[ v09 p41 ]
09:0041(8)CA
The decision of the Authority follows:
9 FLRA No. 8
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, DALLAS, TEXAS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 121
Charging Party
Case No. 6-CA-806
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN THE
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 A BRIEF IN SUPPORT THEREOF.
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 THE ENTIRE RECORD IN THE SUBJECT 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
AUTHORITY AND SECTION 7118 OF THE STATUTE, IT IS HEREBY ORDERED THAT THE
DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
DALLAS, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE OFFICIAL TIME TO EMPLOYEE
JEANNETTE GREEN, PURSUANT TO
THE PROVISIONS OF SECTION 7131(A) OF THE STATUTE, WHILE SHE IS
ENGAGED IN REPRESENTING THE
NATIONAL TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, THE EMPLOYEES'
EXCLUSIVE
REPRESENTATIVE, DURING MID-TERM LABOR-MANAGEMENT NEGOTIATIONS.
(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) RETROACTIVELY PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN
OFFICIAL TIME FOR THE
PERFORMANCE OF HER REPRESENTATIONAL DUTIES ON MAY 9, 1980, AND MAKE
HERE WHOLE FOR THE ANNUAL
LEAVE SHE UTILIZED ON THAT DATE.
(B) POST AT ITS FACILITIES 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 REPRESENTATIVE AND SHALL BE POSTED AND MAINTAINED FOR 60
CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES WHERE NOTICES ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL
BE TAKEN TO ENSURE THAT THE 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 6, IN WRITING, WITHIN 30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO COMPLY WITH HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 11, 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 OFFICIAL TIME TO EMPLOYEE
JEANNETTE GREEN WHILE SHE IS ENGAGED IN REPRESENTING THE NATIONAL
TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DURING MID-TERM LABOR-MANAGEMENT NEGOTIATIONS PURSUANT
TO SECTION 7131(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
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 RETROACTIVELY PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN
OFFICIAL TIME FOR THE PERFORMANCE OF HER REPRESENTATIONAL DUTIES ON MAY
9, 1980, AND MAKE HER WHOLE FOR THE ANNUAL LEAVE SHE UTILIZED ON THAT
DATE.
(AGENCY OR ACTIVITY)
DATE: 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 VI,
BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450, P. O. BOX
2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS, (214)
767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
STEPHEN R. SUNDGAARD, ESQ.
MICHAEL SITCOV, ESQ., ON BRIEF
FOR THE RESPONDENT
JAMES E. DUMERER, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
CASE NO. 6-CA-806
DECISION
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN UNFAIR LABOR
PRACTICE CHARGE FILED ON OCTOBER 31, 1980, WITH THE FEDERAL LABOR
RELATIONS AUTHORITY. CONSEQUENTLY, ON DECEMBER 23, 1980, THE REGIONAL
DIRECTOR, REGION VI, OF THE AUTHORITY ISSUED A COMPLAINT AND NOTICE OF
HEARING ALLEGING THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (8) OF
THE STATUTE BY REFUSING TO GRANT OFFICIAL TIME TO A UNION REPRESENTATIVE
ENGAGED IN LABOR-MANAGEMENT NEGOTIATIONS WITH RESPONDENT. BY ITS
ANSWER, RESPONDENT ADMITS THE FACTUAL ALLEGATIONS OF THE COMPLAINT BUT
DENIES THAT THOSE FACTS CONSTITUTE A VIOLATION OF THE STATUTE.
A HEARING WAS HELD ON MAY 20, 1981, IN DALLAS, TEXAS. ALL PARTIES
WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO INTRODUCE
EVIDENCE. /2/ A POST HEARING BRIEF WAS FILED BY RESPONDENT.
THE FACTS IN THIS CASE ARE SHORT AND SIMPLE. ON MAY 9, 1980,
JEANNETTE GREEN, PRESIDENT OF NTEU, CHAPTER 121, AND AN EMPLOYEE OF
RESPONDENT, MET WITH RESPONDENT FOR THE PURPOSE OF ENGAGING IN MID-TERM
NEGOTIATIONS CONCERNING A CHANGE IN THE USE OF TYPEWRITERS BY BARGAINING
UNIT EMPLOYEES. MS. GREEN WAS REQUIRED TO TAKE ONE HOUR OF ANNUAL LEAVE
FOR THE TIME SPENT IN THE NEGOTIATIONS ON THAT DATE.
