Headquarters, 2750th Air Base Wing, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, Local 1138, AFL-CIO (Authority decision, August 15, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of the unfair labor practice complaint in this transferred case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

An Air Force employee who was also an AFGE Local 1138 officer prepared comments for a senior official about personnel rules. The base stopped its word processing center from making a final typed copy after managers concluded the material was union business. The administrative law judge found that the employee had already delivered her response and that the union had no established right to use the base's typing equipment. He also found no evidence of discrimination or harassment. With no exceptions filed, the Authority adopted the judge's findings and dismissed the complaint.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1).
• Outcome: Judge's dismissal adopted; unfair labor practice complaint dismissed.
• Key point: The record showed no practice allowing union use of the base's typing facilities.

Full text (FLRA public release)

[ v01 p865 ]

01:0865(99)CA

The decision of the Authority follows:

1 FLRA No. 99

HEADQUARTERS,
2750TH AIR BASE WING,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138, AFL-CIO
Complainant

Assistant Secretary
Case No. 53-10533(CA)

DECISION AND ORDER

ON MARCH 1, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 53-10533(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., AUGUST 15, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

FRED HUSTAD, ESQUIRE

ATTORNEY ADVISOR

OFFICE OF THE STAFF JUDGE ADVOCATE

2750TH AIR BASE WING JA

WRIGHT-PATTERSON AIR FORCE

BASE, OHIO 45433

FOR THE RESPONDENT

MR. ROBERT STURWOLD

P.O. BOX 33209

WRIGHT-PATTERSON AIR FORCE

BASE, OHIO 45433

ON BRIEF: MR. HENRY A. WEBB, PRESIDENT

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1138

P.O. BOX 1041

FAIRBORN, OHIO 45324

FOR THE COMPLAINANT

BEFORE: WILLIAM B. DEVANEY

ADMINISTRATIVE LAW JUDGE

DECISION AND ORDER

STATEMENT OF THE CASE

THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH ALL PROCEEDINGS
IN THIS MATTER WERE CONDUCTED BEFORE THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS, UNITED STATES DEPARTMENT OF LABOR, THIS
DECISION PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER,
VOL. 44, NO. 1, JANUARY 2, 1979, IS ISSUED IN THE NAME OF THE AUTHORITY
AND, IN ACCORDANCE WITH SECTION 2400.2 (5 C.F.R. 2400.2) OF THE
TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE AUTHORITY IN
ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL REGULATIONS, PART
201, ET SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL BE SUBSTITUTED
WHEREVER THE WORD "ASSISTANT SECRETARY" APPEAR IN THE RULES AND
REGULATIONS OF THE ASSISTANT SECRETARY.

THIS MATTER WAS INITIATED BY A CHARGE FILED ON MARCH 30, 1978; A
COMPLAINT, FILED ON APRIL 28, 1978 (ASST. SEC. EXH. 1), WHICH ALLEGED
VIOLATION OF SECTIONS 19()(1) AND (2) OF THE ORDER; AN AMENDED
COMPLAINT, FILED ON AUGUST 7, 1978 (ASST. SEC. EXH. 2), WHICH ALLEGED A
VIOLATION OF SECTION 19()(1); AND NOTICE OF HEARING ON AMENDED
COMPLAINT, DATED AUGUST 25, 1978 (ASST. SEC. EXH. E), PURSUANT TO WHICH
A HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON NOVEMBER 9, 1978, AT
WRIGHT-PATTERSON AIR FORCE BASE, OHIO. ALL PARTIES WERE REPRESENTED AT
THE HEARING, WERE AFFORDED FULL OPPORTUNITY TO EXAMINE AND CROSS-EXAMINE
WITNESSES, TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED, AND TO
PRESENT ORAL ARGUMENT. AT THE CLOSE OF THE HEARING, DECEMBER 15, 1978,
WAS FIXED AS THE DATE FOR MAILING BRIEFS AND BRIEFS, TIMELY MAILED WERE
RECEIVED FROM EACH PARTY ON DECEMBER 18, 1978, AND HAVE BEEN CAREFULLY
CONSIDERED.

UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND ORDER. /2/

FINDINGS

1. COLONEL DAVID HALL IS COMPTROLLER FOR THE AIR FORCE LOGISTICS
   COMMAND. ON, OR ABOUT, FEBRUARY 17, 1978, COL. HALL SENT A MEMORANDUM
   TO MS. BETTY CARROLL (JT. EXH. 4) WHICH SAID,

"I WOULD APPRECIATE HAVING A RESPONSE FROM YOU."

THIS, IN TURN, REFERRED TO A MEMORANDUM, ALSO DATED FEBRUARY 17,
1978, AND ATTACHED TO THE MEMORANDUM TO MS. CARROLL, ENTITLED "CIVIL
SERVICE COMMISSION RULES AND GUIDELINES" AND WHICH RECITED THAT "CS AND
DF WILL BE MEETING IN EARLY MARCH TO DISCUSS CIVIL SERVICE COMMISSION
RULES AND GUIDELINES AND THOSE CHANGES WE (AFLC) DESIRE: A. WHICH
CURRENTLY ADVERSELY IMPACT OUR WORKFORCE AND B. THOSE THAT RESTRICT OR
PROHIBIT US (AFLC) FROM DOING THINGS WE DESIRE TO DO". THE MEMORANDUM
REQUESTED THAT THE ADDRESSEES "DISCUSS WITH YOUR PEOPLE AND PROVIDE YOUR
INPUTS AND CONCERN TO ME (COL. HALL) PRIOR TO MARCH 1, 1978."

2. COL. HALL PERSONALLY SPOKE TO MS. CARROLL ON, OR ABOUT, FEBRUARY
   22, 1978, AND "ASKED MRS. CARROLL FOR HER THOUGHTS." MS. CARROLL SAID
   SHE WOULD BE HAPPY TO RESPOND.

3. MS. CARROLL IS A COMPUTER SPECIALIST, GS-11, AND IS ALSO A VICE
   PRESIDENT OF COMPLAINANT, LOCAL 1138. COL. HALL TESTIFIED THAT HE "DID
   NOT GIVE SERIOUS THOUGHT TO THE FACT THAT BETTY CARROLL WAS A UNION
   OFFICER. I ASKED HER TO DO THE ASSIGNMENT BASED ON HER APPRECIATION OF
   THE PROBLEM AND I ALSO FELT THAT SHE COULD DO A GOOD JOB."

4. ON THE OTHER HAND, COL. HALL STATED THAT HE DID NOT ASK FOR A
   UNION POSITION OR POLICY PAPER AND THAT HE

". . . DID NOT EXPECT TO GET A UNION POSITION OR A UNION POLICY
PAPER." (TR. 70).

5. COL. HALL CALLED MS. CARROLL ON WEDNESDAY, FEBRUARY 22 AND ON
   FRIDAY, FEBRUARY 24, 1978, COL. HALL WAS IN THE BRANCH TO SEE THE BRANCH
   CHIEF AND STOPPED AT MS. CARROLL'S DESK TO ADVISE HER THAT HE WAS GOING
   TO BE OUT OF TOWN TUESDAY AND WEDNESDAY OF THE FOLLOWING WEEK AND THAT
   HE HAD A DEADLINE OF MARCH 1ST (THE FOLLOWING WEDNESDAY) AND ASKED IF
   MS. CARROLL COULD GET THE MATERIAL TO HIM BY MONDAY EVENING. MS.
   CARROLL ASSURED HIM THAT SHE WOULD CERTAINLY TRY.

