26:0674(83)CA - Air Force, Sacramento Air Logistics Center, McClellan AFB, CA and Delmar Callaway -- 1987 FLRAdec CA

 26 FLRA No. 83
 
 DEPARTMENT OF THE AIR FORCE
 SACRAMENTO AIR LOGISTICS CENTER
 MCCLELLAN AIR FORCE BASE, CALIFORNIA
 Respondent
 
 and
 
 DELMAR CALLAWAY, AN INDIVIDUAL
 Charging Party
 
                                            Case No. 9-CA-60242
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    Ths unfair labor practice case is before the Authority in accordance
 with section 2429.1(a) of the Authority's Rules and Regulations, based
 upon a stipulation enetered into by the Respondent, the Charging Party
 and the General Counsel.  The complaint issued by the General Counsel
 alleges that the Respondent violated section 7116(a)(1) and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 failing and refusing to comply with section 7131(c) of the Statute.
 More specifically, the General Counsel contends that the Respondent
 committed the alleged violation by failing and refusing to grant
 employee DelMar Callaway, the Charging Party, official time and travel
 and per diem expenses to appear as a witness in an unfair labor practice
 hearing before an Administrative Law Judge of the Authority pursuant to
 a subpoena issued by the Regional Director of Region VIII of the
 Authority. We find that the Respondent violated the Statute as alleged.
 
    II.  Background
 
    The American Federation of Government Employees (AFGE) is the
 exclusive representative of a consolidated bargaining unit of employees
 of the Air Force Logistics Command (AFLC).  AFGE Local 1857 represents
 the bargaining unit employees at the Sacramento Air Logistics Center,
 McClellan Air Force Base, California.  Mr DelMar Callaway, the Charging
 Party, is a bargaining unit employee who has been employed at the
 Sacramento Center since about October 1985.
 
    Prior to October 1985, Mr. Callaway was the President of AFGE
 Interdepartmental Local 3854, which represents a different unit of
 employees at March Air Force Base, California, including employees of
 the 22nd Combat Support Group (SAC).  In September 1985, Mr. Callaway,
 as President of Local 3854, filed an unfair labor practice charge
 against the SAC Group.  On January 30, 1986, after Mr. Callaway had been
 reassigned to McClellan AFB, the Regional Director of Region VIII of the
 Authority issued a complaint in that case, 22nd Combat Support Group
 (SAC), March Air Force Base, California and American Federation of
 Government Employees, Interdepartmental Local 3854, AFL-CIO, Case No.
 8-CA-50564.  On March 17, 1986, the Regional Director issued a subpoena
 pursuant to section 2429.7 of the Authority's Rules and Regulations,
 directing Mr. Callaway to appear before an Administrative Law Judge of
 the Authority at a hearing in the case in Los Angeles, California, on
 April 15, 1986.  Counsel for the General Counsel requested that Mr.
 Callaway meet with him on April 14 to prepare for the hearing.  Counsel
 for the General Counsel also discussed the reasons for Mr. Callaway's
 participation in the hearing with Counsel for the Air Force.
 
    On March 20, Mr. Callaway informed his supervisor of the the subpoena
 and, by memorandum of the same date, requested travel orders authorizing
 payment of travel expenses to Los Angeles on April 14 and from Los
 Angeles to Sacramento on April 16, payment of per diem expenses, as well
 as official time for the period.  By memorandum of April 1, the
 Respondent denied Mr. Callaway's request but informed him that he would
 be granted administrative leave for the day of the hearing, April 15,
 1986.
 
    After his request was denied, Mr. Callaway requested leave from April
 13 through April 17, 1986.  Except for April 15, for which
 administrative leave was granted, Mr. Callaway requested that he be
 granted leave without pay for this period.  The Respondent approved Mr.
 Callaway's leave request.
 
    By letter of April 9, Counsel for the General Counsel reminded
 Counsel for the Air Force of Mr. Callaway's scheduled participation as a
 witness in the hearing, and asked Counsel for the Air Force to notify
 the necessary supervisors and management officials that witnesses are
 entitled to official time for preparation for the hearing and the
 hearing itself, and that arrangements for payment of travel and per diem
 expenses should be made for Mr. Callaway.  A copy of this letter was
 sent to the Respondent.
 
    On Friday, April 10, Mr. Callaway traveled to Los Angeles. On Monday,
 April 14, Mr. Callaway and Counsel for the General Counsel discussed Mr.
 Callaway's testimony.  On April 15, Mr. Callaway appeared at the
 hearing.  He apparently returned to Sacramento on April 16.  After
 returning from Los Angeles, Mr. Callaway submitted a voucher to the
 Respondent for travel and per diem expenses incurred in the trip to Los
 Angeles.  The Respondent refused to reimburse Mr. Callaway for the
 expenses.  Mr. Callaway was charged 16 hours of leave without pay for
 his absence from work on April 14 and 16, 1986.
 
    III.  Positions of the Parties
 
    The Respondent contends that since the unfair labor practice hearing
 in Case No. 8-CA-50564 involved a different Air Force command and a
 different bargaining unit, the Respondent had no obligation to pay Mr.
 Callaway's travel and per diem expenses or to grant him official time.
 Further, the Respondent contends that, while the Authority has
 promulgated a regulation pertaining to official time and travel and per
 diem expenses for participating in proceedings before the Authority,
 there is no statutory jurisdiction or authority to support such a
 regulation.  The Respondent also argues that the amount of official time
 requested, which included time for travel and time for preparation with
 Counsel for the General Counsel, was excessive and unwarranted.
 
