10:0010(3)CA - Treasury, Bureau of Alcohol, Tobacco and Firearms and NTEU and NTEU Chapter 88 -- 1982 FLRAdec CA

 10 FLRA No. 3
 
 DEPARTMENT OF THE TREASURY
 BUREAU OF ALCOHOL, TOBACCO
 AND FIREARMS
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION, CHAPTER 88
 Charging Party
 
                                            Case No. 5-CA-1290
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, THE AUTHORITY FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1)
 AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) WHEN IT REFUSED TO PROVIDE OFFICIAL TIME TO EMPLOYEES MARTIN
 CONNELL, DONALD COLEMAN, CHARLES WILSON AND THOMAS WOODS TO PARTICIPATE
 IN THE PRE-HEARING PREPARATION PHASE OF TWO UNFAIR LABOR PRACTICE
 PROCEEDINGS BEFORE THE AUTHORITY (CASE NOS. 5-CA-591 AND 5-CA-968).
 
    MESSRS. COLEMAN, CONNELL, WILSON AND WOODS ARE EMPLOYEES AT THE
 RESPONDENT'S LOUISVILLE, KENTUCKY AREA OFFICE.  COLEMAN AND CONNELL HAD
 BEEN REQUESTED BY AN AUTHORITY FIELD ATTORNEY TO MEET WITH HER ON MAY 8,
 1981 FOR THE PURPOSE OF PRE-HEARING PREPARATION INVOLVING CASE NO.
 5-CA-591.  THE EMPLOYEES REQUESTED OFFICIAL TIME TO ATTEND THE MEETING.
 COLEMAN ALSO REQUESTED TRAVEL EXPENSES.  ALTHOUGH THE REQUESTS WERE
 DENIED BY THEIR SUPERVISORS, THEY WERE GRANTED ANNUAL LEAVE FOR THIS
 PERIOD.  COLEMAN, CONNELL, WILSON AND WOODS MADE A SIMILAR REQUEST FOR
 OFFICIAL TIME TO MEET WITH AN AUTHORITY FIELD ATTORNEY ON AUGUST 6, 1981
 FOR PRE-HEARING PREPARATION IN CONJUNCTION WITH CASE NO. 5-CA-968.
 THESE REQUESTS WERE ALSO DENIED, AND ANNUAL LEAVE WAS GRANTED THE
 EMPLOYEES FOR THIS PERIOD.
 
    THE GENERAL COUNSEL ARGUES THAT, PURSUANT TO SECTION 7131(C) OF THE
 STATUTE /1/ AND SECTION 2429.13 OF THE AUTHORITY'S RULES AND REGULATIONS
 /2/ WHICH IMPLEMENTS THAT PROVISION OF THE STATUTE, THE FOUR EMPLOYEES
 WERE ENTITLED TO OFFICIAL TIME TO ENGAGE IN PRE-HEARING PREPARATION
 INASMUCH AS THE FIELD ATTORNEYS WHO HAD REQUESTED THEIR PARTICIPATION
 WERE ACTING IN THE CAPACITY OF DESIGNEES OF THE GENERAL COUNSEL IN
 DETERMINING THAT EACH PARTICIPATION WAS NECESSARY.  THE RESPONDENT
 ARGUES THAT NOTHING IN SECTION 7131 OF THE STATUTE OR IN ITS LEGISLATIVE
 HISTORY REQUIRES THAT OFFICIAL TIME BE GRANTED EMPLOYEES FOR ACTIVITIES
 SUCH AS THOSE INVOLVED HEREIN.  RESPONDENT FURTHER CONTENDS THAT EVEN IF
 THE STATUTE DOES REQUIRE THE GRANTING OF OFFICIAL TIME FOR SUCH PURPOSE
 THE RECORD CONTAINS NO EVIDENCE TO ESTABLISH THAT PARTICIPATION BY THE
 EMPLOYEES WAS NECESSARY.  /3/
 
    SECTION 7131(C) OF THE STATUTE (SUPRA NOTE 1) EMPOWERS THE AUTHORITY
 TO MAKE DETERMINATIONS AS TO WHETHER EMPLOYEES PARTICIPATING IN
 PROCEEDINGS BEFORE IT SHALL BE AUTHORIZED OFFICIAL TIME.  /4/ THIS
 LANGUAGE IN THE STATUTE HAS BEEN IMPLEMENTED BY THE AUTHORITY IN SECTION
 2429.13 OF ITS RULES AND REGULATIONS (SUPRA NOTE 2).  SEE INTERPRETATION
 AND GUIDANCE, 2 FLRA 264, 270(1979).  AS NOTED BY THE AUTHORITY IN
 NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA, 5 FLRA NO. 105(1981) THAT
 SECTION OF ITS RULES AND REGULATIONS, WHICH PROVIDES IN PART FOR THE
 PARTICIPATION ON OFFICIAL TIME INCLUDING TRANSPORTATION AND PER DIEM, BY
 ANY EMPLOYEE IN ANY PHASE OF ANY PROCEEDING BEFORE THE AUTHORITY,
 ENCOMPASSES PREPARATION FOR A FORMAL HEARING IN AN UNFAIR LABOR PRACTICE
 PROCEEDING AND PROVIDES THAT EMPLOYEES SHALL BE GRANTED OFFICIAL TIME
 FOR SUCH PARTICIPATION IF DEEMED NECESSARY "BY THE AUTHORITY, GENERAL
 COUNSEL, . . . OR OTHER AGENT OF THE AUTHORITY DESIGNATED BY THE
 AUTHORITY . . . ." IN THE AUTHORITY'S VIEW, THE FIELD ATTORNEYS COME
 WITHIN THE DEFINITION OF "OTHER AGENT(S) OF THE AUTHORITY DESIGNATED BY
 THE AUTHORITY" AND THUS ARE AUTHORIZED TO DEEM IT NECESSARY THAT AN
 EMPLOYEE PARTICIPATE IN PREPARATION FOR FORMAL HEARINGS IN UNFAIR LABOR
 PRACTICE PROCEEDINGS, /5/ AND SUCH DETERMINATIONS WERE MADE IN THIS
 CASE.  THUS, INASMUCH AS THE PARTICIPATION OF COLEMAN, CONNELL, WILSON
 AND WOODS IN THE PRE-HEARING PREPARATIONS WAS PURSUANT TO SECTION
 7131(C) OF THE STATUTE, THE RESPONDENT'S DENIAL OF OFFICIAL TIME TO THEM
 FOR THEIR MEETINGS WITH THE AUTHORITY FIELD ATTORNEYS ON MAY 8, 1981,
 AND AUGUST 6, 1981, RESPECTIVELY, VIOLATED SECTION 7131(C) AND THEREFORE
 CONSTITUTED VIOLATIONS OF SECTION 7116(A)(1) AND (8) OF THE STATUTE.
 /6/
 
