13:0558(94)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms and NTEU and NTEU Chapter 88 -- 1983 FLRAdec CA



[ v13 p558 ]
13:0558(94)CA
The decision of the Authority follows:


 13 FLRA No. 94
 
 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-968
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had violated
 section 7116(a)(1) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.
 Thereafter, the Respondent and the General Counsel filed exceptions to
 the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge 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 hereby adopts the Judge's findings,
 conclusions and Recommended Order as modified below.
 
    In agreement with the Judge and based upon the rationale set forth in
 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 10
 FLRA No. 3 (1982), the Authority finds that the Respondent's refusal to
 grant official time to employees, whose participation, pursuant to
 7131(c) of the Statute, had been deemed necessary by a designated agent
 of the Authority for the purpose of pre-hearing preparation constituted
 a violation of section 7116(a)(1) and (8) of the Statute.
 
    In so finding, the Authority specifically rejects the Judge's
 apparent application of a "reasonableness test" with regard to the
 Regional Director's authority to determine whether an employee is
 necessary for participation in pre-hearing proceedings.  In this regard,
 section 2429.13 of the Authority's Rules and Regulations clearly
 provides 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 . .
       . .
 
                                   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:
 
    (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) Grant, upon request, official time for employees to participate
 in 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) Restore annual leave to employees Martin Connell, Charles "Gary"
 Wilson, Donald Coleman, Aubrey Milstead, Thomas Wood and Jimmie Redeford
 for time used while engaged in pre-hearing preparation as witnesses for
 unfair labor practice proceedings before the Federal Labor Relations
 Authority.
 
    (c) Post at its facilities in its Central Region offices 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.  Reasonable steps shall be taken to insure that such
 Notices are not altered, defaced or covered by any other material.
 
    (d) 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. December 30, 1983
 
                                       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 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 employee in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL restore annual leave to employees Martin Connell, Charles
 "Gary" Wilson, Donald Coleman, Aubrey Milstead, Thomas Wood and Jimmie
 Redeford for time used while engaged in pre-hearing preparation as
 witnesses for proceedings before the Federal Labor Relations Authority.
                                       . . . (Activity)
 
    Dated:  . . .  By:  . . . (Signature) (Title)
 
    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 V, Federal Labor Relations Authority, Suite 1359-A, 175
 W. Jackson Blvd., Chicago, Illinois 60604 and whose telephone number is:
  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    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-968
 
    Sandra LeBold, Esq.
                          For the General Counsel
 
    Michael Sitcov, Esq.
                            For the Respondent
 
    Before:  ELI NASH, JR.
                         Administrative Law Judge
 
                                 DECISION
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., (hereinafter
 called the Statute).  Pursuant to an unfair labor practice charge filed
 on May 14, 1981 by National Treasury Employees Union and National
 Treasury Employees Union Chapter 88 (hereinafter called the Union)
 against Department of the Treasury, Bureau of Alcohol, Tobacco and
 Firearms, (hereinafter called Respondent), the Regional Director, Region
 5, issued a Complaint and Notice of Hearing on May 29, 1981.  The
 complaint alleges that Respondent failed and refused to comply with
 Section 7131(c) of Chapter 71 of Title 5 of the United States Code and
 Section 2429.13 of the Federal Labor Relations Authority's Rules and
 Regulations in violation of Section 7116(a)(1) and (8) of the Statute.
 
    A hearing was held before the undersigned in Cincinnati, Ohio at
 which all parties were represented and were afforded full opportunity to
 examine and cross-examine witnesses and to introduce evidence.  Timely
 briefs were filed and have been considered.
 
    Upon the entire record, including my observation of the witnesses and
 their demeanor, I make the following findings, conclusions and
 recommendations.
 
                             Findings of Fact
 
    At all times material the Union was the collective bargaining
 representative of an appropriate unit of employees located in
 Respondent's Central Region.
 
    On November 7, 1980, Federal Labor Relations Authority attorney
 Gregory A. Miksa wrote Respondent's attorney Michael Sitcov confirming a
 November 6, 1980 telephone conversation involving a request to
 interview, on official time several of Respondents' employees in the
 Louisville, Kentucky and Cincinnati, Ohio areas.  These interviews were
 in connection with proceedings in unfair labor practice hearings in Case
 Nos. 5-CA-535, 5-CA-536 and 5-CA-537, to be held on November 20, 1980.
 Mr. Miksa's correspondence indicates that Mr. Sitcov maintained the
 position that Respondent felt "official time (was) not appropriate for
 such interviews" and that the request was denied.  Respondent does not
 deny that this was its sole position on the matter of official time for
 these interviews.
 
    Similarly, on November 17, 1980, Federal Labor Relations Authority
 attorney Charles R. Prock wrote Mr. Sitcov an almost identical letter,
 to the one referred to above, requesting to interview, on official time
 certain employees in Cincinnati, Ohio.  The interviews were to be
 requested in connection with unfair labor practice Case No. 5-CA-592,
 scheduled to be heard on December 2, 1980.  Mr. Sitcov also denied that
 request as inappropriate.  As with the earlier request, Respondent's
 only position was that such interviews were not appropriate.
 
