[ v24 p187 ]
24:0187(26)CA
The decision of the Authority follows:
24 FLRA No. 26
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON
AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Case No. 5-CA-40259
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
Respondent. The issue presented is whether the Respondent's failure and
refusal to provide official time and travel and per diem expenses to
employee Paul Palacio, who was subpoenaed by the General Counsel to
appear in a related unfair labor practice hearing, constituted a failure
to comply with section 7131(c) of the Federal Service Labor-Management
Relations Statute (the Statute) and section 2429.13 of the Authority's
Regulations in violation of section 7116(a)(1) and (8) of the Statute.
In agreement with the Judge, we find that the Respondent's conduct
violated the Statute.
II. Background
Prior to the unfair labor practice hearing in the related case (Case
No. 5-CA-30322, Department of the Air Force, Headquarters Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 22 FLRA No. 56
(1986)), the Respondent informed employee Palacio that his request for
official time and travel and per diem expenses related to his appearance
as a subpoenaed witness in that case was denied. At the hearing in Case
No. 5-CA-30322, Administrative Law Judge Chaitovitz denied Respondent's
motion to revoke the subpoenas. Palacio traveled at his own expense and
used annual leave for that portion of the hearing during which he was a
witness. He had not been reimbursed by Respondent for these expenses,
nor has the annual leave he used been restored.
III. Judge's Decision
The Administrative Law Judge in this case, Judge Oliver, concluded
that the Respondent's denial of official time and its refusal to provide
travel and per diem expenses to Palacio constituted a failure to comply
with section 7131(c) of the Statute and section 2429.13 of the
Authority's Regulations. He therefore found a violation of section
7116(a)(1) and (8).
In concluding that the Respondent's denial of official time
constituted a failure to comply with section 7131(c) of the Statute,
Judge Oliver noted that in Department of Health and Human Services,
Social Security Administration, Great Lakes Program Service Center, 10
FLRA, 510 (1982), the Authority held that once the participation of an
employee has been deemed necessary by a designated agent of the
Authority, the agency has no discretion to determine whether or not an
employee should be on official time. Judge Oliver also pointed out that
the Authority has held that an agency is required to provide official
time in the amount determined by the Authority's designated agent, and
has rejected arguments like those by Respondent that such a
determination is subject to a "reasonableness" standard.
As to Judge Chaitovitz's denial in the related case of Respondent's
motion to revoke the subpoenas, Judge Oliver noted that Judge Chaitovitz
had the power, subject to Authority review, to determine whether
Palacio's participation in the hearing was necessary. Judge Oliver
stated that the Authority's regulations provide procedures whereby Judge
Chaitovitz's ruling could be reviewed in that case. Accordingly, Judge
Oliver concluded that Judge Chaitovitz's ruling could not be
collaterally attacked in this case and that given the ruling by Judge
Chaitovitz, "Respondent was obligated to provide Mr. Palacio with
official time and follow the Authority procedures for review if it
wished to challenge the Judge's decision."
With respect to Respondent's refusal to pay Palacio's travel and per
diem expenses, Judge Oliver noted that the Authority's interpretation of
section 7131(c) of the Statute was set forth in section 2429.13 of its
Regulations, which provides that "necessary transportation and per diem
expenses shall be paid by the employing activity or agency" for an
employee on official time whose participation in an Authority proceeding
is deemed necessary. The Judge found that, in view of section 2429.13
of the Regulations, Respondent failed to comply with section 7131(c) of
the Statute by refusing to provide travel and per diem expenses to
Palacio and thereby violated section 7116(a)(1) and (8) of the Statute,
as alleged by the General Counsel.
IV. Positions of the Parties
The Respondent filed a motion with the Authority seeking
consolidation of this case with the related unfair labor practice case
noted above. The Respondent also filed exceptions to the Judge's
Decision, specifically to the Judge's conclusion that under section
7131(c) of the Statute and section 2429.13 of the Regulations Palacio
was entitled to travel and per diem expenses based on his entitlement to
official time. The Respondent's exceptions essentially repeat arguments
made to the Judge challenging the lawfulness of the Authority's
Regulations. The Respondent also excepted to the Judge's recommended
Order requiring that Palacio be provided with official time, contending
that the validity of the subpoenas concerning Palacio had not yet been
determined in the related case.
V. Analysis
A. Motion to Consolidate
For the reasons stated in Department of the Air Force, Headquarters
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 22
FLRA No. 56 (1986), the Authority denies the Respondent's motion to
consolidate.