6. AFTER BEING APPRISED BY COL. HALL THAT HE WOULD LIKE TO HAVE HER
   RESPONSE BY MONDAY EVENING, MS. CARROLL PUT ASIDE HER OTHER WORK AND
   TOLD HER BRANCH CHIEF THAT SHE WAS STARTING A "CRASH PROGRAM" FOR COL.
   HALL. MS. CARROLL GOT ALL THE INFORMATION WRITTEN UP ON FRIDAY AND
   COMP. EXH. 4, ENTITLED "PERSONNEL PROBLEMS IN DATA AUTOMATION" MAY HAVE
   BEEN TYPED ON FRIDAY, FEBRUARY 24. ON SUNDAY, FEBRUARY 26, 1978, MS.
   CARROLL, USING HER ACCESS CODE, FROM HER HOME, DICTATED HER REPORT INTO
   RESPONDENT'S WORD PROCESSING "TANK" AND ON MONDAY, FEBRUARY 27, 1978,
   MS. CARROLL RECEIVED A DRAFT WHICH SHE CORRECTED, EDITED AND MODIFIED.
   MS. CARROLL MADE XEROX COPIES OF THE REVISED DRAFT AND RETURNED THE
   REVISED DRAFT WITH A REQUEST FOR FINAL COPY TO THE WORD PROCESSING
   CENTER AT 4:05 P.M. ON FEBRUARY 27, 1978, WHICH REQUESTED THE FINAL COPY
   BY 5:00 P.M. ON FEBRUARY 27, 1978 (COMP. EXH. 1). EARLIER ON FEBRUARY
   27, MS. CARROLL PREPARED A LETTER OF TRANSMITTAL WHICH WAS TYPED BY THE
   WORD PROCESSING CENTER AND WAS SIGNED BY MS. CARROLL (JT. EXH. 2).

7. MS. CARROLL, ALTHOUGH SHE HAD RETURNED THE DRAFT TO THE WORD
   PROCESSING CENTER AT 4:05, ON FEBRUARY 27, WITH A REQUEST FOR FINAL COPY
   THAT DAY, WROTE IN LONGHAND A MEMORANDUM TO COL. HALL (COMP. EXH. 2) TO
   WHICH SHE ATTACHED A XEROX COPY OF HER REVISED DRAFT (COMP. EXH 3), A
   COPY OF "PERSONNEL PROBLEMS IN DATA AUTOMATION" (COMP. EXH. 4) (REFERRED
   TO IN HER LETTER OF TRANSMITTAL AS "PROBLEM DEFINITION WORKSHEET") AND
   "A HANDWRITTEN RESPONSE TO PACER SPAN WHICH DON COOK WROTE", /3/ WHICH
   SHE DELIVERED TO COL. HALL IN HIS OFFICE LATE IN THE AFTERNOON ON
   FEBRUARY 27, 1978.

