15:0506(108)CA - Treasury, IRS and Treasury IRS Jacksonville District and NTEU -- 1984 FLRAdec CA
[ v15 p506 ]
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.