                                   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 DEPARTMENT OF THE TREASURY, BUREAU OF
 ALCOHOL, TOBACCO AND FIREARMS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    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 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) PROVIDE EMPLOYEES DONALD COLEMAN, MARTIN CONNELL, CHARLES WILSON
 AND THOMAS WOODS
 
    OFFICIAL TIME FOR THEIR MEETINGS WITH FIELD ATTORNEYS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY
 
    ON MAY 8, 1981, AND AUGUST 6, 1981, RESPECTIVELY, AND MAKE THEM WHOLE
 FOR ANY ANNUAL LEAVE
 
    UTILIZED FOR THAT PURPOSE;  AND, IF APPROPRIATE, UPON SUBMISSION OF
 PROPERLY DOCUMENTED
 
    VOUCHERS, REIMBURSE THEM FOR TRANSPORTATION AND PER DIEM EXPENSES
 INCURRED.
 
    (B) POST AT ITS FACILITIES IN ITS LOUISVILLE, KENTUCKY, AREA 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 V, 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., SEPTEMBER 2, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, 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 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 PROVIDE EMPLOYEES DONALD COLEMAN, MARTIN CONNELL,
 CHARLES
 WILSON AND THOMAS WOODS OFFICIAL TIME FOR THEIR MEETINGS WITH
 FIELD
 ATTORNEYS OF THE FEDERAL LABOR RELATIONS AUTHORITY ON MAY 8,
 1981, AND
 AUGUST 6, 1981, RESPECTIVELY, AND MAKE THEM WHOLE FOR ANY
 ANNUAL LEAVE
 UTILIZED FOR THAT PURPOSE;  AND, IF APPROPRIATE, UPON SUBMISSION
 OF
 PROPERLY DOCUMENTED VOUCHERS, REIMBURSE THEM FOR
 TRANSPORTATION AND PER
 DIEM EXPENSES INCURRED.
 
                                 (AGENCY)
 
    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 THE
 NOTICE OR
 COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE
 REGIONAL DIRECTOR, REGION V, FEDERAL LABOR RELATIONS AUTHORITY,
 SUITE
 1359-A, 175 W.  JACKSON BLVD., CHICAGO, ILLINOIS 60604, AND WHOSE
 TELEPHONE NUMBER IS:  (312) 353-0139.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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 STATUS.
 
    /2/ SECTION 2429.13 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 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.
 
    /3/ THE CHARGING PARTY'S BRIEF WAS UNTIMELY FILED AND HAS NOT
 BEEN
 CONSIDERED HEREIN.
 
    /4/ SEE H.R. REP. NO. 1403, 95TH CONG., 2D SESS. 58-59(1978).
 
    /5/ IN NORFOLK NAVAL SHIPYARD, 5 FLRA NO. 105(1981), WHICH INVOLVED
 EMPLOYEE PARTICIPATION IN AN UNFAIR LABOR PRACTICE PROCEEDING
 AFTER THE
 HEARING HAD BEEN CONVENED, THE AUTHORITY FOUND THAT THE
 POWER TO
 DETERMINE THE NEED FOR EMPLOYEE PARTICIPATION RESTED
 EXCLUSIVELY WITH
 THE ADMINISTRATIVE LAW JUDGE.
 
    /6/ THE RESPONDENT ARGUES THAT CERTAIN STATEMENTS MADE BY
 CONGRESSMAN
 CLAY OF MISSOURI (124 CONG.REC. 29188(1978)) AND CONGRESSMAN
 FORD OF
 MICHIGAN (124 CONG.REC.  29200(1978)) ON THE HOUSE FLOOR SUPPORT
 ITS
 POSITION IN THE INSTANT CASE.  HOWEVER, WHILE THOSE STATEMENTS
 ADDRESS
 SECTION 7131, THEY DO NOT RELATE TO THE SUBSECTION (C) WHICH IS
 WHAT IS
 GERMANE TO THE QUESTION PRESENTED BY THE COMPLAINT IN THIS
 CASE.