21:0715(90)CA - 162nd Tactical Fighter Group, Arizona Air NG, Tucson, Ariz. and AFGE, Local 2924 -- 1986 FLRAdec CA



[ v21 p715 ]
21:0715(90)CA
The decision of the Authority follows:


 21 FLRA No. 90
 
 162nd TACTICAL FIGHTER GROUP 
 ARIZONA AIR NATIONAL GUARD 
 TUCSON, ARIZONA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2924, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-30429
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain 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;  the General Counsel filed a brief answering
 Respondent's exceptions;  the Charging Party filed an opposition to
 Respondent's exceptions and cross-exceptions to the Judge's Decision;
 and the Respondent filed an opposition to the Charging Party's
 cross-exceptions.  /1/
 
    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 hereby adopts the
 Judge's findings, conclusions and recommended Order.
 
    In agreement with the Judge, we conclude that "(o)nce the
 participation of an employee has been deemed necessary by the Authority
 in any phase of any proceeding before the Authority, . . . (t)here is no
 discretion in the agency to determine whether or not an employee should
 be on official time. . . ." Respondent's imposition of the condition
 that those employees whose participation had been deemed necessary
 either had to wear the appropriate military work uniform in order to
 receive official time or had to participate at the hearing in an annual
 leave status, interfered with the protected rights of those employees
 under the Statute in violation of section 7116(a)(1) of the Statute.
 /2/ Contrary to the Respondent's contention, the Judge did not find that
 the Respondent violated section 7131(c).  Rather, the record indicates
 that the Judge found a section 7116(a)(1) violation premised upon the
 requirements of section 7131(c) and the provisions of section 7132
 concerning the issuance of subpoenas.  Such matters were fully litigated
 at the hearing with all parties having had the opportunity to present
 evidence and witnesses relevant to their positions.  /3/ Consequently,
 the Authority finds no merit in the Respondent's contention that it was
 denied due process in connection with this portion of the Judge's
 Decision.
 
                                   ORDER
 
    Pursuant to section 7118 of the Statute and section 2423.29 of the
 Authority's Rules and Regulations, the Authority hereby orders that the
 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson,
 Arizona shall:
 
                        1.  Cease and desist from:
 
          (a) Requiring its employees to wear the military work uniform
       in order to be granted official time for participation in hearings
       before the Federal Labor Relations Authority 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 Statute:
 
          (a) Provide official time to those employees whose
       participation in hearings before the Federal Labor Relations
       Authority on June 23 and 24, 1983 and March 9, 1984 had been
       deemed necessary by a designated agent of the Authority and make
       them whole for any any annual leave utilized for that purpose.
 
          (b) Post at its Tucson, Arizona 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 the Commander, or a designee, 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.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VIII, 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., May 9, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ 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 require our employees to wear the military work uniform
 in order to be granted official time for participation in hearings
 before the Federal Labor Relations Authority 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 employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL provide official time to those employees whose participation
 in hearings before the Federal Labor Relations Authority on June 23 and
 24, 1983 and March 9, 1984 had been deemed necessary by a designated
 agent of the Authority and make them whole for any annual leave utilized
 for that purpose.
                                       (Agency or Activity)
 
    Dated:  . . .  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 its provisions, they may communicate directly with the Regional
 Director, Region VIII, Federal Labor Relations Authority, whose address
 is:  350 South Figueroa Street, 10th Floor, Los Angeles, California
 90071 and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 8-CA-30429
 
 162ND TACTICAL FIGHTER GROUP, ARIZONA AIR NATIONAL GUARD
 TUCSON,
 ARIZONA
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF G0VERNMENT EMPLOYEES, LOCAL 2924,
 AFL-CIO
 
    Victor R. Schwanbeck, Esquire
    For the Respondent
 
    Kevin M. Grile, Esquire
    Mr. Richard Webster
    For the Charging Party
 
    Jonathan S. Levine, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns an amended unfair labor practice complaint
 issued by the Regional Director, Region Eight, Federal Labor Relations
 Authority, Los Angeles, California against the 162nd Tactical Fighter
 Group, Arizona Air National Guard, Tucson, Arizona (Respondent), based
 on a charge filed by the American Federation of Government Employees,
 Local 2924, AFL-CIO (Charging Party or Union).  The amended complaint
 alleged, in substance, that Respondent violated Section 7116(a)(1) of
 the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section
 7101 et seq. (the Statute), by instructing those employees who had been
 subpoenaed by the Authority to testify in pending unfair labor practice
 hearings scheduled for June 24, 1983 and March 9, 1984 to wear the
 appropriate military work uniform if they would be participating while
 in an official duty status.  The complaint alleged that certain of the
 subpoenaed employees attended June 24, 1983 hearing in an annual leave
 status and civilian clothing rather than submit to the directive.
 
