[ v24 p274 ]
24:0274(33)CA
The decision of the Authority follows:
24 FLRA No. 33
AIR FORCE LOGISTICS COMMAND
McCLELLAN AIR FORCE BASE, CALIFORNIA
Respondent
and
DORA M. SOLORIO, AN INDIVIDUAL
Charging Party
Case No. 9-CA-40168
DECISION AND ORDER
I. Introduction
The Administrative Law Judge issued the attached 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, and the General Counsel filed an opposition
thereto.
Pursuant to section 2423.29 of the AuthorityS 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 as modified.
II. Analysis
The Judge found,and we agree, that Respondent violated section
7131(c) of the Statute and section 2429.13 of the Authority's
regulations by refusing to grant the Charging Party, Dora M. Solorio,
official time and travel and per diem expenses for her appearance at an
unfair labor practice hearing in another case pursuant to a subpeona
issued by a designated agent of the Authority. Respondent's refusal
violated section 7116(a)(1) and (8) of the Statute.
In so concluding, we note that Respondent argues in essence that its
conduct did not violate section 7131(c) of the Statute as interpreted by
section 2429.13 of our regulations. In sum, Respondent contends that
Respondent's arguments are similar to those raised in Department of the
Air Force, Headquarters Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 24 FLRA No. 26 (1986), we reject them for the same
reasons stated in our decision in that case, which focused primarily on
the travel and per diem aspect of section 2429.13.
Respondent in this proceeding also challenges the Judge's conclusion,
based on our regulation, that Respondent is obligated to grant official
time to the individual Charging Party. Respondent contends that it has
no obligation to grant official time because: (1) the individual was
not "particupating for, or on behalf of, a labor organization" (see
section 7131(c) of the Statute); and (2) the individual, an employee of
the Respondent, testified at an unfair labor practice hearing in a
matter in which Respondent was not a Charged Party and had no interest.
As to Respondent's first argument, we noted in Wright-Patterson Air
Force Base the development and purposes of section 2429.13 of our
regulations. That regulation continued a long-standing practice that
employees participating in third-party administrative proceedings in the
federal sector labor-management relations program receive official time
for such participation. Section 7131(c) of the Statute was not intended
to change that practice, as reflected by the statement in the House
Committee Report that, pursuant to that section, the Authority is
empowered "to make determinations as to whether employees participating
in proceedings before the Authority shall be authorized official time."
H.R. Rep. No. 95-1043, 95th Cong., 2d Sess. 58 (1978).
Section 2429.13, providing for the granting of official time for
employees participating in Authority proceedings, is consistent not only
with this statement of Congressional intent but also with the purposes
of the Statute. To limit official time for employees participating in
Authority proceedings based on whose behalf the employee is testifying
would hamper the Authority's ability to fulfill its responsibilities
under the Statute, instead of contributing to that process as intended
by section 7131(c). Rather than assisting in the resolution of unfair
labor practice and representation matters, a determination by an
Authority agent to require the participation of an employee might, under
Respondent's theory, raise collateral issues over the employee's
participation -- that is, on whose behalf was the employee participating
so as to be entitled to official time. We believe that Congress
intended to empower the Authority to determine whether employees
participating in proceedings before the Authority shall be authorized
official time, and that intent is effectuated in section 2429.13 of our
regulations.
As to Respondent's second argument, we agree with the Judge that the
case cited by Respondent are inapposite. As the Judge noted, those
cases apply section 7131(a) of the Statute, not section 7131(c), and the
reasons for the limitations present in those cases do not apply to a
witness called by the General Counsel to participate in proceedings
before the Authority.
Finally, with respect to the Judge's recommended Order, we have
modified the Order for consistency with remedial orders previously
issued in substantially similar circumstances. See, for example,
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 10
FLRA 10 (1982). Our modification requires that the employee be made
whole for the leave without pay for which she was charged, and requires
that the employee submit a properly documented voucher in order to be
reimbursed for her travel and per diem expenses. In this latter regard,
we agree with the Judge that because the employee had been informed in
advance by her supervisor that she would not be paid for these expenses,
it would have been futile for her to file a voucher, and her failure to
do so does not preclude the finding of a violation.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Air Force Logistics Command, McClellan Air Force Base,
California, shall:
1. Cease and desist from:
(a) Denying official time to its employees for attendance at and
participation in unfair labor practice proceedings before the Federal
Labor Relations Authority 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 its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Grant Dora M. Solorio official time and, upon submission of a
properly documented voucher, reimburse her for her travel and per diem
expenses as appropriate, for January 16, 1984, when she appeared
pursuant to subpoena at a hearing of the Federal Labor Relations
Authority, and make her whole for the time she was charged with leave
without pay for that purpose.