    The General Counsel contends that the Respondent's refusal to grant
 Mr. Callaway official time and to pay his travel and per diem expenses
 constituted a failure to comply with section 7131(c) of the Statute and
 section 2429.13 of the Authority's Rules and Regulations and a violation
 of section 7116(a)(1) and (8) of the Statute.  In support of this
 contention, the General Counsel argues that this case is virtually
 identical to Air Force Logistics Command, McClellan Air Force Base,
 California 24 FLRA No. 33 (1986), petition for review filed sub nom. Air
 Force Logistics Command, McClellan Air Force Base, California v. FLRA,
 No. 87-1039 (D.C. Cir. Jan. 23, 1987), which involved the same
 Respondent and essentially the same factual situation as the present
 case, and in which the Authority found that the Respondent committed an
 unfair labor practice.
 
    IV.  Analysis and Conclusions
 
    We agree with the General Counsel that this case is virtually
 identical to Air Force Logistics Command, McClellan Air Force Base, 24
 FLRA No. 33.  In our decision in that case, we found that the Respondent
 violated section 7131(c) of the Statute and section 2429.13 of the
 Authority's Rules and Regulations by refusing to grant an employee
 official time and travel and per diem expenses for her appearance at an
 unfair labor practice hearing pursuant to a subpoena issued by a
 designated agent of the Authority.  We concluded that the Respondent's
 refusal constituted a violation of section 7116(a)(1) and (8) of the
 Statute.  In reaching that decision, based in part on our reasoning in
 Department of the Air Force, Headquarters, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, 24 FLRA No. 26 (1986), petition
 for review filed sub nom.  Department of the Air Force v. FLRA, No.
 87-1038 (D.C. Cir. Jan. 23, 1987), we rejected arguments that section
 2429.13 of the Authority's Rules and Regulations is not in accordance
 with law and that an agency is not obligated to grant official time to
 one of its employees to testify at an unfair labor practice proceeding
 in a matter in which the agency is not a party and has no interest.
 
    Based on our decisions in McClellan Air Force Base and
 Wright-Patterson Air Force Base, we also reject the Respondent's similar
 arguments in this case.  We likewise reject the Respondent's argument
 that Mr. Callaway was not entitled to official time for the time spent
 in preparation with the General Counsel for the hearing and for the time
 spent in travel.  Section 2429.13 of the Authority's Rules and
 Regulations, which implements section 7131(c) of the Statute, provides:
 "If the participation of any employee in any phase of any proceeding
 before the Authority . . . is deemed necessary by the Authority, the
 General Counsel . . . or other agent of the Authority designated by the
 Authority, such employee shall be granted official time for such
 participation, including necessary travel time . . . ." Counsel for the
 General Counsel, a designated agent of the Authority, determined that
 Mr. Callaway's participation in Case No. 8-CA-50564, including
 preparation time on April 14, was necessary.  The Respondent fails to
 establish that official time for April 14 to enable Mr. Callaway to
 cooperate with Counsel for the General Counsel in preparation for the
 hearing and for necessary travel time to return to Sacramento on April
 16 is not covered by section 2429.13.  We therefore conclude that the
 Respondet's refusal to grant Mr. Callaway official time and travel and
 per diem expenses constituted a violation of section 7116(a)(1) and (8)
 of the Statute.  In that regard, we note that the record is silent on
 existing procedures, if any, within the Department of the Air Force by
 which the Respondent in this case may be reimbursed for the expenses
 involved by March Air Force Base, the Respondent in Case No. 8-CA-50564.
  We leave this matter to the resolution of the two Respondents and the
 Department of the Air Force.
 
                                   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 Department of the Air
 Force, Sacramento Air Logistics Center, McClellan Air Force Base,
 California shall:
 
    1.  Cease and desist from:
 
    (a) Denying official time to its employees for attendance and
 participation in unfair labor practice proceedings before the Federal
 Labor Relations Authority when and to the extent that such attendance
 and 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) Grant DelMar Callaway official time for April 14, 15 and 16,
 1986, and, upon submission of a properly documented voucher, reimburse
 him for appropriate travel and per diem expenses, which were incurred in
 connection with his appearance pursuant to a subpoena at a hearing of
 the Federal Labor Relations Authority, and make him whole for the time
 he was charged leave without pay for that purpose.
 
    (b) Post at its facilities at the Department of the Air Force,
 Sacramento Air Logistics Center, 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 the Commanding Officer of the Sacramento Air Logistics Center,
 McClellan Air Force Base, California, 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 ensure 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 Suite 220, San
 Francisco, California 94103 in writing within 30 days from the date of
 this Order, as to what steps have been taken to comply with this order.
 
    Issued, Washington, D.C., April 28, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
  NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 THE FEDERAL
 LABOR RELATIONS AUTHORITY AND 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 deny official time to our employees for 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 exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL grant DelMar Callaway official time for April 14, 15 and 16,
 1986, and, upon submission of a properly documented voucher, reimburse
 him for appropriate travel and per diem expenses, which were incurred in
 connection with his required appearance pursuant to a subpoena at a
 hearing of the Federal Labor Relations Authority, and make him whole for
 the time he 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, California
 94103-9991, and whose telephone number is:  (415) 995-5000.