    Respondent's answer denied any violation of the Statute.
 
    A hearing was held in Tucson, Arizona.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusion of law, and
 recommendations.
 
                             Findings of Fact
 
    At all times material, Respondent has been, and is now, an agency
 within the meaning of section 7103(a)(3) of the Statute.  Respondent is
 a Fighter Training Group located at the Tucson International Airport
 approximately eight miles from downtown Tucson.  It has a full time
 military mission to provide combat air training for student pilots and
 military training for its air members.  It is made up of approximately
 1,112 military members of which approximately 410 are also Air National
 Guard technicians.  The technicians' civilian employment status is
 conditioned on maintenance of military membership in the Air National
 Guard.
 
    The Charging Party is a labor organization within the meaning of
 section 7103(a)(4) of the Statute.  It has been certified as the
 exclusive representative of an appropriate bargaining unit at
 Davis-Monthan Air Force Base, has negotiated a collective bargaining
 agreement with David-Monthan, and provides representation for unit
 employees at David-Monthan.
 
    The Charging Party sought to represent a unit of employees of
 Respondent.  A representation was held on December 15, 1982.  Following
 the election, objections to the election and unfair labor practice
 charges were filed.  A hearing involving Respondent and the Charging
 Party was scheduled for June 23, 1983 in Case Nos. 8-CA-30098,
 8-CA-30099 and 8-RO-30002 before an Administrative Law Judge of the
 Authority.  Respondent, through then Major Willie D. Kyzer, became aware
 of this hearing on or about March 1983 and assumed that some of the
 employees would be called to testify at the hearing.
 
    Prior to the hearing, on or about June 7, 1983, some employees of
 Respondent, including Jon C. Webb, Ernesto Lopez, and Patrick McIntyre,
 were subpoenaed for the hearing by the Regional Director, Region 8 at
 the request of Deborah S. Wagner, attorney for the General Counsel.  The
 subpoenas stated on their face that "any witness who is employed by the
 Federal Government shall be granted official time. . . . " Respondent
 had knowledge of these subpoenas and, in addition, received a letter
 from Wagner dated June 7, 1983 which stated, in part, as follows:
 
          As you know an unfair labor practice hearing on the
       above-referenced matter will be held on June 23, 1983.  The
       following individuals may be called by the General Counsel as
       witnesses in this matter:
 
          Robert Herreras
 
          Pat McIntyre
 
          George Leflohic
 
          Ernesto W. Lopez
 
          Jimmie M. North
 
          Joe Tyrone
 
          Jon C. Webb
 
          Tom Pachos
 
          In accordance with Section 2429.13 of the Rules and Regulations
       of the Federal Labor Relations Authority, an employee who
       participates as a witness in an unfair labor practice proceeding
       is entitled to official time to prepare for and participate in the
       hearing.  Kindly notify the supervisor involved that these
       individuals are entitled to official time for such purposes.
 
          In accordance with Section 2429.13 of the Rules and Regulations
       of the Federal Labor Relations Authority, an employee who
       participates as a witness in an unfair labor practice proceeding
       is entitled to official time to prepare for and participate in the
       hearing.  Kindly notify the supervisor involved that these
       individuals are entitled to official time for such purposes.
 
    Upon receipt of the June 7, 1983 letter, Respondent researched the
 matter to determine what the status and entitlements would be for
 employees participating in the hearing.  The attire of National Guard
 technicians is governed by the National Guard Bureau's Technician
 Personnel Publications.  The applicable regulation, TPR 300, 302.7-6, 17
 March 1981, provided, in part, as follows:
 