(b) Post at its facilities at the Air Force Logistics Command,
McClellan Air Force Base, California, 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 a senior official, and
shall be posted and maintained for 60 consecutive days thereafter, in
conscpicuous 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 IX, 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., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 and
participation in unfair labor practice proceedings before the Federal
Labor Relations Authority 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 grant Dora M. Solorio official time and, upon submission of a
properly documented voucher, reimburse her for her travel and per diem
expenses as appropriate, for January 16, 1984, when she appeared
pursuant to subpoena at a hearing of the Federal Labor Relations
Authority, and make her whole for the time she was charged with leave
without pay for that purpose.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority, Region IX, whose
address is: 901 Market Street, Suite 220, San Francisco, CA 94103-9991,
and whose telephone number is: (415) 995-5000.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-40168
AIR FORCE LOGISTICS COMMAND, McCLELLAN
AIR FORCE BASE, CALIFORNIA
Respondent
and
DORA M. SOLORIO
Charging Party
Major Charles L. Brower, Esq.
For the Respondent
Stefanie Arthur
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. Section 7101 et seq., 92 Stat. 1191 (hereinafter referred
to as the Statute), and the Rules and Regulations of the Federal Labor
Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
On February 24, 1984, Dora M. Solorio, an individual, filed an unfair
labor practice charge against the Air Force Logistics Command, McClellan
Air Force Base, California (hereinafter called Respondent and AFLC,
McClellan AFB). This charge was amended on May 22, 1984 and was amended
a second time on July 3, 1984. On July 11, 1984, the General Counsel of
the FLRA, by the Director of Region IX, issued a Complaint and Notice of
Hearing alleging that AFLC violated Section 7116(a)(1) and (8) of the
Statute by failing and refusing to grant Solorio official time, travel
and per diem expenses for her appearance at an unfair labor practice
hearing in response to subpena issued by the FLRA Director of Region IX.
Respondent filed a timely Answer denying that it had violated the
Statute.
A hearing was conducted before the undersigned in San Francisco,
California. Respondent and General Counsel of the FLRA were represented
and afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. The parties
entered into an extensive stipulation of facts. Post-hearing briefs
have been filed and have been fully considered.
Based upon the entire record in this matter, including the
stipulation of facts, I make the following:
Findings of Fact
A. The Air Force Organization
The Department of the Air Force is a primary national subdivision of
the Department of Defense (DOD). It is divided into "major commands"
which are organized on a functional basis in the United States and on an
area basis overseas. The Air Force Logistics Command (AFLC) is one of
these major commands.
AFLC is divided into five Air Logistics Centers (ALCs), one of which
is known as Sacramento ALC at McClellan AFB, California. AFLC,
McClellan AFB, California, the Respondent in the instant case, is an
agency within the meaning of Section 7103(a)(3) of the Statute.
At all times material to the instant case Dora Solorio was an Air
Force employee at McClellan AFB, as well as Chief Steward and Second
Vice President of American Federation of Government Employees Local
1857, (hereinafter called AFGE Local 1857), which represents an
appropriate unit of Air Force employees at McClellan. /1/
B. The Defense Logistics Agency Organization
The Defense Logistics Agency (hereinafter called DLA) is a primary
national subdivision of the DOD. DLA consists of 25 primary-level field
activities, one of which is the Defense Property Disposal Service
(DPDS).
DPDS is divided into three Defense Property Disposal Regions (DPDRs)
- The Ogden (Utah) Region, the Memphis (Tennessee) Region, and the
Columbus (Ohio) Region - each of which is made up of several Defense
Property Disposal Offices (DPDOs). The Ogden DPDR consists of 27 DPDOs,
one of which is located on McClellan AFB, California. It is referred to
as DPDO-McClellan.