    On November 19, 1980, Crispen F. Lijek, Respondent's Acting Regional
 Personnel Officer, denied a request of Union President Martin J. Connell
 "for 10 hours spent on FLRA related matters on November 12 and 13, 1980
 and for other pre-hearing meetings and preparations."
 
    J. A. Kamber, Supervisor Inspector, responding to a request from
 Jimmie L. Redeford for official time to meet with Mr. Prock on November
 20, 1980 for pre-trial preparation in Case No. 5-CA-592 stated, "No
 official time is permitted for pre-trial preparation."
 
    A similar answer was given to the November 12, 1980 request of Aubrey
 Milstead by Supervisory Inspector John W. Beauchamp.  Beauchamp stated
 that, "No official time is permitted for pre-trial preparation, however,
 you may use annual leave for the time and purpose as requested."
 Inspector Donald Coleman received an identical response to his request
 for official time from his supervisor J. A. Kamber.
 
    On November 18, 1980, Mr. Miksa and Mr. Prock interviewed the
 Charging Party's witnesses in connection with pre-trial preparation in
 Case Nos. 5-CA-535, 5-CA-536, 5-CA-537 and 5-CA-592.  All of the
 interviews were conducted during normal working hours and each employee
 interviewed used annual leave.
 
    On November 20, 1980, the hearing was held in Case Nos. 5-CA-535,
 5-CA-536, and 5-CA-537.  Among the witnesses called for the Charging
 Party were Martin Connell, Charles "Gary" Wilson and Donald Coleman, all
 of whom were requested by Mr. Miksa on November 7, 1980.
 
    The hearing was held in Case No. 5-CA-592 on December 2, 1980.
 Witnesses for the Charging Party included Martin Connell, Aubrey
 Milstead, Thomas Woods and Jimmie Redeford, all of whom were requested
 for interview by Mr. Prock, on November 17, 1980.
 
    Respondent presented no witnesses.
 
                        Discussion and Conclusions
 
    In Norfolk Naval Shipyard, Portsmouth, Virginia, 5 FLRA No. 105
 (1981) the Authority adopted the conclusion of Chief Administrative Law
 Judge John Fenton that, in essence, states official time is to be
 granted for pre-trial preparation for a formal unfair labor practice
 hearing.  Respondent disagrees with that conclusion asserting that the
 legislative history and relevant case law make it clear that official
 time for pre-trial preparation must be negotiated.  Erroneously in my
 view, Respondent compares preparation for such hearings to negotiations
 where the parties are indeed in a give and take rather than adversary
 position.  Further, under the Rules and Regulations of the Authority,
 Section 2429.13, it is clear that a Regional Director has the authority
 to determine that an employee is necessary for participation in
 pre-trial proceedings and the amount of time required for such
 participation is not subject to review by an Agency.  Thus, where a
 determination has been made by the Regional Director that a witness is
 necessary for preparation there is nothing to bargain about.
 
    Of course a Regional Director in his prosecutorial discretion does
 not have unfettered power to demand unreasonable amounts of official
 time. See Norfolk Naval Shipyard, supra.; Department of the Treasury,
 Internal Revenue Service;  Department of the Treasury, Internal Revenue
 Service, Jacksonville District, Case No. 4-CA-823, OALJ-82-72 (1982).
 However, a review of the record shows that the employees herein were
 requested for only a short period of time and that they were necessary
 to the presentation of the General Counsel's case, since all were called
 as witnesses (except in circumstances where they could not be made
 available) and testified during the proceedings.  It is, therefore,
 found that the request for official time in this matter was established
 to be both reasonable and necessary.  Moreover, the requests were
 summarily denied both by Mr. Sitcov and several of Respondent's
 supervisors, not because no necessity was shown, but because of
 Respondent's position that such official time was inappropriate.
 
    Likewise, the Respondent's contention that proceedings before the
 Impasses Panel are similar in nature is ill founded.  These proceedings
 before the Panel are entirely controlled by the parties with no
 participation by the General Counsel, preparation is an "internal union"
 matter and are by interpretation of the Statute and legislative history
 subject to negotiations.  There is no similarity between the impasse
 proceedings and an unfair labor practice proceeding other than that both
 are adversary proceedings.
 
    Respondent raised a question of necessity, but contends that the fact
 employees were interviewed during the investigation of the charges in
 the proceedings by the same attorney who interviewed them at the
 pre-trial preparation demonstrates a lack of necessity for pre-trial
 interviews.  This argument is unpersuasive.  Some Authority agents are
 involved in two separate roles, first, as the investigator and in many
 instances later, as the prosecutor of a case he or she has investigated.
  However, I see no connection between this and the necessity, in the
 prosecutorial role to prepare witnesses for hearing even though the
 witness may have been interviewed earlier by the same agent who had
 initially investigated the matter.  It is elementary that witnesses who
 testify in judicial proceedings are to be prepared in advance of those
 proceedings.  If for no other reason, such preparation without question
 reduces the length of time required for such hearings, brings the issues
 into clear focus and in many instances results in new information which
 might aid in amicably settling the matter.
 