B. Official Time
In agreement with the Judge, we find that the Respondent's denial of
official time to Palacio constituted a failure to comply with section
7131(c) of the Statute in violation of section 7116(a)(1) and (8) of the
Statute. As the Judge noted, once Palacio's participation was deemed
necessary by an agent of the Authority, Respondent was obligated to
comply or to seek review in that proceeding as provided in the
Authority's Regulations; no collateral attack is permitted. In fact,
Respondent did seek review of that determination in Case No. 5-CA-30322,
and the Authority denied Respondent's exception. Wright-Patterson Air
Force Base, Ohio, 22 FLRA No. 56.
C. Travel and Per Diem Expenses
The Authority also adopts the Judge's conclusion that the
Respondent's denial of travel and per diem expenses to Palacio related
to his required participation in an unfair labor practice hearing
constituted a failure to comply with section 7131(c) of the Statute as
interpreted in section 2429.13 of the Authority's Regulations.
Therefore, Respondent's denial violated section 7116(a)(1) and (8) of
the Statute.
As noted above, Respondent in essence argues that section 2429.13 of
our Regulations is not in accordance with law. We disagree.
In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983), the Supreme Court held that an agency's obligation under section
7131(a) of the Statute to provide official time to employees
representing an exclusive representative in the negotiation of a
collective bargaining agreement does not require the agency to pay
travel and per diem expenses incurred by those employees. The Court
noted that the Authority had previously construed section 7131(c) in its
Regulations to require the payment of these expenses for employees on
official time participating in proceedings before the Authority, and the
Court stated: "We, of course, express no view as to whether different
considerations uniquely applicable to proceedings before the Authority
might justify the FLRA's interpretation of section 7131(c)." BATF v.
FLRA, 464 U.S. at 99 n.9. In our view, our interpretation of section
7131(c) as set forth in section 2429.13 of the Regulations is warranted
for the reasons discussed below.
Section 7131(c) of the Statute provides that "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." Pursuant to its authority
under section 7134 of the Statute to prescribe regulations to carry out
the provisions of the Statute, and consistent with its responsibilities
under section 7105 of the Statute, the Authority promulgated section
2429.13 of its Regulations as an interim regulation in 1979 which became
final in 1980. See 44 Fed. Reg. 44740, 44771 (1979) and 45 Fed. Reg.
3482 (1980).
Section 2429.13 was a continuation of the practice established by the
Assistant Secretary of Labor for Labor-Management Relations for the
conduct of hearings under Executive Order 11491, as amended. That
practice was reflected in 29 CFR Section 206.7(g), which was promulgated
in 1973 and provided that employees who had been determined to be
necessary as witnesses at a hearing shall be granted official time and
"(i)n addition, necessary transportation and travel and per diem
expenses shall be paid by the employing activity or agency." See 38 Fed.
Reg. 30875 (1973). That regulation was in effect throughout the
remainder of the Executive Order program. Presumably, Congress was
aware of this practice when it enacted the Statute; however, unlike in
some other areas, there is no indication in the legislative history of
any Congressional intent to change this practice.
Moreover, section 2429.13 assists in enabling the Authority to
develop complete records in proceedings before it so that the Authority
may carry out its responsibilities under the Statute. The regulation
assures employees whose participation in a proceeding is deemed
necessary by an Authority agent that they may testify without concern
over whether authorization for necessary travel and per diem expenses
will be granted by their employing agency. It also serves to expedite
the process by avoiding unnecessary procedural delays.
Finally, our practice as set forth in section 2429.13 is consistent
with that of other Federal agencies having analogous responsibilities to
adjudicate matters involving federal employees. See, for example, In re
Maisto, 28 MSPR 436 (1985) (Merit Systems Protection Board ordered
agency, pursuant to 5 C.F.R. Section 1201.33, to compensate employee who
testified at Board hearing for the time spent in transit to and from the
hearing and any time spent waiting to testify "as well as for expenses
incurred by the actual transportation to and from the hearing.").
Accordingly, in our view, section 2429.13 of the Authority's
Regulations is in accordance with law.
VI. Conclusion
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 made at the hearing, finds that no prejudicial error was
committed, and thus affirms these rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings, conclusions and recommend Order to the extent that
they are consistent with our decision.
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 Authority hereby orders
that the Department of the Air Force, Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Denying official time, transportation, and per diem expenses to
an employee to participate in a hearing before the Federal Labor
Relations Authority when such participation has been deemed necessary by
any Administrative Law Judge, Regional Director, or other 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 Statute.
(a) Provide official time to Paul Palacio for his participation in an
unfair labor practice hearing before the Authority in Case No.
5-CA-30322 from March 12 through March 14, 1984, and make him whole for
annual leave used for the purpose; and, in addition, upon submission of
a properly documented voucher, reimburse him for transportation and per
diem expenses incurred.
(b) Post at its facilities at Wright-Patterson Air Force Base and
Kelly Air Force Base 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 Commander, Air Force Logistics
Command, 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.
(c) 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.
Issued, Washington, D.C., November 26, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 an employee to participate in a
hearing before the Federal Labor Relations Authority when such
participation has been deemed necessary by any Administrative Law Judge,
Regional Director, or other 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 official time to Paul Palacio for his participation
in an unfair labor practice hearing before the Authority in Case No.
5-CA-30322 from March 12 through March 14, 1984, and make him whole for
annual leave used for that purpose; and, in addition, upon submission
of a properly documented voucher, reimburse him for transportation and
per diem expenses incurred.
(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 whose address is.
175 West Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and
whose telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 5-CA-40259
Department of the Air Force, Headquarters,
Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio
Respondent
and
American Federation of Government Employees,
Council 214, AFL-CIO
Charging Party
Major Charles L. Brower, Esquire
Major W. Kirk Underwood, Esquire
For the Respondent
Mr. Paul Palacio
For the Charging Party
Sandra LeBold, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Five, Federal Labor Relations Authority,
Chicago, Illinois, against the Department of the Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio (Respondent) based on an amended charge filed by the American
Federation of Government Employees, Council 214, AFL-CIO (Charging Party
or Union). The complaint alleged, in substance, that Respondent
violated sections 7116(a)(1) and (8) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the
Statute), by failing and refusing to comply with section 7131(c) of the
Statute and section 2429.13 of the Authority's Rules and Regulations.
More specifically, the complaint alleges that Respondent failed and
refused to provide official time, travel, and per diem expenses to
Respondent's employee, Paul Palacio, to participate in an unfair labor
practice hearing before the Authority in Case No. 5-CA-30322, as
requested and deemed necessary by a Regional Director of the Authority.
The complaint also alleges that Respondent violated section 7116(a)(1)
and (8) by each of the alleged acts.
Respondent's answer admitted the jurisdictional allegations as to the
Respondent, Charging Party, and the charge, but denied any violation of
the Statute.
A hearing was held in Dayton, Ohio. The Respondent, Charging Party,
and the General Counsel were represented and afforded full opportunity
to be heard, adduce relevant evidence, examine and cross-examine
witnesses, and file post-hearing briefs. Respondent and the General
Counsel filed helpful briefs. Based on the entire record, including my
observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law, and recommendations.
Findings of Fact
1. The American Federation of Government Employees, AFL-CIO (AFGE)
is the collective bargaining representative of a consolidated
appropriate unit of Respondent's employees located at, among other
places, Wright-Patterson Air Force Base (AFB), Dayton, Ohio; Hill AFB,
Ogden, Utah; Robins AFB, Warner Robins, Georgia; McClellan AFB,
Sacramento, California; Kelly AFB, San Antonio, Texas; and Tinker AFB,
Oklahoma City, Oklahoma.
2. At all times material herein the Charging Party, AFGE, Council
214, has been an agent of AFGE with respect to bargaining with
Respondent on behalf of the collective bargaining unit.
3. At all times material, Paul Palacio has been, and is now,
president of the Charging Party. As president, Mr. Palacio is assigned
to Wright-Patterson AFB in Dayton, Ohio, where Headquarters, Air Force
Logistics Command (AFLC) is located, although technically Palacio is
assigned to Kelly AFB as a machine tool operator. Section 4.12 of the
Master Labor Agreement between Respondent and the Charging Party
authorizes one Union representative to be on 100% official time at
Headquarters, AFLC. Palacio is now, and has been at various times, that
representative, as more fully explained herein.
4. On February 1, 1984, the Regional Director, Federal Labor
Relations Authority, Chicago Region, Chicago, Illinois issued a subpena
to Palacio at the request of Judith Ramey, Counsel for the General
Counsel, FLRA, requiring that he appear before an administrative Law
Judge on March 12, 1984 at the Murray Federal Building, Oklahoma City,
Oklahoma to testify in the matter of Department of the Air Force,
Headquarters AFLC, Wright-Patterson Air Force Base, Ohio (Respondent)
and American Federation of Government Employees, Council 214, (Charging
Party), Case No. 5-CA-30322, involving the same parties as the instant
case. The subpena stated on its face:
NOTICE TO WITNESS - Witness fees and mileage shall be paid by
the party at whose instance the witness appears, except that any
witness who is employed by the Federal Government shall be granted
official time and be paid necessary transportation and per diem
expenses by the employing activity or agency.
5. The complaint in Case No. 5-CA-30322 alleged that on or about the
month of February 1983, 63 supervisors, each named in the complaint,
established and/or implemented a quota system for rating employees under
the civilian potential appraisal system under which system supervisors
rated employees in accordance with established numeric quotas for the
distribution of rating scores; that the use of quotas constituted a
change in conditions of employment; and that Respondent did not give
the Union notice and opportunity to bargain about the impact and
implementation of such change in violation of section 7116(a)(1) and (5)
of the Statute. Eleven of the 63 supervisors were assigned to
Wright-Patterson AFB, Ohio; 16 to Hill AFB, Utah; 6 to Robins AFB,
Georgia; 11 to McClellan AFB, California; 3 to Kelly AFB, Texas, and
16 to Tinker AFB, Oklahoma. The complaint did not allege that these
quotas were implemented in accordance with a command-wide policy. The
Regional Director ordered the case to be heard at Dayton, Ohio.
6. Due to the large number of geographically dispersed witnesses in
Case No. 5-CA-30322, the Administrative Law Judge assigned to hear the
case, Samuel A. Chaitovitz, ruled that the hearing would be held in
three locations: Dayton, Ohio, Oklahoma City, Oklahoma and Macon,
Georgia. Mr. Palacio was also subpenaed to appear on February 8, 1984
in Dayton, Ohio and April 11, 1984 in Macon, Georgia. /1/
7. On February 6, 1984, Palacio sent a copy of his three subpenas to
General James P. Mullins and requested official time, travel and per
diem expenses in order to comply with the subpenas.
8. On February 8, 1984, the first phase of the hearing opened in
Dayton, Ohio. Major Charles Brower, counsel for the Respondent, moved
that Administrative Law Judge Chaitovitz revoke Palacio's subpenas for
the Oklahoma City and Macon phases of the hearing on the grounds that
his testimony was not relevant to the proceeding at those locations.
The motion was argued, and Administrative Law Judge Chaitovitz
questioned counsel, as well as Mr. Palacio, who was representing the
Charging Party, concerning the necessity for Palacio's testimony in
Oklahoma City and Macon. /2/ When asked by Judge Chaitovitz, "Why is he
necessary?," Ms. Ramey, Counsel for the Geeral Counsel, replied,
. . . (T)he General Counsel does not know all of what testimony
will be presented by Respondent at the other locations (Oklahoma
City and Macon). There are witnesses on the tentative witness
list who have not been discussed and who even Respondent's counsel
has indicated he wasn't sure what their testimony might be because
they had been recommended to him as witnesses . . . by counsel at
the other bases. Consequently, . . . since I don't know what
rebuttal might be needed, I at least need to have Mr. Palacio
present as somebody who might possibly be able to rebut that
testimony. The General Counsel deems him to be a necessary
witness and the Regional Director has issued the necessary
subpoenas.
Judge Chaitovitz also ascertained from Mr. Palacio that he had been
the person who had been dealing with management generally on the problem
and was the person who received complaints from the various regional and
field representatives. Respondent's counsel countered that Mr. Palacio
possessed only hearsay knowledge of what had happened at the other
locations and that local union presidents at the other locations "can
satisfy any role that she thinks Mr. Palacio might be able to serve her
if he were at her side at these various locations." After hearing
argument, Judge Chaitovitz denied the motion to revoke, ruling as
follows:
. . . I recognize that in deciding whether a witness is
necessary, I am not to superimpose my judgment for that of counsel
trying a case. That counsel may have another witness that may or
may not serve the same purpose. I don't think if a witness is
reasonably related that I can say, "No, I'm going to make you use
someone else." I don't think my authority goes that far. I am not
going to revoke the subpoena, but I will permit the subpoena to
stand, because I think that Mr. Palacio is -- may reasonably be
expected to have relevant information that can be admissible with
respect to what happened at these other bases.
9. During the Dayton phase of the hearing on February 8, 1984, Mr.
Palacio testified during General Counsel's presentation of its
case-in-chief. He received, or, under the contract continued on,
official time. No travel and per diem expenses were required for
Palacio since he lives in Dayton.
10. By letter dated March 1, 1984, Respondent informed Palacio, in
response to his February 6, 1984 request, that travel and per diem
expenses would not be provided by Respondent.
11. By letter to Respondent dated March 6, 1984 Palacio repeated his
request for official time and travel and per diem expenses in order to
comply with the subpenas.
12. On March 8, 1984 Respondent reiterated its position that payment
of Palacio's travel expenses for the hearing in Oklahoma City and Macon
was not appropriate from Air Force funds. Respondent claimed
participation "is both redundant and irrelevant." Respondent noted that
Palacio had already testified during the Dayton phase of the case, that
he had been subpoenaed as a mere "potential rebuttal" witness, and that
his "potential rebuttal" testimony would be "nothing more than hearsay
evidence having little or no probative value." Respondent also stated
that the Oklahoma City phase was scheduled to last two weeks (March
12-23, 1984), and Mr. Palacio would not be needed as a potential
rebuttal witness until late in that 2-week period. Respondent noted
that Mr. Palacio was already scheduled to be on official time in
Oklahoma City beginning March 16, 1984 for several days in connection
with contract negotiations. Respondent stated it would have no
objection to his taking official time during the particular period in
order to provide the testimony.
13. On March 9, 1984, Palacio sent a copy of his Oklahoma City
subpena to E. Villanueva, his supervisor at Kelly AFB, Texas and
requested approval of official time to attend the hearing as directed by
the subpena. /3/ In the alternative, Mr. Palacio requested annual leave
to attend the hearing, but made it clear that this request was made
under protest. The Respondent answered Mr. Palacio in a letter dated
March 16, 1984, denying him official time but approving his annual leave
request.
14. Palacio traveled to Oklahoma City, Oklahoma from Dayton, Ohio
and testified at the hearing, which took place from March 12 through
March 14, 1984. /4/ Palacio was called during the merits of the Kelly
AFB case. He was asked two questions. He apparently remained until the
end of the hearing at the request of the General Counsel. Palacio did
not tesify as a rebuttal witness. Palacio used annual leave during this
period and was not reimbursed by Respondent for his transportation and
per diem expenses. /5/
Discussion, Conclusions, and Recommendations
Position of the Parties
The complaint alleges that Respondent failed to comply with section
7131(c) of the statute /6/ and section 2429.13 of the Authority's Rules
and Regulations /7/ by refusing to provide official time, travel, and
per diem expenses to Respondent's employee, Paul Palacio, to participate
in an unfair labor practice hearing, as requested and deemed necessary
by the Regional Director of the Authority, thus violating sections
7116(a)(1) and (8) of the Statute. /8/
With respect to official time, Respondent defends on the grounds that
Judge Chaitovitz abused his discretion when he determined that Palacio
was a necessary witness. Respondent claims that the General Counsel's
basis for subpenaing Palacio was incredibly vague; Mr. Palacio
possessed only hearsay knowledge of the allegations to be litigated;
local Union officials at Oklahoma City and Macon were available as
witnesses and just as suitable; and Mr. Palacio had already testified
during the Dayton phase with regard to all of his first-hand knowledge.
Respondent contends that even if Judge Chaitovitz properly determined
that Mr. Palacio was a "necessary" witness, that determination should be
subject to the application of a "reasonableness test."
The General Counsel maintains that the need for Mr. Palacio's
participation as a witness was made by the General Counsel prior to the
time the hearing had been convened; that Respondent was, therefore,
obligated to provide Palacio official time, travel, and per diem
according to Authority decisions; the General Counsel's determination
was not subject to a "reasonableness" standard; and if Respondent
disagreed with Judge Chaitovitz's ruling on its motion to revoke
Palacio's subpena, it must obtain review of that decision by filing
exceptions in that case and may not litigate the matter in this unfair
labor practice proceeding.
Official Time
As noted, section 7131(c) of the Statute empowers the Authority to
make determinations as to whether employees participating in proceedings
before it shall be authorized official time.
