Justice Department Federal Prison System and AFGE Council of Prison Locals (Authority decision, December 16, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An Authority field attorney directed prison employee Michael Musky to attend a meeting to prepare for an unfair labor practice hearing. The Federal Prison System denied his request for official time, travel, and per diem. The Authority held that its designated agent could determine when an employee’s preparation was necessary and that the denial violated the labor statute. It ordered official time, restoration of any annual leave used, documented travel reimbursement, and a posted notice.

Decision snapshot

• Authority: 5 U.S.C. § 7116(a)(1).
• Outcome: Unfair labor practice found; make-whole and notice relief ordered.
• Key point: Necessary preparation with an Authority field attorney qualified for official time and related expenses.

Full text (FLRA public release)

[ v10 p662 ]

10:0662(109)CA

The decision of the Authority follows:

10 FLRA No. 109

U.S. DEPARTMENT OF JUSTICE
FEDERAL PRISON SYSTEM
Respondent

and

COUNCIL OF PRISON LOCALS,
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party

Case No. 3-CA-2687

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts and briefs submitted by the Respondent and the General Counsel, the Authority finds:

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to provide official time to employee Michael Musky to participate in the pre-hearing preparation phase of an unfair labor practice proceeding before the Authority (Case No. 3-CA-2000).

Musky is an employee of the Respondent. He had been instructed by an Authority Field Attorney to meet with her on June 24, 1981 for the purpose of pre-hearing preparation involving Case No. 3-CA-2000. The employee requested official time, as well as travel and per diem expenses, in order to attend the meeting. The Respondent denied his request as well as a written request on June 12, 1981 by the Authority Field Attorney.

In Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 10 FLRA No. 3 (1982), the Authority determined that an agency violated section 7116(a)(1) and (8) of the Statute by denying the request of an Authority Field Attorney to have employees made available on official time, including travel and per diem expenses, in order to participate in preparation for formal hearings in unfair labor practice proceedings. In so concluding, the Authority noted that Field Attorneys come within the definition of "other agent(s) of the Authority designated by the Authority" as prescribed by section 7131(c) of the Statute and, as such, are authorized to determine when it is necessary for an employee to participate in the formal preparations for an unfair labor practice proceeding. In the instant case, the June 12, 1981 letter from the Authority's Field Attorney to the Respondent clearly established that such a determination had been made. Accordingly, the Respondent's denial of official time and related travel and per diem expenses for Musky violated section 7131(c) and therefore constituted a violation of section 7116(a)(1) and (8) of the Statute.

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 U.S. Department of Justice, Federal Prison System, shall:

1. Cease and desist from:

(a) Denying official time to an employee for attendance at a meeting with a designated agent 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) Provide employee Michael Musky official time for his meeting with a Field Attorney of the Federal Labor Relations Authority on June 24, 1981 and make him whole for any annual leave utilized for that purpose, and, upon submission of a properly documented voucher, reimburse him for transportation and per diem expenses incurred.

(b) Post at its facilities in its Lewisburg, Pennsylvania Prison 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. The Respondent shall take reasonable steps to insure that such Notices are not altered, defaced or covered by any other material.

(c) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region III, 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 16, 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 deny official time to an employee for attendance at a meeting with a designated agent 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 employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL provide employee Michael Musky official time for his meeting with a Field Attorney of the Federal Labor Relations Authority on June 24, 1981 and make him whole for any annual leave utilized for that purpose, and, upon submission of a properly documented voucher, reimburse him for transportation and per diem expenses incurred. (Agency)

Dated: . . . By: (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of this posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority whose address is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8452.