOR THE PERFORMANCE OF HER REPRESENTATIONAL DUTIES ON MAY 9, 1980, AND
 MAKE HER WHOLE FOR THE ANNUAL LEAVE SHE UTILIZED ON THAT DATE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (