[ v13 p558 ]
13:0558(94)CA
The decision of the Authority follows:
13 FLRA No. 94
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-968
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had violated
section 7116(a)(1) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Thereafter, the Respondent and the General Counsel filed exceptions to
the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge 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 below.
In agreement with the Judge and based upon the rationale set forth in
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 10
FLRA No. 3 (1982), the Authority finds that the Respondent's refusal to
grant official time to employees, whose participation, pursuant to
7131(c) of the Statute, had been deemed necessary by a designated agent
of the Authority for the purpose of pre-hearing preparation constituted
a violation of section 7116(a)(1) and (8) of the Statute.
In so finding, the Authority specifically rejects the Judge's
apparent application of a "reasonableness test" with regard to the
Regional Director's authority to determine whether an employee is
necessary for participation in pre-hearing proceedings. In this regard,
section 2429.13 of the Authority's Rules and Regulations clearly
provides that:
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 . .
. .
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:
(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) Grant, upon request, official time for employees to participate
in 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) Restore annual leave to employees Martin Connell, Charles "Gary"
Wilson, Donald Coleman, Aubrey Milstead, Thomas Wood and Jimmie Redeford
for time used while engaged in pre-hearing preparation as witnesses for
unfair labor practice proceedings before the Federal Labor Relations
Authority.
(c) Post at its facilities in its Central Region offices 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. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced or covered by any other material.
(d) 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. December 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 employee in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL restore annual leave to employees Martin Connell, Charles
"Gary" Wilson, Donald Coleman, Aubrey Milstead, Thomas Wood and Jimmie
Redeford for time used while engaged in pre-hearing preparation as
witnesses for proceedings before the Federal Labor Relations Authority.
. . . (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, Region V, Federal Labor Relations Authority, Suite 1359-A, 175
W. Jackson Blvd., Chicago, Illinois 60604 and whose telephone number is:
(312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
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-968
Sandra LeBold, Esq.
For the General Counsel
Michael Sitcov, Esq.
For the Respondent
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., (hereinafter
called the Statute). Pursuant to an unfair labor practice charge filed
on May 14, 1981 by National Treasury Employees Union and National
Treasury Employees Union Chapter 88 (hereinafter called the Union)
against Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, (hereinafter called Respondent), the Regional Director, Region
5, issued a Complaint and Notice of Hearing on May 29, 1981. The
complaint alleges that Respondent failed and refused to comply with
Section 7131(c) of Chapter 71 of Title 5 of the United States Code and
Section 2429.13 of the Federal Labor Relations Authority's Rules and
Regulations in violation of Section 7116(a)(1) and (8) of the Statute.
A hearing was held before the undersigned in Cincinnati, Ohio at
which all parties were represented and were afforded full opportunity to
examine and cross-examine witnesses and to introduce evidence. Timely
briefs were filed and have been considered.
Upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings, conclusions and
recommendations.
Findings of Fact
At all times material the Union was the collective bargaining
representative of an appropriate unit of employees located in
Respondent's Central Region.
On November 7, 1980, Federal Labor Relations Authority attorney
Gregory A. Miksa wrote Respondent's attorney Michael Sitcov confirming a
November 6, 1980 telephone conversation involving a request to
interview, on official time several of Respondents' employees in the
Louisville, Kentucky and Cincinnati, Ohio areas. These interviews were
in connection with proceedings in unfair labor practice hearings in Case
Nos. 5-CA-535, 5-CA-536 and 5-CA-537, to be held on November 20, 1980.
Mr. Miksa's correspondence indicates that Mr. Sitcov maintained the
position that Respondent felt "official time (was) not appropriate for
such interviews" and that the request was denied. Respondent does not
deny that this was its sole position on the matter of official time for
these interviews.
Similarly, on November 17, 1980, Federal Labor Relations Authority
attorney Charles R. Prock wrote Mr. Sitcov an almost identical letter,
to the one referred to above, requesting to interview, on official time
certain employees in Cincinnati, Ohio. The interviews were to be
requested in connection with unfair labor practice Case No. 5-CA-592,
scheduled to be heard on December 2, 1980. Mr. Sitcov also denied that
request as inappropriate. As with the earlier request, Respondent's
only position was that such interviews were not appropriate.
On November 19, 1980, Crispen F. Lijek, Respondent's Acting Regional
Personnel Officer, denied a request of Union President Martin J. Connell
"for 10 hours spent on FLRA related matters on November 12 and 13, 1980
and for other pre-hearing meetings and preparations."