In this case the Regional Director, prior to the hearing, determined
that Palacio's participation as a witness in the hearing was necessary
by issuing a subpena at the request of counsel for the General Counsel.
Under section 7104(f)(2)(B) of the Statute the General Counsel is
empowered to "file and prosecute complaints" and such express authority
necessarily encompasses the manner in which the complaints are to be
prosecuted.
The Authority has held that once the participation of an employee has
been deemed necessary by a designated agent of the Authority, there is
no discretion in the agency to determine whether or not an employee
should be on official time. Department of Health and Human Services,
Social Security Administration, Great Lakes Program Service Center, 10
FLRA 510, 512 (1982). The Authority has also held that an agency is
required to provide official time in the amount requested by the
designated agent of the Authority and it has rejected recommended
decisions which would have applied a "reasonableness" standard to the
request. Department of the Treasury, Internal Revenue Service, 15 FLRA
No. 108, 15 FLRA 506 (1984); Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 13 FLRA No. 94, 13 FLRA 558 (1983);
Department of Health and Human Services, Social Security Administration
Great Lakes Program Service Center, 10 FLRA No. 90, 10 FLRA 510 (1982).
The Authority has held that "once an unfair labor practice hearing
has convened and before the close of the hearing, . . . the
Administrative Law Judge has the power under the Authority's Rules and
Regulations to determine, subject to review by the Authority, whether
the participation of any employee in any proceeding before the Authority
is necessary. . . ." Norfolk Naval Shipyard, Portsmouth, Virginia, 5
FLRA No. 105, 5 FLRA 788 (1981). At the outset of the hearing in Case
No. 5-CA-30322, Judge Chaitovitz heard argument as to whether Mr.
Palacio was a necessary witness in connection with Respondent's motion
to revoke Palacio's subpenas. Judge Chaitovitz denied to motion to
revoke. The Authority's Rules and Regulations, section 2423.26-29 and
2429.7(e), provide the procedures whereby his ruling may be reviewed in
that case. His ruling may not be collaterally attacked here as an abuse
of discretion. Given the ruling by the Administrative Law Judge,
Respondent was obligated to provide Mr. Palacio with official time and
follow the Authority procedures for review if it wished to challenge the
Judge's decision.
The Respondent's denial of official time to Mr. Palacio constitutes a
failure to comply with section 7131(c) in violation of section
7116(a)(1) and (8) of the Statute, as alleged.
Travel and Per Diem Expenses
With respect to transportation and per diem expenses, the Respondent
asserts that section 7131(c) of the Statute does not require an agency
to pay an employee transportation or per diem expenses; 5 C.F.R.
Section 2429.13 is not in accordance with law; entitlement to such
expenses is governed solely by 5 U.S.C. Section 5751 and Section 5702;
5 C.F.R. Section 2429.13 constitutes and unauthorized assumption by the
FLRA of a major policy decision properly made by Congress; and, even if
5 C.F.R. Section 2429.13 is given effect, Judge Chaitovitz abused his
discretion when he determined that Palacio was a necessary witness and
that determination should have been subject to a "reasonableness" test.
As noted, section 7131(c) of the Statute empowers the Authority to
make determinations as to whether employees participating in proceedings
before it shall be authorized official time. Section 7131(c) says
nothing about transportation or per diem expenses. The Authority,
however, in Interpretation and Guidance, 2 FLRA 265, 270 (1979), in
connection with the interpretation of section 7131(a), noted that it had
previously interpreted section 7131(c), in section 2429.13 of its
Regulations, as entitling the employee on such official time to
transportation and per diem expenses. See also U.S. Department of
Justice, Federal Prison System, 10 FLRA 662 (1982); Department of
Health and Human Services, Social Security Administration, Great Lakes
Program Service Center, 10 FLRA 510 (1982; Department of the Treasury,
Bureau of Alcohol, Tobacco and Firearms, 10 FLRA 10 (1982).
In Bureau of Alcohol, Tobacco and Firearms v. FLRA, 114 LRRM 3393,
3399, 104 S. Ct. 439 (1983), the Supreme Court concluded that the
obligation of an agency under section 7131(a) of the Statute to provide
official time to employees representing an exclusive representative in
the negotiation of a collective bargaining agreement does not encompass
the payment of travel expenses and per diem allowances. The Court
explicitly stated that there is no reference in the Statute or its
legislative history to travel expenses and per diem allowances. 114
LRRM at 3399. The Supreme Court noted that the Authority had previously
construed section 7131(c) in its regulations to require the payment of
travel expenses and per diem expenses. The Court stated, "The fact that
the Authority interpreted two similar provisions of the Act consistently
does not, however, demonstrate that either interpretation is correct.
