[ v08 p296 ]
08:0296(70)CA
The decision of the Authority follows:
8 FLRA No. 70
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, NORTH ATLANTIC
REGION, (NEW YORK, NEW YORK)
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 102
Charging Party
Case No. 1-CA-375
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET
FORTH IN THE ATTACHED JUDGE'S DECISION AND ORDER. THEREAFTER, THE
RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER AND A
SUPPORTING BRIEF.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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 ORDER AND THE ENTIRE RECORD IN THIS CASE, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /1/
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 BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NORTH ATLANTIC REGION, DEPARTMENT OF THE TREASURY, NEW YORK,
NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO AN APPROPRIATE NUMBER OF
AGENCY EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 102, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
DURING UNION -- AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING
AGREEMENT, 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.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE TO TWO UNION REPRESENTATIVES, AS DESIGNATED BY NTEU
CHAPTER 102, OFFICIAL TIME FOR THE PERFORMANCE OF THEIR REPRESENTATIONAL
DUTIES ON APRIL 7, 1980, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE
UTILIZED ON THAT DATE FOR SUCH PERFORMANCE OF REPRESENTATIONAL DUTIES.
(B) POST AT ITS FACILITIES IN THE NORTH ATLANTIC REGION 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
REGIONAL REGULATORY ADMINISTRATOR 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. THE REGIONAL REGULATORY ADMINISTRATOR SHALL TAKE
REASONABLE STEPS TO INSURE THAT SAID 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 I, 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., MARCH 26, 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 FAIL OR REFUSE TO PROVIDE TO AN APPROPRIATE NUMBER OF
AGENCY EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 102, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT,
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.
WE WILL NOT IN ANY LIKE OR RELATED REPRESENTATIVES, AS DESIGNATED BY
NTEU CHAPTER 102, OFFICIAL TIME FOR THE PERFORMANCE OF THEIR
REPRESENTATIONAL DUTIES ON APRIL 7, 1980, AND MAKE THEM WHOLE FOR THE
ANNUAL LEAVE UTILIZED ON THAT DATE FOR SUCH PERFORMANCE OF
REPRESENTATIONAL DUTIES.
(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, REGION I, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS, 02116
AND WHOSE TELEPHONE NUMBER IS (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MICHAEL SITCOV, ESQ.
FOR THE RESPONDENT
PETER N. CONROY
FOR THE CHARGING PARTY
JAMES R. COLLINS, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SEC.
7101 ET SEQ (HEREINAFTER CALLED THE STATUTE) AND THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 5 C.F.R. CHAPTER
XIV, SEC. 2410 ET SEQ.
PURSUANT TO A CHARGE FILED ON MAY 19, 1980, AND A FIRST AMENDED
CHARGE FILED ON JULY 25, 1980 BY THE NATIONAL TREASURY EMPLOYEES UNION
(NTEU) AND NTEU CHAPTER 102 (HEREINAFTER ALSO REFERRED TO AS THE UNION)
AGAINST DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NORTH ATLANTIC REGION (HEREINAFTER CALLED RESPONDENT AND/OR
AGENCY) THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY
(HEREINAFTER CALLED THE GENERAL COUNSEL) BY THE REGIONAL DIRECTOR FOR
REGION 1, ISSUED A COMPLAINT AND NOTICE OF HEARING ON JULY 31, 1980
ALLEGING THAT RESPONDENT HAD ENGAGED IN AND WAS ENGAGING IN UNFAIR LABOR
PRACTICES IN VIOLATION OF SECTIONS 7116(A)(1) AND (8) OF THE STATUTE.
THE COMPLAINT ALLEGES THAT RESPONDENT REFUSES TO AUTHORIZE OFFICIAL TIME
TO ANY NTEU CHAPTER 102 NEGOTIATOR FOR TIME SPENT AT A NEGOTIATION
SESSION HELD ON APRIL 7, 1980. RESPONDENT ADMITS JURISDICTION BUT
DENIES THAT IT VIOLATED THE STATUTE.
A HEARING IN THIS MATTER WAS CONDUCTED IN BOSTON, MASSACHUSETTS AT
WHICH TIME ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO
BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES HEREIN AND TO ARGUE ORALLY. BRIEFS WERE FILED BY
RESPONDENT AND GENERAL COUNSEL ON NOVEMBER 17, 1980 AND HAVE BEEN FULLY
CONSIDERED.
UPON THE ENTIRE RECORD IN THE MATTER, MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE I MAKE THE
FOLLOWING:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN NTEU HAS BEEN THE EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE FOR A UNIT OF RESPONDENT'S GENERAL SCHEDULE
AND WAGE GRADE EMPLOYEES, WITH CERTAIN EXCLUSIONS.
