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
       t