We, of course, express no view as to whether different considerations
uniquely applicable to proceedings before the Authority might justify
the FLRA's interpretation of Section 7131(c)." 114 LRRM at 3397, n. 9.
The Authority's regulations remain unchanged, and I am bound by its
interpretation of section 7131(c). Respondent's arguments that 5 C.F.R.
Section 2429.13 is not in accordance with law and constitutes an
unauthorized assumption by the FLRA of a major policy decision properly
made by Congress are more properly addressed by the Authority and the
courts. Respondent's position that Judge Chaitovitz abused his
discretion when he determined that Palacio was a necessary witness and
that determination should have been subject to a "reasonableness" test
are without merit for the reasons set out above. The Authority has
specifically rejected a "reasonableness test," and Respondent may
properly obtain review of Judge Chaitovitz's exercise of discretion in
Case No. 5-CA-30322.
It is noted that Palacio's participation as a witness subpenaed at
the request of the General Counsel also brought into operation section
2429.14 of the regulations which also references section 2429.13.
Section 2429.14 provides as follows:
Section 2429.14 Witness fees.
(a) Witnesses (whether appearing voluntarily, or under a
subpena) shall be paid the fee and mileage allowances which are
paid subpenaed witnesses in the courts of the United States:
Provided, That any witness who is employed by the Federal
Government shall not be entitled to receive witness fees in
addition to compensation received pursuant to Section 2429.13.
The statutory basis for section 2429.14 of the Regulations is section
7132 of the Statute /9/ which authorizes the Authority and its designees
to issue subpenas requiring the attendance and testimony of witnesses.
It provides that "(c) Witnesses (whether appearing voluntarily or under
subpena) shall be paid the same fee and mileage allowances which are
paid subpenaed witnesses in the courts of the United States." 28 U.S.C.
Section 1821 governs the payment of fees, per diem, and mileage to
witnesses in the courts of the United States. In general, witness fees
and mileage are paid by the party at whose instance the witness appears,
subject to the court's discretion to assess such expenses against a
party as part of the taxable costs of the suit. With regard to
witnesses who are employees of the United States, however, 5 U.S.C.
Section 5751 specifically provides the procedure for the payment of the
travel expenses of a witness who is summoned to testify on behalf of the
United States, or to testify in his official capacity or produce records
on behalf of a party other than the United States. /10/ 5 U.S.C.
Section 5751(a) provides as follows:
Section 5751. Travel expenses of witnesses
(a) Under such regulations as the Attorney General may
prescribe an employee as defined by section 205 of this title
(except an individual whose pay is disbursed by the Secretary of
the Senate or the Clerk of the House of Representatives) summoned,
or assigned by his agency, to testify or produce official records
on behalf of the United States is entitled to travel expenses
under subchapter I of this chapter. If the case involves the
activity in connection with which he is employed, the travel
expenses are paid from the appropriation otherwise available for
travel expenses of the employee under proper certification by a
certifying official of the agency concerned. If the case does not
involve its activity, the employing agency may advance or pay the
travel expenses of the employee, and later obtain reimbursement
from the agency properly chargeable with the travel expenses.
The implementing regulations of the Attorney General are contained in
28 C.F.R. Part 21 (1984) and provide, in part, that an employee
qualifying for the payment of travel expenses shall be paid at the rate
and in the amounts allowable for other purposes under the provisions of
5 U.S.C. Section 5701-5708. (11) See 28 C.F.R. Section 21.1(c) (1984).
In order for the employing agency to be chargeable for the employee's
travel expenses under section 5751(a), it must be found that the
employee was "summoned, or assigned by his agency to testify . . . on
behalf of the United States" and "the case involves the activity in
connection with which he is employed." Cf. B-160120, 46 Comp. Gen. 613
(1967). It is unnecessary to determine whether section 5751(a) would
apply in this instance as the complaint does not allege a specific
violation of section 7132(c) of the Statute and the General Counsel has
made no contention that Respondent was obligated to pay Palacio's travel
expenses pursuant to 5 U.S.C. Section 5751(a) or any other provision of
law other than section 7131(c).