AFLC McClellan AFB and DPDO-McClellan are separate organizations
within DOD. Although they are both subordinate elements of DOD, they
are not interrelated in any organizational manner. They have separate
personnel manning, budgets, missions, organizations, regulations, and
chains of command.
C. The History of Case No. 9-CA-30471
On July 8, 1983 Ezell Anderson, Jr., a DLA employee at the DPDO on
McClellan, filed an unfair labor practice charge in Case No. 9-CA-30471,
against DPDO-McClellan and DPDR-Ogden. The Regional Director of Region
IX of the FLRA consequently issued a complaint naming the Defense
Logistics Agency, DPDR-Ogden, and DPDO-McClellan as the Respondent and
naming Anderson as the Charging Party.
The complaint in 9-CA-30471 alleged (1) that the Respondent therein
had violated Sections 7116(a)(1) and (2) of the Statute by suspending
Anderson because he had engaged in activities protected by Section 7102
of the Statute, and (2) that the Respondent therein had violated Section
7116(a)(1) of the Statute when the Chief of DPDO-McClellan threatened to
fire the Charging Party because he had sought union representation.
D. The Solorio Subpoena in Case No. 9-CA-30471
On December 30, 1983, the Regional Director of Region IX, pursuant to
a request by Counsel for the General Counsel made under 5 C.F.R. Section
2429.7, subpenaed Solorio, an Air Force employee, to testify in the
hearing of Case No. 9-CA-30471 involving DLA and the DLA employee.
Solorio was subpenaed (1) to testify about the McClellan/AFGE Local 1857
collective bargaining agreement procedures prescribing the manner in
which Air Force employees were to request union representation; (2) to
corroborate that Anderson had used that McClellan/AFGE Local 1857
procedure in the past; and (3) that Anderson's supervisor had required
requests for union representation to be in writing.
Prior to the hearing, Solorio verbally requested Respondent's labor
relations officer to authorize official time and transportation and per
diem expenses associated with her appearance at the hearing. Because
the hearing involved a DLA bargaining unit, and not the bargaining of
which Solorio was a member, the labor relations officer denied Solorio's
request.
On January 16, 1984, Solorio testified at the hearing in Case No.
9-CA-30471. There was no objection to her testimony as being
unnecessary. For her absence on January 16 she was charged with 8 hours
leave without pay. She incurred transportation and per diem expenses of
$46.57.
At no time after that hearing did Solorio file a voucher requesting
reimbursement for her transportation or per diem expenses.
Discussion and Conclusions of Law
Section 7131(c) of the Statute 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
status."
Section 2429.13 of the FLRA's and Regulations, 5 C.F.R. Section
2429.13, provides:
If the participation of any employee in any phase of any
proceeding before the Authority . . . including the participation
in hearings . . . is deemed necessary by . . . the General Counsel
. . . the Regional Director . . . such employee shall be granted
official time . . . In addition, necessary transportation and per
diem expenses shall be paid by the employing activity or agency.
Section 2429.13 of the FLRA's Rules and Regulations is the FLRA's
implementation of Section 7131(c) of the Statute. Interpretation and
Guidance, 2 FLRA 264, 270 (1979) and Department of the Treasury, Bureau
of Alcohol, Tobacco and Firearms, 10 FLRA 10 (1982).
Although Respondent makes cogent arguments with respect to the proper
application of Section 7131(c) of the Statute, I must reject them
because I am bound by the FLRA's interpretation and implementation of
that section of the Statute and therefore I am constrained to apply
Section 2429.13 of the FLRA's Rules and Regulations. Thus in the
instant case an application of the clear terms of Section 2429.13 of the
FLRA's Rules and Regulations entitles Solorio to official time and
necessary transportation and per diem expenses, to be furnished by her
employing activity, AFLC, McClellan AFB, for her response to the subpena
issued by the FLRA Regional Director of Region IX requiring Solorio to
appear at the unfair labor practice hearing in Case No. 9-CA-30471. Cf.
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
supra; Department of the Treasury, Internal Revenue Service, 15 FLRA
No. 108 (1984).
