24:0274(33)CA - Air Force Logistics Command, McClellan AFB, CA and Dora M. Solorio -- 1986 FLRAdec CA



[ 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