Since the Authority has ruled that the obligation of an agency under
section 7131(c) of the Statute encompasses the payment of travel
expenses and per diem allowances, I am constrained to conclude that the
Respondent failed to comply with section 7131(c) by its refusal to
provide travel and per diem expenses to the employee and thereby
violated Section 7116 (a)(1) and (8) of the Statute, as alleged.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue 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 Air Force,
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio shall:
1. Cease and desist from:
(a) Denying official time, transportation, and per diem
expenses to an employee to participate in a hearing before the
Federal Labor Relations Authority when such participation has been
deemed necessary by any Administrative Law Judge, Regional
Director, or other 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 Statute.
(a) Provide official time to Paul Palacio for his participation
in an unfair labor practice hearing before the Authority in Case
No. 5-CA-30322 from March 12 through March 14, 1984, and make him
whole for annual leave utilized for that purpose; and, in
addition, upon submission of a properly documented voucher,
reimburse him for transportation and per diem expenses incurred.
(b) Post at its facilities at Wright-Patterson Air Force Base
and Kelly Air Force Base copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by an authorized
official 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 Respondent shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(c) Pursuant to 5 C.F.R. section 2423.30 notify the Regional
Director, Region Five, Federal Labor Relations Authority, Chicago,
Illinois, in writing, within 30 days from the date of this order,
as to what steps have been taken to comply herewith.
/s/ Garvin Lee Oliver
Administrative Law Judge
Dated: February 27, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) The Macon subpena was subsequently revoked by the General
Counsel. Mr. Palacio was not present for the Macon phase of the hearing
either as a witness or as representative of the Charging Party.
(2) At the same time, Judge Chaitovitz denied a motion filed by
Palacio that Respondent pay his travel and per diem expenses in Oklahoma
City and Macon to act as the Charging Party's representative. Palacio
represented the Charging Party in Dayton and Oklahoma City. The
Charging Party did not enter an appearance in Macon.
(3) Due to the fact that Palacio was under subpena and required to
leave Wright-Patterson AFB, he had delegated his position as the Union
representative at Headquarters, AFLC, to another Union official and,
therefore, was no longer on 100% official time.
(4) Although it was originally anticipated that the hearing would
take two weeks, the time was drastically reduced due to various
stipulations and the General Counsel's withdrawal of allegations against
12 of the 31 supervisors named from Tinker, Kelly, and Hill AFBs.
(5) Palacio was on official time from March 16, 1984 to April 26,
1984 as chief negotiator for the Union during the negotiations of the
master labor agreement at Tinker Air Force Base, Oklahoma.
(6) 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.
(7) Sections 2429.13 provides: Section 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.
(8) Section 7116(a)(1) and (8) provides:
(a) For the purpose of this chapter, it shall be unfair labor
practice for an agency -
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(9) Section 7132 provides, in relevant part:
(a) Any member of the Authority, the General Counsel, or the
Panel, any administrative law judge appointed by the Authority
under section 3105 of this title, and any employee of the
Authority designated by the Authority may --
(1) issue subpenas requiring the attendance and testimony of
witnesses and the production of of documentary or other evidence
from any place in the United States(.)
. . . .
(c) Witnesses (whether appearing voluntarily or under subpena)
shall be paid the same fee and mileage allowances which are paid
subpenaed witnesses in the courts of the United States.
(10) 5 U.S.C. Section 6322 provides that an employee summoned, or
assigned by his agency, to testify on behalf of the United States, or to
testify in his official capacity for a party other than the United
States "is performing official duty during the period. . . ." See also 5
C.F.R. Section 1201.33 (1984), which provides that Federal employee
witnesses testifying before the Merit System Protection Board at the
request of the presiding officer are in official duty status.
(11) 5 U.S.C. Sections 5702-5708 relate to the payment and
administration of travel expenses and per diem allowances for employees
acting in an official capacity.
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT deny official time to an employee to participate in a
hearing before the Federal Labor Relations Authority when such
participation has been deemed necessary by any Administrative Law Judge,
Regional Director, or other designated agent of the Authority.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide official time to Paul Palacio for his participation
in an unfair labor practice hearing before the Authority in Case No.
5-CA-30322 from March 12 through March 14, 1984, and make him whole for
annual leave utilized for that purpose; and, in addition, upon
submission of a properly documented voucher, reimburse him 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 this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region Five,
whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago,
Illinois 60604 and whose telephone number is: (312) 353-6306.