Respondent's reliance on Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 104 S. Ct. 439 (1983) is misplaced. That case deals with the
FLRA's interpretation of Section 7131(a) of the Statute which deals with
official time allowanes to employees for collective bargaining
negotiations. In holding that when Section 7131(a) of the Statute
requires official time, this does not include travel and per diem
expenses, the Supreme Court explicitly left open whether the FLRA is in
error in interpreting Section 7131(c) of the Statute as requiring travel
and per diem expenses for employees appearing on official time at
hearing. The Court stated specifically at footnote 9 at page 445:
"The fact that the Authority interpreted two similar provisions
of the Act consistently does not, however, demonstrate that either
interpretation is correct. We, of course, express no view as to
whether different considerations uniquely applicable to
proceedings before the Authority might justify the FLRA's
interpretation of Section 7131(c)."
Thus it is clear that the Supreme Court was not modifying the FLRA's
implementation of Section 7131(c) of the Statute. Similarly
Respondent's reliance on the FLRA's cross unit bargaining cases /2/ is
misplaced. These cases deal with the FLRA's application of Section
7131(a) of the Statute and the reasons for the limitations present in
those cases do not apply to a witness called by the General Counsel of
the FLRA in an unfair labor practice hearing.
Finally Respondent contends Solorio is not entitled to transportation
and per diem expenses because she did not file a voucher requesting that
sum. However, because Solorio was informed in advance by her supervisor
that she would not be paid for transportation and per diem expenses, it
would have been a futile and meaningless act for her to file a voucher
requesting payment of these amounts. I conclude that her failure to
execute such a meaingless and futile act can not prejudice Solorio from
receiving these amounts due.
In light of the foregoing, I conclude that Respondent did violate the
requirements of Section 7131(c) of the Statute by failing and refusing
to grant Solorio official time to testify, pursuant to the subpena, at
the unfair labor practice hearing in Case No. 9-CA-30471 and by failing
and refusing to pay her the necessary transportation and per diem
expenses. Accordingly, I conclude that Respondent violated Sections
7116(a)(1) and (8) of the Statute.
Having found that Respondent violated Section 7116(a)(1) and (8) of
the Statute, I recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute the
Authority hereby Orders, that the Air Force Logistics Command, McClellan
Air Force Base, California, shall:
1. Cease and desist from:
(a) Refusing to grant official time or pay travel and per diem
expenses incurred by our employees who appear pursuant to subpena
before the Federal Labor Relations Authority to testify on behalf
of the General Counsel of the Federal Labor Relations Authority.
(b) In any like or related manner interfering with, restraining
or coercing our employees in the exercise of rights assured them
by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Grant Dora Solorio official time and pay her travel
expenses and per diem as appropriate, for January 16, 1984 when
she appeared pursuant to subpena at a hearing of the Federal Labor
Relations Authority.
(b) Post at their facilities in the Air Force Logistics
Command, McClellan Air Force Base, California, 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 a responsible official, and shall be posted and
maintained by him 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 IX, 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.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: April 15, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) AFLC and AFGE have negotiated a collective bargaining agreement
covering employees in the consolidated unit. Consistent therewith, AFGE
Local 1857 and Respondent have negotiated a local supplement thereto.
Such agreements does not include, provisions concerning official time,
travel or per diem for the performance of representational duties.
(2) 2750th ABW Headquarters, Wright-Patterson AFB, Ohio, 7 FLRA 738
(1982); 94th U.S. Army Reserve Command, Hanscom AFB, Massachusetts, 8
FLRA 83 (1982); U.S. Naval Space Surveillance Systems, Dahlgren, VA, 9
FLRA 193 (1982); Ogden Logistics Center, Hill AFB, Utah, 10 FLRA 245;
and Marine Corp. Development and Education Center, 9 FLRA 251 (1982).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to grant official time or pay travel and per diem
expenses incurred by our employees who appear pursuant to subpena before
the Federal Labor Relations Authority to testify on behalf of the
General Counsel of the Federal Labor Relations Authority.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL grant Dora Solorio official time and pay her travel and per
diem as appropriate, for January 16, 1984 when she appeared pursuant to
subpena at a hearing of the Federal Labor Relations Authority.
AIR FORCE LOGISTICS COMMAND
McCLELLAN AIR FORCE BASE,
CALIFORNIA
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IX,
whose address is: 530 Bush Street, Suite 542, San Francisco, California
94108 and whose telephone number is: (415) 556-8106.