          7-6 WEARING OF THE MILITARY UNIFORM
 
          Technicians in the excepted service will wear the military
       uniform appropriate to their service and federally recognized when
       performing technician duties and while attending courses of
       instruction at military service schools and at the National Guard
       Professional Education Center, Camp Robinson, Little Rock,
       Arkansas.  They will comply with the standards contained in the
       appropriate regulations pertaining to grooming and wear of the
       military uniform (AF 600-20, AR 670-5, AR 670-30, AFR 35-10).
       Official time will not be used for changing to or from the
       military uniform at the work site.  When an Adjutant General
       determines that the uniform is inappropriate for certain positions
       or situations, he will forward his determination to the Chief,
       National Guard Bureau for review.  If warranted, the CNGB will
       authorize other appropriate attire.  These provisions apply to all
       technicians required to be members of the National Guard as a
       condition of employment, unless otherwise specifically excluded by
       a negotiated labor agreement.  The following situations have been
       determined to be inappropriate for wear of the military uniform
       and do not require prior approval:
 
          a.  Travel by commercial or private transportation while in an
       official travel status.
 
          b.  While attending courses of instruction in a technician
       status at locations other than military institutions.
 
          c.  Labor organization representatives engaged in labor
       agreement negotiations.
 
          d.  Participation as data collectors during the conduct of
       Federal Wage System surveys.
 
          e.  While serving as hearing examiners.
 
          f.  During pregnancy.
 
    No request was made to the Chief, National Guard Bureau by the Union,
 General Counsel, or Respondent for a waiver from compliance with TPR
 300, 302.7-6.  Securing a waiver through the procedure outlined in the
 regulation takes a considerable amount of time.
 
    On June 21, 1983, supervisor Ernie Pain called employees Pat
 McIntyre, Ernie Lopez, and George Leflohic together and informed them
 that they must wear the blue uniform to the FLRA hearing.  On June 22,
 1983, Respondent by Major Willie D. Kyzer, sent a letter to all of
 Respondent's employees who were participating in the hearing, including
 those noted above who had been the subject of FLRA Attorney Wagner's
 letter and subpoenaed by the Authority at the request of the General
 Counsel to appear on behalf of the General Counsel and the Charging
 Party.  The letter provided, in part, as follows:
 
          Individuals are authorized official duty status while
       participating in the hearing plus reasonable travel time.
       Individuals in an official duty status will be required to wear
       the appropriate military work uniform.  Time cards will reflect
       individual personnel present for duty.
 
    Some of the employees subpoenaed by the Authority objected to the
 wearing of the uniform to the hearing as unfair, insulting, and on the
 basis that technicians called for jury duty in the past were not
 required to wear uniforms.  They complained to Respondent and to an
 attorney for the General Counsel, FLRA.  Respondent was aware as early
 as February 1983 that some of its employees objected to the wearing of
 the military uniform.  Col. John M. Harnett, Respondent's Air Commander,
 responded to a request that employees be allowed to attend the hearing
 in civilian clothing.  He stated that he was required to comply with the
 regulations and could not authorize employees to attend the hearing in
 civilian clothing.  However, in recognition of some of the deep-seated
 feelings, he stated that he had no objection to employees taking annual
 leave for the hearing and wearing clothing of their choice.  He stated
 that if they did so, they would not be entitled to receive any
 entitlements.  Employees, including those deemed necessary by the
 General Counsel and subpoenaed to appear on behalf of the General
 Counsel and the Charging Party, were required to appear in uniform in
 order to receive official time.
 
    On June 23 and 24, 1983, the following individuals appeared and/or
 testified as witnesses for the General Counsel on behalf of the Charging
 Party concerning alleged unfair labor practices by Respondent:  Roberto
 Herreras, George Leflohic, Ernesto W. Lopez, Jimmie M. North, Jon C.
 Webb, Pat McIntyre, Tom Pachos, and Joe Tyrone.  On June 23, Herreras,
 Lopez and Webb appeared in civilian attire while the remainder wore
 military uniform.  On June 24, Herreras, Lopez, North, Webb and Tyrone
 wore civilian clothing and the rest wore their uniforms.
 
    On June 23 and 24, 1983, Webb, while under subpoena for the hearing,
 took annual leave rather than appear in military attire.  Webb testified
 for the General Counsel.
 
    On June 23, 1983, Lopez, while under subpoena for the hearing,
 reported to work at 6:15 a.m.  At 9:00 a.m. he was put on annual leave
 status because he changed to civilian clothes for hearing.  Lopez drove
 to the hearing and remained at the hearing all day, but was not called
 to testify.
 
    On June 24, 1983, Lopez reported directly to the hearing in civilian
 clothing.  He remained at the hearing all day, as instructed, but was
 not called to testify.  Lopez was also in annual leave status on June
 24.
 