    Although presenting no witnesses Respondent made several motions at
 the hearing which require a ruling.
 
    Respondent's Motion for Leave to Proceed with Discovery is denied.
 Respondent asserts that lack of discovery will result in an unjust
 administrative procedure in the event a decision adverse to its
 interests is rendered.  Respondent, however, made no showing of what
 rights were to be protected if discovery is permitted.  Neither the
 Statute nor the Rules and Regulations of the Authority provide for such
 pre-trial discovery.  Further, the complaint in this matter involved a
 simple factual situation and apprised Respondent of the nature of the
 allegations in sufficient particularity to enable it to adequately
 prepare its defense, which it did.  Furthermore, the Authority denied
 Respondent's interlocutory appeal on this matter.
 
    Finally, Respondent's allegation that in view of the solicitation of
 the charge by an Authority agent in this case, the complaint should be
 dismissed, is found to lack merit.  Respondent presented no evidence of
 solicitation.  The parties stipulated at the hearing that the Authority
 agent:
 
          Informed the Charging Party that in his view, such conduct was
       violative of the (S)tatute and further advised the Charging Party
       that in order to obtain a determination that such denial of
       official time was violative of the Statute;  and, to obtain an
       appropriate remedy, an unfair labor practice charge would need to
       be filed with the Regional Office.
 
    After conferring with the Union's National Office, Union President
 Martin Connell did indeed file the instant charge.
 
    I agree with the General Counsel that in:
 
          discharging his responsibilities as a public official charged
       with enforcing public rights, to take proper measures calculated
       to effectively remedy all of the unfair labor practices which had
       been revealed by an investigation and all unfair labor practices
       which, due to the statutory scheme, are in the sole and peculiar
       knowledge of his agents. Thus, in my view, the Authority agent,
       once he became aware of
 
 the conduct complained of herein, had a duty to and did properly inform
 the Charging Party of its rights under the Statute allowing any
 subsequent action to be taken by the party.  The facts before me do not
 indicate any campaign to seek out charges, but the Authority agent
 merely informed the Union agent what rights were available under the
 Statute.  This conduct falls far short of solicitation.
 
    Based on the above, it is found that the General Counsel established
 by a preponderance of the evidence that Respondent refused to comply
 with Section 7131(c) of the Statute and thereby violated Section
 7116(a)(1) and Section 7116(a)(8) of the Statute.
 
    Having found that Respondent violated Section 7116(a)(1) and
 7116(a)(8) of the Statute, I recommend that the Authority adopt the
 following Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority 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:
 
          (a) Refusing to allow official time for pre-hearing preparation
       for employees determined to be necessary as witnesses in unfair
       labor practice proceedings.
 
          (b) In any like to related manner, failing or refusing to
       comply with any provision of the Federal Service Labor-Management
       Relations Statute.
 
          (c) In any like or related manner, interfering with,
       restraining, or coercing any employees in the exercise of any
       right under the Federal Service Labor-Management Relations
       Statute.
 
          2.  Take the following affirmative action in order to
       effectuate the purposes and policies of the Statute:
 
          (a) Grant, upon request, official time for employees to
       participate in pre-trial preparation for Federal Labor Relations
       Authority unfair labor practice proceedings where necessary.
 
          (b) Restore annual leave to employees Martin Connell, Charles
       "Gary" Wilson, Donald Coleman, Aubrey Milstead, and Thomas Wood
       and Jimmie Redeford for time used while engaged in pre-trial
       preparation as witnesses for unfair labor practice proceedings
       before the Federal Labor Relations Authority.
 
          (c) Post at its Central Region Offices, 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 the Principal Regional Official and shall be posted
       and maintained by her for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices to employees are customarily posted.  Reasonable
       steps shall be taken by Respondent to insure that such notices are
       not altered, defaced, or covered by any other material.
 
          (d) Pursuant to Section 2423.30 of the 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.
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  May 21, 1982
 
    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 TITLE 5 OF THE UNITED STATES CODE FEDERAL
 SERVICE
 LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES
 THAT:
 
    WE WILL NOT refuse to grant official time to employees for pre-trial
 preparation for unfair labor practice proceedings before the Federal
 Labor Relations Authority.
 
    WE WILL NOT fail or refuse to comply with any provision of the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce any employee in the exercise of any right under the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL restore annual leave to employees Martin Connell, Charles
 "Gary" Wilson, Donald Coleman, Aubrey Milstead and Thomas Wood and
 Jimmie Redeford for time used while engaged in pre-trial preparation as
 witnesses for proceedings before the Federal Labor Relations Authority.
                                       . . . (Agency or Activity)
 
    Dated:  . . .  By:  . . . (Signature)
 
    This Notice must remain posted f