RESPONDENT ADMITS THAT IT HAS REFUSED TO PROVIDE OFFICIAL TIME FOR AN
EMPLOYEE ENGAGED IN MID-TERM NEGOTIATIONS, AS CHARGED, AND "PROMISES
THAT IT WILL CONTINUE TO DO SO WHENEVER AND WHEREVER A SIMILAR
CIRCUMSTANCE ARISES." IT ALSO ACKNOWLEDGES THAT THE AUTHORITY, IN
INTERPRETATION AND GUIDANCE, 2 FLRA NO. 31, HAS INTERPRETED SECTION
7131(A) OF THE STATUTE AS REQUIRING AGENCIES TO GRANT OFFICIAL TIME TO
EMPLOYEES REPRESENTING FEDERAL EMPLOYEES UNIONS AT MID-TERM
NEGOTIATIONS. HOWEVER, RESPONDENT ARGUES THAT SUCH AN INTERPRETATION IS
BEYOND THE AUTHORITY OF FLRA AND IS WITHOUT SUPPORT IN THE LEGISLATIVE
HISTORY OF THE STATUTE OR IN PRIVATE SECTOR LABOR RELATIONS EXPERIENCE.
I CONCLUDE THAT TO OVERRULE A DECISION OF THE FEDERAL LABOR RELATIONS
AUTHORITY IS BEYOND THE CIRCUMSCRIBED COMPETENCE OF AN ADMINISTRATIVE
LAW JUDGE HEARING AN UNFAIR LABOR PRACTICE CASE AND THEREFORE, I AM
CONSTRAINED TO FIND A VIOLATION OF THE STATUTE AS CHARGED IN THE
COMPLAINT. ACCORDINGLY, I RECOMMEND THAT THE AUTHORITY ISSUE THE
FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C):
ORDER
ORDERED, THAT THE DEPARTMENT OF THE TREASURY, BUREAU OF ALCOHOL,
TOBACCO AND FIREARMS, DALLAS, TEXAS SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO AUTHORIZE AND PROVIDE OFFICIAL TIME TO
EMPLOYEE JEANNETTE
GREEN, PURSUANT TO THE PROVISIONS OF 5 C.F.R. 7131(A), WHILE SHE IS
ENGAGED IN REPRESENTING
THE NATIONAL TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, AN
EXCLUSIVE REPRESENTATIVE, DURING
MID-TERM LABOR-MANAGEMENT NEGOTIATIONS.
(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 ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES
OF THE STATUTE.
(A) PROVIDE UNION REPRESENTATIVE JEANNETTE GREEN OFFICIAL TIME FOR
THE PERFORMANCE OF HERE
REPRESENTATIONAL DUTIES ON MAY 9, 1980, AND MAKE HER WHOLE FOR THE
ANNUAL LEAVE SHE UTILIZED
ON THAT DATE.
(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE
SIGNED BY AN AUTHORIZED REPRESENTATIVE AND SHALL BE TAKEN TO ENSURE
THAT THE NOTICES ARE NOT
ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIALS.
(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 WITH THE ORDER.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 18, 1981
WASHINGTON, D.C.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE OFFICIAL TIME TO EMPLOYEE
JEANNETTE GREEN WHILE SHE IS ENGAGED IN REPRESENTING THE NATIONAL
TREASURY EMPLOYEES UNION AND ITS CHAPTER 121, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, DURING MID-TERM LABOR-MANAGEMENT NEGOTIATIONS.
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 UNION REPRESENTATIVE JEANNETTE GREEN OFFICIAL TIME
FOR THE PERFORMANCE OF HER REPRESENTATIONAL DUTIES ON MAY 9, 1980, AND
MAKE HER WHOLE FOR THE ANNUAL LEAVE SHE 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 OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VI,
BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450, P.O. BOX 2640,
DALLAS, TEXAS 75221.
--------------- FOOTNOTES$ ---------------
/1/ BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION,
DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO.
40(1980), ENFORCED SUB NOM. BUREAU OF ALCOHOL, TOBACCO AND FIREARMS V.
FEDERAL LABOR RELATIONS AUTHORITY, NO. 80-7673 (9TH CIR. MAR. 22,
1982).
/2/ AT THE HEARING, RESPONDENT SOUGHT TO INTRODUCE, AS ITS ONLY
EVIDENCE, A WRITTEN STATEMENT OF COUNSEL, NOT AUTHORED BY COUNSEL AT THE
HEARING. I RULED THAT IT WOULD NOT BE RECEIVED AS AN EXHIBIT. COUNSEL
FOR RESPONDENT WAS ALLOWED TO READ CERTAIN PORTIONS OF THE STATEMENT
INTO THE RECORD BUT, UPON OBJECTION BY COUNSEL FOR THE GENERAL COUNSEL,
AND AFTER INSPECTING THE CONTENTS OF THE STATEMENT, I RULED THAT THOSE
PORTIONS OF THE STATEMENT WHICH WERE NOT ALREADY READ INTO THE RECORD
WERE NOT GERMANE TO THE ISSUE IN THE CASE AND I REFUSED TO ALLOW COUNSEL
FOR RESPONDENT TO CONTINUE READING THE STATEMENT. THOSE RULINGS HAVE
NOT BEEN CHALLENGED ON BRIEF.