8. SOMETIME ON MONDAY, FEBRUARY 27, MRS. DORIS WARNER, SUPERVISOR OF
   RESPONDENT'S WORD PROCESSING CENTER, BECAME AWARD OF THE MATERIAL WHICH
   MS. CARROLL HAD IN THE WORD PROCESSING CENTER. ALTHOUGH THE PRECISE
   CHRONOLOGY OF EVENTS IS SOMEWHAT UNCERTAIN, IT APPEARS REASONABLY
   CERTAIN THAT THE DOCUMENT WHICH FIRST FOCUSED ATTENTION ON THE WORK
   BEING PROCESSED FOR MS. CARROLL WAS HER LETTER OF TRANSMITTAL (JT. EXH.
   2) WHICH STATED, IN PART, "I HAVE DEFINED THE PERSONNEL PROBLEMS
   CURRENTLY FACING DATA AUTOMATION WHICH ARE OF MAJOR CONCERN TO MEMBERS
   OF OUR BARGAINING UNIT." IN ANY EVENT, THE MATERIAL WHICH HAD BEEN TYPED
   IN DRAFT (COMP. EXH. 3) AND MS. CARROLL'S LETTER OF TRANSMITTAL (JT.
   EXH. 2) WAS CALLED TO THE ATTENTION OF MR. LEROY BROWNING, AN EMPLOYEE
   RELATIONS SPECIALIST IN CIVILIAN PERSONNEL ON FEBRUARY 27, 1978, AND TO
   CAPTAIN GARY MCCOY, EXECUTIVE OFFICER FOR THE COMPTROLLER, ON FEBRUARY
   28, 1978. CAPT. MCCOY, AFTER REVIEWING THE MATERIAL CONCLUDED THAT THE
   MATERIAL "SEEMED TO BE ON UNION BUSINESS" AND SO ADVISED MR. BROWNING.
   MR. JAMES R. GEORGE, LABOR RELATIONS OFFICER FOR THE 2750TH AIR BASE
   WING, HAD BEEN ADVISED BY MR. BROWNING OF THE MATTER; MR. GEORGE
   REVIEWED THE MATERIAL AND CONCLUDED THAT "IT WAS ON ITS FACE UNION
   MATERIAL"; MR. GEORGE ASKED MR. BROWNING TO INFORM CAPT. MCCOY THAT
   THEY WERE IN AGREEMENT WITH HIS DECISION THAT THIS WAS UNION BUSINESS
   AND THAT USE OF RESPONDENT'S FACILITIES FOR SUCH PURPOSE WAS IMPROPER;
   AND CAPT. MCCOY INSTRUCTED MRS. WARNER ON FEBRUARY 28, 1978, THAT IT WAS
   NOT TO BE COMPLETED.

9. ON FEBRUARY 28, 1978, MR. GEORGE CALLED MR. HENRY WEBB, PRESIDENT
   OF LOCAL 1138, AND TOLD HIM THAT "WE HAD ANOTHER INCIDENT OR PROBLEM OF
   A UNION VICE-PRESIDENT TRYING TO USE ONE OF OUR WORD PROCESSING CENTERS
   TO HAVE TYPED UNION BUSINESS." MR. GEORGE ASKED MR. WEBB TO MEET WITH
   HIM ON MARCH 1, 1978. MR. GEORGE TOLD MR. WEBB THAT HE "WOULD LIKE FOR
   HIM TO CORRECT THE PROBLEM INTERNALLY . . . THAT IF WE WERE NOT ABLE TO
   CORRECT THAT PROBLEM THAT MANAGEMENT WOULD HAVE TO CONSIDER FILING AN
   EMPLOYER GRIEVANCE ALLEGING A VIOLATION OF OUR CONTRACT."

10. MRS. ELIZABETH CORLESS, FORMERLY ELIZABETH FELLOWS, A LABOR
    RELATIONS SPECIALIST, MET WITH MR. WEBB ON MARCH 1, 1978, BECAUSE MR.
    GEORGE WAS UNABLE TO BE PRESENT. MRS. CORLESS TOLD MR. WEBB THAT THE
    LABOR RELATIONS OFFICE HAD CONCLUDED THAT THE MATERIAL WHICH MS. CARROLL
    HAD SUBMITTED TO THE WORD PROCESSING UNIT WAS UNION MATERIAL; THAT THE
    CONTRACT (JT. EXH. 1) DID NOT PROVIDE FOR UNION USE OF TYPEWRITING
    FACILITIES; AND MR. WEBB REQUESTED, AND WAS GIVEN, A COPY OF THE
    MATERIAL BECAUSE "THERE WAS TO BE A UNION MEETING (THAT NIGHT) AND HE
    WANTED TO BRING THIS MATERIAL TO TALK ABOUT IT WITH BETTY CARROLL AND
    DON COOK".