    On June 23, 1983, McIntyre while under subpoena for the hearing, also
 reported to work at 6:15 and worked up until 9:00 a.m.  At this time, he
 changed from his fatigues to dress blues and reported to the courthouse.
  McIntyre wished to wear civilian clothing, but did not have any annual
 leave at the time.  Mcintyre did not return to work as the hearing
 lasted until 5:00 or 5:30 p.m.  On June 24, 1983, McIntyre reported
 directly to the hearing, as instructed, where he remained for the
 remainder of the day.  Mcintyre testified for the General Counsel.
 
    On March 8, 1984, Respondent, by supervisor Pain and Lt. Col. Kyzer,
 told McIntyre and Lopez that they would have to adhere to the June 22,
 1983 Kyzer letter for the March 9, 1984 hearing;  that is, that the
 witnesses would have to wear military clothing in order to be paid
 official time, or they would have to take annual leave if they appeared
 in civilian clothes.  At the March 9, 1984 hearing, Webb appeared in
 civilian attire, while McIntyre and Lopez appeared in uniform.  Webb,
 Lopez, and McIntyre were all under subpoena by the General Counsel of
 the Authority for the March 9, 1984 hearing.
 
    As noted, Respondent's employees are required to wear their uniforms
 when performing day-to-day technicians duties.  They are not authorized
 to wear their uniforms off-base unless they are going to work, coming
 home from work, or in emergency situations.  They are also not
 authorized to wear their uniforms after duty hours for non-Guard
 functions at off-base bars or restaurants.  Employees have served on
 jury duty in civilian attire while in a paid leave status.  They can
 also attend women conferences and Hispanic conferences in civilian
 attire and have done so with the knowledge of Respondent.  According to
 Respondent, employees can attend women and Hispanic conferences in
 civilian attire because they are attending courses of instruction while
 in a military technician status pursuant to the above noted provision of
 TPR 300.
 
               Discussion, Conclusions, and Recommendations
 
    The General Counsel and the Charging Party contend that Respondent's
 requirement that those employees subpoenaed by the Authority to testify
 in a hearing wear the military uniform in order to receive official time
 interfered with, restrained, and coerced employees in the exercise of
 their statutory rights in violation of section 7116(a)(1) of the
 Statute.  The General Counsel and Charging Party maintain that the
 requirement was designed to stress to the employees that management
 exercised control over them even to the extent of telling them what they
 could and could not wear to an off-base hearing before the Authority
 where employees sought vindication of their rights.  The General Counsel
 relies upon the timing of the issuance of the uniform instructions to
 employees, the alleged absence of a legitimate work-related purpose for
 the military uniform requirement, Respondent's alleged discriminatory
 application of its uniform regulation, and the reaction of the
 employee-witness to the military work uniform orders.
 
    Respondent defends on the basis, inter alia, that technicians are
 required by National Guard Bureau regulations to wear the uniform while
 performing technician duties;  testifying at an Authority hearing does
 not fall within one of the enumerated exceptions;  the failure to
 request a uniform waiver pursuant to TPR 302.7-6 estoppes the claim;  it
 would have been impossible to interfere with the employee's ability to
 unionize because of pending litigation;  and the General Counsel failed
 to prove that the directives interefered with employees rights.
 
    Section 7131(c) of the Statute /4/ empowers the Authority to make
 determinations as to whether employees participating in proceedings
 before it shall be authorized official time.  Section 7132 of the
 Statute also authorizes the Authority and its designees to issue
 subpoenas requiring the attendance and testimony of witnesses.  /5/ This
 language in the Statute has been implemented by the Authority in
 sections 2429.13 and 2429.14 of the Rules and Regulations.  /6/
 
    Once the participation of an employee has been deemed necessary by
 the Authority in any phase of any proceeding before the Authority, as
 here, that "employee shall be granted official time for such
 participation." There is no discretion in the agency to determine
 whether or not an employee should be on official time once that employee
 participation has been deemed necessary.  Department of Health and Human
 Services, Social Security Administration, Great Lakes Program Service
 Center, 10 FLRA 510, 512 (1982).
 
