Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Dallas, Texas and National Treasury Employees Union, Chapter 121 (Authority decision, June 11, 1982)

Final FLRA decision. The Authority adopted the judge's unfair labor practice finding and issued a remedy. Under 5 U.S.C. § 7123(a), an aggrieved party may seek judicial review of a final Authority order within 60 days of issuance.

Plain-English summary

A union chapter president used an hour of annual leave to attend midterm negotiations with the Bureau of Alcohol, Tobacco and Firearms about typewriter use. The agency refused to grant official time, arguing that the statute did not require it for midterm bargaining. The Authority adopted the judge's finding that the refusal violated federal labor law. It ordered the agency to provide the official time retroactively, restore the annual leave she used, and post a notice.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), (8), 7118, and 7131(a).
• Outcome: The unfair labor practice finding was adopted; official time and used annual leave were restored.
• Key point: A union representative was entitled to official time for midterm negotiations.

Full text (FLRA public release)

[ 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.