11. AGAIN WHILE THE PRECISE CHRONOLOGY IS SOMEWHAT UNCERTAIN, IT IS
    CLEAR THAT MS. CARROLL AND MR. COOK, THE SENIOR VICE PRESIDENT OF LOCAL
    1138, MET WITH CAPT. MCCOY; THAT CAPT. MCCOY, WHEN SHOWN COL. HALL'S
    MEMORANDUM TO MS. CARROLL (JT. EXH 4), STATED, IN EFFECT, THAT THE
    MEMORANDUM (LETTER) DID NOT CONSTITUTE AUTHORIZATION TO USE RESPONDENT'S
    TYPING FACILITIES AND CAPT. MCCOY REFUSED TO PERMIT THE USE OF
    RESPONDENT'S WORD PROCESSING CENTER FOR THE TYPING OF A FINAL COPY OF
    THE MATERIAL FOR MS. CARROLL. /4/

12. MR. GEORGE STATED THAT RESPONDENT NEVER PERMITTED THE USE OF ITS
    TYPING FACILITIES FOR INTERNAL UNION MATTERS WHEN IT WAS AWARE OF IT;
    AND THERE HAD BEEN A PRIOR INSTANCE (RESP. EXH. 1) WHEN MS. CARROLL HAD,
    WITHOUT AUTHORIZATION, USED RESPONDENT'S TYPING FACILITIES AND
    RESPONDENT HAD CALLED THIS MATTER TO THE ATTENTION OF LOCAL 1138'S
    OFFICIALS.

13. NOT ONLY DID MS. CARROLL IN HER LETTER OF TRANSMITTAL
    SPECIFICALLY REFER TO "PERSONNEL PROBLEMS . . . WHICH ARE OF MAJOR
    CONCERN TO MEMBERS OF OUR BARGAINING UNIT", BUT SHE STATED THAT THE BULK
    OF THE INFORMATION IN HER NARRATIVE STATEMENT (COMP. EXH. 3, JT. EXH.
    2-A) WAS IDENTICAL, OR VIRTUALLY IDENTICAL, TO POSITIONS REPEATEDLY
    TAKEN BY THE UNION IN THE PAST ABOUT THE SAME MATTERS.

14. COL. HALL DID NOT DISCUSS THE FORM THAT MS. CARROLL'S RESPONSE
    SHOULD TAKE AND MS. CARROLL READILY ADMITTED THAT COL. HALL DID NOT ASK
    THAT HER RESPONSE BE TYPED AND THAT COL. HALL GAVE HER NO AUTHORIZATION
    TO USE THE WORD PROCESSING CENTER. INDEED, BOTH COL. HALL AND MS.
    CARROLL STATED THAT THE MATTER WAS NOT DISCUSSED.

CONCLUSIONS

COMPLAINANT'S POSITION QUITE SIMPLY IS THAT COL. HALL REQUESTED MS.
CARROLL, AS AN EMPLOYEE, TO PROVIDE HIM WITH HER INPUT AND THAT
RESPONDENT, THROUGH ITS LABOR RELATIONS OFFICE, INTERFERRED WITH AND
PREVENTED HER COMPLETION OF THIS ASSIGNED DUTY AS AN EMPLOYEE BECAUSE
SHE WAS, ALSO A UNION OFFICER, IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER. FOR THE REASONS SET FORTH HEREINAFTER, THE RECORD DOES NOT
SUPPORT COMPLAINANT'S POSITION NOR HAS COMPLAINANT SHOWN ANY BASIS FOR A
FINDING THAT RESPONDENT VIOLATED SECTION 19(A)(1) OF THE ORDER.