J. A. Kamber, Supervisor Inspector, responding to a request from
Jimmie L. Redeford for official time to meet with Mr. Prock on November
20, 1980 for pre-trial preparation in Case No. 5-CA-592 stated, "No
official time is permitted for pre-trial preparation."
A similar answer was given to the November 12, 1980 request of Aubrey
Milstead by Supervisory Inspector John W. Beauchamp. Beauchamp stated
that, "No official time is permitted for pre-trial preparation, however,
you may use annual leave for the time and purpose as requested."
Inspector Donald Coleman received an identical response to his request
for official time from his supervisor J. A. Kamber.
On November 18, 1980, Mr. Miksa and Mr. Prock interviewed the
Charging Party's witnesses in connection with pre-trial preparation in
Case Nos. 5-CA-535, 5-CA-536, 5-CA-537 and 5-CA-592. All of the
interviews were conducted during normal working hours and each employee
interviewed used annual leave.
On November 20, 1980, the hearing was held in Case Nos. 5-CA-535,
5-CA-536, and 5-CA-537. Among the witnesses called for the Charging
Party were Martin Connell, Charles "Gary" Wilson and Donald Coleman, all
of whom were requested by Mr. Miksa on November 7, 1980.
The hearing was held in Case No. 5-CA-592 on December 2, 1980.
Witnesses for the Charging Party included Martin Connell, Aubrey
Milstead, Thomas Woods and Jimmie Redeford, all of whom were requested
for interview by Mr. Prock, on November 17, 1980.
Respondent presented no witnesses.
Discussion and Conclusions
In Norfolk Naval Shipyard, Portsmouth, Virginia, 5 FLRA No. 105
(1981) the Authority adopted the conclusion of Chief Administrative Law
Judge John Fenton that, in essence, states official time is to be
granted for pre-trial preparation for a formal unfair labor practice
hearing. Respondent disagrees with that conclusion asserting that the
legislative history and relevant case law make it clear that official
time for pre-trial preparation must be negotiated. Erroneously in my
view, Respondent compares preparation for such hearings to negotiations
where the parties are indeed in a give and take rather than adversary
position. Further, under the Rules and Regulations of the Authority,
Section 2429.13, it is clear that a Regional Director has the authority
to determine that an employee is necessary for participation in
pre-trial proceedings and the amount of time required for such
participation is not subject to review by an Agency. Thus, where a
determination has been made by the Regional Director that a witness is
necessary for preparation there is nothing to bargain about.
Of course a Regional Director in his prosecutorial discretion does
not have unfettered power to demand unreasonable amounts of official
time. See Norfolk Naval Shipyard, supra.; Department of the Treasury,
Internal Revenue Service; Department of the Treasury, Internal Revenue
Service, Jacksonville District, Case No. 4-CA-823, OALJ-82-72 (1982).
However, a review of the record shows that the employees herein were
requested for only a short period of time and that they were necessary
to the presentation of the General Counsel's case, since all were called
as witnesses (except in circumstances where they could not be made
available) and testified during the proceedings. It is, therefore,
found that the request for official time in this matter was established
to be both reasonable and necessary. Moreover, the requests were
summarily denied both by Mr. Sitcov and several of Respondent's
supervisors, not because no necessity was shown, but because of
Respondent's position that such official time was inappropriate.
Likewise, the Respondent's contention that proceedings before the
Impasses Panel are similar in nature is ill founded. These proceedings
before the Panel are entirely controlled by the parties with no
participation by the General Counsel, preparation is an "internal union"
matter and are by interpretation of the Statute and legislative history
subject to negotiations. There is no similarity between the impasse
proceedings and an unfair labor practice proceeding other than that both
are adversary proceedings.
Respondent raised a question of necessity, but contends that the fact
employees were interviewed during the investigation of the charges in
the proceedings by the same attorney who interviewed them at the
pre-trial preparation demonstrates a lack of necessity for pre-trial
interviews. This argument is unpersuasive. Some Authority agents are
involved in two separate roles, first, as the investigator and in many
instances later, as the prosecutor of a case he or she has investigated.
However, I see no connection between this and the necessity, in the
prosecutorial role to prepare witnesses for hearing even though the
witness may have been interviewed earlier by the same agent who had
initially investigated the matter. It is elementary that witnesses who
testify in judicial proceedings are to be prepared in advance of those
proceedings. If for no other reason, such preparation without question
reduces the length of time required for such hearings, brings the issues
into clear focus and in many instances results in new information which
might aid in amicably settling the matter.