AT SOME TIME PRIOR TO JANUARY 1980, RESPONDENT DECIDED TO REORGANIZE
AND REALIGN THE REGULATORY ENFORCEMENT FUNCTION IN THE NORTH ATLANTIC
REGION. BY LETTER DATED JANUARY 10, 1980 NTEU CHAPTER 102 REQUESTED
CERTAIN INFORMATION INCLUDING "WORK LOAD STUDIES, AREA ANALYSIS, . . .
RELATED TO THIS POTENTIAL CHANGE IN WORKING CONDITIONS." BY MEMORANDUM
DATED JANUARY 25, 1980 RESPONDENT'S REGIONAL ADMINISTRATIVE OFFICER SENT
NTEU CHAPTER 102, INTER ALIA, COPIES OF THE PROPOSED REALIGNMENT AND A
WORK LOAD STUDY AND ADVISED THAT NO INVOLUNTARY REASSIGNMENTS WOULD BE
MADE IN ACCORDANCE WITH THE REALIGNMENT. BY MEMORANDUM DATED FEBRUARY
26, 1980 THE PRESIDENT OF NTEU CHAPTER 102 REQUESTED NEGOTIATIONS IN
ACCORDANCE WITH 5 U.S.C. SEC. 7114(B)(2), ON THE IMPACT AND
IMPLEMENTATION OF THE PROPOSED REALIGNMENT OF THE NEW ENGLAND AREA. BY
MEMORANDUM DATED MARCH 3, 1980 RESPONDENT'S REGIONAL ADMINISTRATIVE
OFFICER, AMONG OTHER THINGS, RESPONDED TO THE FEBRUARY 26, 1980
MEMORANDUM AND REQUESTED THAT NTEU CHAPTER 102 SUBMIT WRITTEN PROPOSALS
FOR THE REQUESTED NEGOTIATIONS ON THE IMPACT AND IMPLEMENTATION OF THE
REALIGNMENT. BY A MARCH 12, 1980 MEMORANDUM NTEU CHAPTER 102 MADE SOME
SPECIFIC PROPOSALS.
ON MARCH 31, 1980 NTEU CHAPTER 102 PRESIDENT JOHN CARON
TELEPHONICALLY SPOKE TO RESPONDENT'S REGIONAL ADMINISTRATIVE OFFICER
JAMES WARD AND WAS ADVISED THAT OFFICIAL TIME WOULD NOT BE APPROVED FOR
ANY UNION REPRESENTATIVES ATTENDING THE APRIL 7, 1980 MEETING TO DISCUSS
THE PROPOSED REALIGNMENT.
A MEMORANDUM DATED APRIL 7 FROM NTEU CHAPTER 102 TO RESPONDENT
RECOUNTED THE PRECEEDING CONVERSATION AND STATED THAT THE UNION FELT
THAT PURSUANT 5 U.S.C. SEC. 7131(A) EMPLOYEES REPRESENTING NTEU CHAPTER
102 SHOULD BE PROVIDED WITH OFFICIAL TIME TO ATTEND THE MEETING. THIS
MEMORANDUM WAS GIVEN TO RESPONDENT ON APRIL 7, AT THE OUTSET OF THE
MEETING IN QUESTION.
ON APRIL 7, 1980 REPRESENTATIVES OF THE RESPONDENT AND NTEU CHAPTER
102 MET TO DISCUSS THE UNION PROPOSALS AND THE IMPACT AND IMPLEMENTATION
OF THE REALIGNMENT. THE MEETING LASTED APPROXIMATELY TWO HOURS. /2/
PRESENT REPRESENTING NTEU CHAPTER 102 WAS CHAPTER PRESIDENT CORN,
CHAPTER VICE PRESIDENT JAMES VAUGHN AND CHAPTER SHOP STEWARDS MATHEW LUZ
AND DAVID ROSEN /3/ ; REPRESENTING RESPONDENT REGIONAL ADMINISTRATIVE
OFFICER AND CHIEF OF FIELD OPERATIONS LOY A. HAYNES. THE
REPRESENTATIVES FIRST BRIEFLY DISCUSSED THE QUESTION OF OFFICIAL TIME
FOR THE UNION REPRESENTATIVES AND THEN THE NTEU CHAPTER 102
REPRESENTATIVES ATTEMPTED TO DISCUSS THE WORK LOAD STUDY AND THE
PROPOSED REALIGNMENT. RESPONDENT'S REPRESENTATIVES STATED THESE LATTER
TOPICS WERE NON-NEGOTIABLE AND THE UNION REPRESENTATIVES STATED THAT THE
UNION INTENDED TO APPEAL THE NEGOTIABILITY ISSUE. THE UNION ASKED THAT
IF RESPONDENT WOULD NOT DISCUSS THESE MATTERS WHAT IT WOULD DISCUSS.