    Respondent's position that all technicians participating in the
 hearing were performing technician duties and, therefore, were required
 to wear the military uniform in order to receive official time is
 mistaken.  The record reflects that those technicians subpoenaed by the
 Authority on behalf of the General Counsel participated for, or on
 behalf of, the Charging Party.  They testified or appeared in support of
 allegations raised by the Charging Party concerning election objections
 and unfair labor practice charges.  Section 7131 of the Statute was
 designed to authorize official time (paid time) for employees to engage
 in certain activities concerning labor-management relations.  H.R. Rep.
 No. 95-1043, p. 58 (1978).  As noted, Section 7131(c) empowers the
 Authority to make determinations as to whether employees participating
 for, or on behalf of, a labor organization in proceedings before the
 Authority shall be authorized official time for such purpose "during the
 time the employee otherwise would be in a duty status." This qualifying
 language strongly suggests that employees participating for, or on
 behalf of, a labor organization during such proceedings are not
 considered in a duty status.  Nor is the conclusion warranted that
 employees so participating are acting in their "official capacity," "on
 the job," or on "official business" of the government.  See Bureau of
 Alcohol, Tobacco and Firearms v. FLRA, 104 S. Ct. 439 (1983.
 
    Respondent could not require the subpoenaed employees to take leave.
 An employee on official time is on paid time, entitled to his or her
 usual compensation, and is not in a leave status.
 
    Respondent's imposition of the condition that those employees whose
 participation had been deemed necessary by the Authority either had to
 wear the uniform in order to receive official time or had to participate
 in the hearing in an annual leave status, interfered with the right of
 these employees to receive official time when their participation had
 been determined to be necessary by the Authority.  Accordingly,
 Respondent's conduct violated section 7116(a)(1) of the Statute /7/ as
 alleged.  Department of the Treasury Internal Revenue Service, 15 FLRA
 No. 108 (1984);  Department of the Treasury, Bureau of Alcohol, Tobacco
 and Firearms, 13 FLRA No. 94 (1983);  U.S. Department of Justice,
 Federal Prison System, 10 FLRA No. 109, 10 FLRA 662 (1982);  Department
 of Health and Human Services, Social Security Administration, Great
 Lakes Program Service Center, 10 FLRA No. 90, 10 FLRA No. 510 (1982);
 Department of the Treasury;  Bureau of Alcohol, Tobacco and Firearms, 10
 FLRA No. 3, 10 FLRA 10 (1982);  Department of the Air Force, Space
 Division, Los Angeles, California, 6 FLRA No. 78, 6 FLRA 439 at 451
 (1980).  /8/
 
    Based on the foregoing findings and conclusions, it is recommended
 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 162nd Tactical Fighter Group, Arizona
 Air National Guard, Tucson, Arizona, shall:
 
    1.  Cease and desist from:
 
          (a) Requiring its employees to wear the military work uniform
       in order to be granted official time for participation in hearings
       before the Federal Labor Relations Authority 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 Statute.
 
          (a) Provide official time to those employees whose
       participation in hearings before the Federal Labor Relations
       Authority on June 23 and 24, 1983 and March 9, 1984 had been
       deemed necessary by a designated agent of the Authority and make
       them whole for any annual leave utilized for that purpose.
 
          (b) Post at its Tucson, Arizona facilities copies of the
       attached Notice marked "APPENDIX" on forms to be furnished by the
       Authority.  Upon receipt of such forms, they shall be signed by
       the Commander 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 Commander shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (c) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
       Director, Region 8, Federal Labor Relations Authority, Los
       Angeles, California, in writing, within 30 days from the date of
       this order, as to what steps have been taken to comply herewith.
 
                                       /s/ Garvin Lee Oliver
                                       Administrative Law Judge
 
    Dated:  September 6, 1984
    Washington, D.C.
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Part 2423 of the Authority's Rules and Regulations, entitled
 "Unfair Labor Practice Proceedings," has no provision for the filing of
 an "opposition to cross-exceptions," and the Respondent did not seek
 leave to file such opposition pursuant to section 2429.26 of the
 Authority's Rules and Regulations.  Consequently, the Authority has not
 considered herein the Respondent's opposition to the Charging Party's
 cross-exceptions to the Judge's Decision.
 
    (2) We find it unnecessary to pass upon the Judge's discussion
 regarding the duty status of employees participating in Authority
 proceedings in these circumstances.
 
    (3) A violation of section 7116(a)(8) was not alleged.
 
    (4) Section 7131(c) provides:
 
          (c) Except as provided in subsection (a) of this section, the
       Authority shall determine whether any employee participating for,
       or on behalf of, a labor organization in any phase of proceedings
       before the Authority shall be authorized official time for such
       purpose during the time the employee otherwise would be in a duty