Although presenting no witnesses Respondent made several motions at
the hearing which require a ruling.
Respondent's Motion for Leave to Proceed with Discovery is denied.
Respondent asserts that lack of discovery will result in an unjust
administrative procedure in the event a decision adverse to its
interests is rendered. Respondent, however, made no showing of what
rights were to be protected if discovery is permitted. Neither the
Statute nor the Rules and Regulations of the Authority provide for such
pre-trial discovery. Further, the complaint in this matter involved a
simple factual situation and apprised Respondent of the nature of the
allegations in sufficient particularity to enable it to adequately
prepare its defense, which it did. Furthermore, the Authority denied
Respondent's interlocutory appeal on this matter.
Finally, Respondent's allegation that in view of the solicitation of
the charge by an Authority agent in this case, the complaint should be
dismissed, is found to lack merit. Respondent presented no evidence of
solicitation. The parties stipulated at the hearing that the Authority
agent:
Informed the Charging Party that in his view, such conduct was
violative of the (S)tatute and further advised the Charging Party
that in order to obtain a determination that such denial of
official time was violative of the Statute; and, to obtain an
appropriate remedy, an unfair labor practice charge would need to
be filed with the Regional Office.
After conferring with the Union's National Office, Union President
Martin Connell did indeed file the instant charge.
I agree with the General Counsel that in:
discharging his responsibilities as a public official charged
with enforcing public rights, to take proper measures calculated
to effectively remedy all of the unfair labor practices which had
been revealed by an investigation and all unfair labor practices
which, due to the statutory scheme, are in the sole and peculiar
knowledge of his agents. Thus, in my view, the Authority agent,
once he became aware of
the conduct complained of herein, had a duty to and did properly inform
the Charging Party of its rights under the Statute allowing any
subsequent action to be taken by the party. The facts before me do not
indicate any campaign to seek out charges, but the Authority agent
merely informed the Union agent what rights were available under the
Statute. This conduct falls far short of solicitation.
Based on the above, it is found that the General Counsel established
by a preponderance of the evidence that Respondent refused to comply
with Section 7131(c) of the Statute and thereby violated Section
7116(a)(1) and Section 7116(a)(8) of the Statute.
Having found that Respondent violated Section 7116(a)(1) and
7116(a)(8) of the Statute, I recommend that the Authority adopt the
following Order:
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 Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms shall:
1. Cease and desist from:
(a) Refusing to allow official time for pre-hearing preparation
for employees determined to be necessary as witnesses in unfair
labor practice proceedings.
(b) In any like to related manner, failing or refusing to
comply with any provision of the Federal Service Labor-Management
Relations Statute.
(c) In any like or related manner, interfering with,
restraining, or coercing any employees in the exercise of any
right under the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Grant, upon request, official time for employees to
participate in pre-trial preparation for Federal Labor Relations
Authority unfair labor practice proceedings where necessary.
(b) Restore annual leave to employees Martin Connell, Charles
"Gary" Wilson, Donald Coleman, Aubrey Milstead, and Thomas Wood
and Jimmie Redeford for time used while engaged in pre-trial
preparation as witnesses for unfair labor practice proceedings
before the Federal Labor Relations Authority.
(c) Post at its Central Region Offices, 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 the Principal Regional Official and shall be posted
and maintained by her 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 by Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the 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.
ELI NASH, JR.
Administrative Law Judge
Dated: May 21, 1982
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 TITLE 5 OF THE UNITED STATES CODE FEDERAL
SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES
THAT:
WE WILL NOT refuse to grant official time to employees for pre-trial
preparation for unfair labor practice proceedings before the Federal
Labor Relations Authority.
WE WILL NOT fail or refuse to comply with any provision of the
Federal Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL restore annual leave to employees Martin Connell, Charles
"Gary" Wilson, Donald Coleman, Aubrey Milstead and Thomas Wood and
Jimmie Redeford for time used while engaged in pre-trial preparation as
witnesses for proceedings before the Federal Labor Relations Authority.
. . . (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, Federal Labor Relations Authority, Region V, who
address is: 175 West Jackson Boulevard, Suite A-1359, Chicago, Illinois
60604, and whose telephone number is: (312) 886-3468.