RESPONDENT'S REPRESENTATIVES ADVISED THE UNION REPRESENTATIVES THAT THAT
WAS THE JOB OF THE UNION REPRESENTATIVE AND IF THEY HAD SPECIFICS, IT
WAS THEIR JOB TO COME UP WITH THEM. THE PARTIES WENT "OFF-THE-RECORD"
AND DISCUSSED THE WORKLOAD STUDY AND HOW IT WAS GOING TO BE IMPLEMENTED.
THE PARTIES WENT BACK "ON-THE-RECORD" AND THE UNION EXPRESSED ITS
POSITION THAT THE WORK LOAD STUDY WOULD HAVE AN ADVERSE IMPACT ON THE
UNIT MEMBERS AND MIGHT LEAD TO INVOLUNTARY TRANSFERS. RESPONDENT
REASSURED THE UNION THAT THEY WOULD NOT INVOLUNTARILY TRANSFER ANYONE.
THE UNION THEN RAISED THE ISSUE OF RETAINING THE CURRENT FOUR SHOP
STEWARDS BECAUSE THERE WOULD NOT BE A CHANGE IN THE NUMBER OF EMPLOYEES;
RESPONDENT STATED THAT IT WOULD ONLY ABIDE BY THE PROVISIONS OF THE
CONTRACT. NTEU CHAPTER 102 REPRESENTATIVES STATED THAT THEY WOULD LIKE
THE ESTABLISHMENT OF A CAREER DEVELOPMENT POSITION WITH THE POSSIBILITY
OF POSTING ONE SUCH POSITION IN BOSTON BECAUSE THERE WOULD BE SEVERAL
VACANCIES CREATED THROUGH THE REALIGNMENT. RESPONDENT INDICATED THAT
THERE WERE NO SUCH POSITIONS AT RECRUIT STATUS AND THUS WOULD NOT BE
POSTED. THE PARTIES THEN DISCUSSED AN AREA SUPERVISOR'S POSITION,
GS-12, THAT WAS BEING CONVERTED TO A INSPECTOR POSITION, GS-12, WITHIN
THE COLLECTIVE BARGAINING UNIT. THE UNION URGED THAT THE POSITION BE
POSTED UNDER THE MERIT PROCEDURES WHEREAS RESPONDENT TOOK THE POSITION
THAT IT WAS STRICTLY AS RESULT RESTRUCTURING AND THEREFORE REQUIRED NO
POSTING.
RESPONDENT'S REPRESENTATIVES AGREED THAT MANY OF THESE TOPICS WERE
APPROPRIATE FOR IMPACT AND IMPLEMENTATION NEGOTIATIONS AND TOOK THE
POSITION THAT THE DISCUSSION OF THESE TOPICS INVOLVED GENERAL
DISCUSSIONS AND NOT SPECIFICS. THEY ADVISED THE UNION REPRESENTATIVES
THAT THEY WOULD BE HAPPY TO DISCUSS THESE TOPICS IF THE UNION REQUESTED
SUCH DISCUSSION IN WRITING IN REFERENCE TO SPECIFICS.
THE MEETING THEN ENDED WITH THE UNION REQUESTING THE NEGOTIABILITY
ISSUES BE PUT IN WRITING. AT THAT POINT, THE FOUR NTEU CHAPTER 102
REPRESENTATIVES SUBMITTED ANNUAL SLIPS FOR THE TIME SPENT IN THE
MEETING.
RESPONDENT HAS REFUSED TO AUTHORIZE OFFICIAL TIME FOR THE TIME SPENT
AT THE APRIL 7, 1980 MEETING.
DISCUSSION
THIS MATTER INVOLVES THE INTERPRETATION AND APPLICATION OF SECTION
7131(A) OF THE STATUTE (5 U.S.C. 7131(A)) AND WHETHER ANY OF THE NTEU
CHAPTER 102 REPRESENTATIVES AT THE APRIL 7 MEETING WERE ENTITLED TO BE
ON OFFICIAL TIME WHILE AT THAT MEETING. SECTION 7131(A) OF THE STATUTE
PROVIDES:
"(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
AUTHORIZED OFFICIAL TIME FOR SUCH
PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
THE EMPLOYEE OTHERWISE
WOULD BE IN A DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER
THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED
AS REPRESENTING THE
AGENCY FOR SUCH PURPOSES."
GENERAL COUNSEL CONTENDS THAT RESPONDENT'S REFUSAL TO GRANT TWO OF
UNION REPRESENTATIVES OFFICIAL TIME FOR ATTENDING THE APRIL 7 MEETING
WAS IN VIOLATION OF SECTION 7131(A)(1) AND (8)).
RESPONDENT CONTENDS THAT SECTION 7131(A) DOES NOT REQUIRE RESPONDENT
TO PROVIDE OFFICIAL TIME TO ANY UNION REPRESENTATIVES FOR ANY MID-TERM
IMPACT AND IMPLEMENTATION NEGOTIATIONS. RESPONDENT CONTENDS FURTHER,
THAT EVEN IF SECTION 7131(A) DID REQUIRE GRANTING OFFICIAL TIME TO UNION
REPRESENTATIVES FOR MID-TERM IMPACT AND IMPLEMENTATION NEGOTIATIONS, THE
APRIL 7 MEETING DID NOT ACCOUNT TO A NEGOTIATION SESSION BECAUSE THE
"UNION REPRESENTATIVES FAILED TO PROPOSE OR DISCUSS ANY SPECIFICS WITH
RESPECT TO IMPACT AND IMPLEMENTATION OF THE PROPOSED REALIGNMENT. . ."
IN URGING ITS INTERPRETATION OF SECTION 7131(A) RESPONDENT URGES THAT
THE FEDERAL LABOR RELATIONS AUTHORITY (FLRA) WAS NOT AUTHORIZED TO ISSUE
ITS IMPLEMENTATION AND GUIDANCE, 2 FLRA NO. 31 AND THAT THEREFORE IT
SHOULD NOT BE FOLLOWED. THIS POSITION IS REJECTED. THE STATUTORY
SCHEME IS CLEAR THAT THE ADMINISTRATIVE LAW JUDGE IS BOUND BY THE
DECISIONS OF THE FLRA. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN
REGION, DEPARTMENT OF THE TREASURY, CASE NO. 4 FLRA NO. 40 (HEREINAFTER
CALLED THE ATF CASE). ACCORDINGLY IT IS CONCLUDED THAT THE PROVISION OF
SECTION 7131(A) THAT APPROPRIATE UNION REPRESENTATIVES OFFICIAL TIME FOR
"NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT . . ." APPLIES TO
ATTENDANCE AT MID-TERM IMPACT AND IMPLEMENTATION NEGOTIATIONS.
INTERPRETATION AND GUIDANCE, SUPRA, AND THE ATF CASE, SUPRA.
THE RESPONDENT'S CONTENTION THAT THE APRIL 7 MEETING "DID NOT AMOUNT
TO A NEGOTIATION SESSION . . ." MUST ALSO BE REJECTED. AT THE APRIL 7
MEETING, UNION AND RESPONDENT'S REPRESENTATIVES DISCUSSED THE IMPENDING
REALIGNMENT AND A NUMBER OF REASONABLY FORESEEABLE ADVERSE IMPACTS THAT
THE REALIGNMENT MIGHT HAVE ON THE COLLECTIVE BARGAINING UNIT INCLUDING,
THE NUMBER OF SHOP STEWARDS NEEDED, POSSIBLE INVOLUNTARY TRANSFERS, HOW
TO TREAT THE FILLING OF JOBS THAT MIGHT BE ADDED TO THE UNIT, ETC. THE
PARTIES EXPLORED AND DISCUSSED EACH OTHERS' POSITIONS. SUCH A MEETING
EMBODIES THE VERY ESSENCE OF NEGOTIATIONS AS ENVISIONED BY THE STATUTE.
RESPONDENT'S CONTENTION THAT IN NEGOTIATIONS THE UNION MUST MAKE
SPECIFIC PROPOSAL, AND DISCUSSIONS MUST SOME HOW ALWAYS LEAD TO A
WRITTEN CONTRACT IS REJECTED AS TOO LIMITED AN INTERPRETATION THAT WOULD
FRUSTRATE MEANINGFUL NEGOTIATIONS IN FAVOR OR SOME SORT OF STYLIZED FORM
OF COMMUNICATION. /3/ SIMILARLY RESPONDENT'S CONTENTION THAT THE APRIL
7 MEETING DID NOT CONSTITUTE NEGOTIATIONS BECAUSE SOME OF THE UNION'S
PROPOSALS MIGHT HAVE BEEN NON-NEGOTIABLE IS REJECTED AS TO NARROW AN
INTERPRETATION. RATHER THE APRIL 7 MEETING MUST BE LOOKED AT IN ITS
ENTIRETY; IN DOING SO IT IS CONCLUDED THAT IT WAS A NEGOTIATION SESSION
SUBJECT TO THE TERMS AND REQUIREMENTS OF SECTION 7131(A). CF ATF CASE,
SUPRA.
THE UNION WAS THEREFORE ENTITLED, UNDER SECTION 7131(A) OF THE
STATUTE, TO TWO REPRESENTATIVES OF ITS DESIGNATION, THE NUMBER
REPRESENTING RESPONDENT, ON OFFICIAL TIME TO ATTEND THE SUBJECT MEETING.
RESPONDENT'S FAILURE TO GRANT SUCH OFFICIAL TIME CONSTITUTES A
VIOLATION OF SECTIONS 7116(A)(1) AND (8) OF THE STATUTE.
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTIONS
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 BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NORTH ATLANTIC REGION, DEPARTMENT OF THE TREASURY, NEW YORK,
NEW YORK, SHALL:
1. CASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO AN APPROPRIATE NUMBER OF
AGENCY EMPLOYEES, WHILE
ENGAGED IN REPRESENTING THE NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 102, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, DURING UNION - AGENCY
NEGOTIATIONS OF A COLLECTIVE
BARGAINING AGREEMENT, 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.
(B) IN ANY LIKE OR RELATED MATTER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE TWO UNION REPRESENTATIVES, AS DESIGNATED BY NTEU CHAPTER
102, OFFICIAL TIME FOR
THE PERFORMANCE OF THEIR REPRESENTATIONAL DUTIES ON APRIL 7, 1980,
AND MAKE THEM WHOLE FOR THE
ANNUAL LEAVE UTILIZED ON THAT DATE.
(B) POST AT ITS VARIOUS OFFICES IN THE NORTH ATLANTIC REGION WHEREIN
UNIT EMPLOYES ARE
LOCATED, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX." COPIES OF
SAID NOTICE, TO BE
FURNISHED BY THE REGIONAL DIRECTOR FOR REGION 1, AFTER BEING SIGNED
BY AN AUTHORIZED
REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT
THEREOF AND BE MAINTAINED BY IT
FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN
TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE 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: MARCH 2, 1981
WASHINGTON, D.C.
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 FAIL OR REFUSE TO PROVIDE TO AN APPROPRIATE NUMBER OF
AGENCY EMPLOYEES, WHILE ENGAGED IN REPRESENTING THE NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 102, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
DURING UNION - AGENCY NEGOTIATIONS OF A COLLECTIVE BARGAINING AGREEMENT,
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.
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
STATUTE.
WE WILL PROVIDE TWO UNION REPRESENTATIVES, AS DESIGNATED BY NTEU
CHAPTER 102, OFFICIAL TIME FOR THE PERFORMANCE OF REPRESENTATIONAL
DUTIES ON APRIL 7, 1980, AND MAKE THEM WHOLE FOR THE ANNUAL LEAVE
UTILIZED ON THAT DATE.
(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, REGION 1, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS 02116.
--------------- FOOTNOTES: ---------------
/1/ AS TO THE RESPONDENT'S EXCEPTIONS TO THAT PORTION OF THE JUDGE'S
ORDER DIRECTING THAT IT PAY "NECESSARY TRANSPORTATION AND PER DIEM
EXPENSES," CONTENDING THAT THERE WERE NO SUCH EXPENSES, THIS CONTENTION
MAY BE ADDRESSED IN CONNECTION WITH ANY QUESTION OF COMPLIANCE WHICH IS
SUBSEQUENTLY RAISED BY THE UNION.
/2/ FROM APPROXIMATELY 10:00 AM TO 12:00 NOON.
/2/ THE REGULAR DUTY HOURS FOR ALL FOUR NTEU CHAPTER 102
REPRESENTATIVES IS 8:00 AM TO 4:30 PM.
/3/ IN THIS REGARD RESPONDENT'S RELIANCE ON ASSOCIATION OF CIVILIAN
TECHNICIANS, ALABAMA ACT, CASE NO. 2 FLRA NO. 39 IS MISPLACED. THE CASE
IS INAPPOSITE BECAUSE IT DEALS WITH THE TYPE OF SPECIFICITY NECESSARY TO
MAKE A DETERMINATION WHETHER A SPECIFIC PROPOSAL IS NEGOTIABLE, NOT
WHETHER NEGOTIATIONS ARE TAKING PLACE.