FIRST, AS TO SUBMISSION OF HER "INPUT", AS REQUESTED BY COL. HALL, IT
IS CLEAR THAT MS. CARROLL DID SO. RESPONDENT DID NOT INTERFERE IN ANY
MANNER WITH MS. CARROLL'S PREPARATION OF THE MATERIAL. TO THE CONTRARY,
AFTER SHE INFORMED HER BRANCH CHIEF THAT SHE WAS STARTING A "CRASH
PROGRAM" FOR COL. HALL, SHE WAS PERMITTED TO PURSUE THE JOB AND GOT ALL
THE INFORMATION WRITTEN UP ON FRIDAY, FEBRUARY 24 AND SHE DELIVERED TO
COL. HALL ON MONDAY, FEBRUARY 27, 1978, HER COMPLETE RESPONSE, ALBEIT
THAT HER SUBMISSION WAS IN PART HANDWRITTEN AND IN PART A CORRECTED AND
MODIFIED TYPEWRITTEN DRAFT.

SECOND, THE SOLE ISSUE IN DISPUTE IS WHETHER RESPONDENT VIOLATED
SECTION 19(A)(1) BY ITS REFUSAL TO PERMIT A FINAL COPY OF MS. CARROLL'S
NARRATIVE STATEMENT, WHICH IT DETERMINED TO CONSTITUTED UNION BUSINESS,
TO BE MADE FOR MS. CARROLL BY ITS WORD PROCESSING CENTER. OF COURSE,
RESPONDENT ASSERTS THAT, BECAUSE MS. CARROLL'S RESPONSE CONSTITUTED
UNION BUSINESS, THE USE OF ITS TYPING FACILITIES FOR SUCH PURPOSE BY MS.
CARROLL WAS IMPROPER; BUT, TO THE EXTENT THAT MS. CARROLL HAD OBTAINED
TYPED MATERIAL FROM THE WORD PROCESSING CENTER, HOWEVER UNAUTHORIZED
SUCH USE MAY HAVE BEEN, IT CAN NOT BE SAID, UNDER ANY VIEW, THAT
RESPONDENT VIOLATED SECTION 19(A)(1) AS TO MATERIAL ACTUALLY RECEIVED.

BOTH PARTIES HAVE PROCEEDED ON AN ERRONEOUS ASSUMPTION, NAMELY, THAT
COL. HALL COULD REQUEST THE INDIVIDUAL VIEWS OF A MEMBER OF THE
BARGAINING UNIT ON A MATTER AFFECTING THE BARGAINING UNIT. IN FEDERAL
AVIATION ADMINISTRATION, SPRINGFIELD TOWER, SPRINGFIELD, MISSOURI,
A/SLMR 843, 7 A/SLMR 429 (1977), THE ASSISTANT SECRETARY STATED, IN
PART, AS FOLLOWS:

"I FIND THAT THE RESPONDENT'S ACTION OF DEALING DIRECTLY WITH AND
SOLICITING THE VIEWS OF A

UNIT EMPLOYEE CONCERNING A NEGOTIABLE ITEM WHICH WAS CURRENTLY BEING
NEGOTIATED CONSTITUTED AN

IMPROPER BYPASS AND UNDERMINING OF THE STATUS OF ITS EMPLOYEES'
EXCLUSIVE REPRESENTATIVE IN

VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER." (7 A/SLMR AT
431).

ALTHOUGH I AM AWARE THAT FEDERAL AVIATION ADMINISTRATION, SUPRA, WAS
CONDITIONED ON THE FACT THAT THE ITEM THERE INVOLVED WAS "CURRENTLY
BEING NEGOTIATED" AND MAY, FOR THIS REASON BE DISTINGUISHED;
NEVERTHELESS, THE THRUST OF NUMEROUS DECISION OF THE ASSISTANT SECRETARY
HAS BEEN THAT ONCE AN EXCLUSIVE BARGAINING REPRESENTATIVE HAS BEEN
DESIGNATED, THE ORDER IMPOSES AN OBLIGATION ON THE AGENCY, OR ACTIVITY,
TO DEAL WITH SUCH REPRESENTATIVE CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING WORKING CONDITIONS OF
ALL UNIT EMPLOYEES AND THE CORRELATIVE DUTY NOT TO TREAT WITH OTHERS.
SEE, FOR EXAMPLE, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA),
WASHINGTON, D.C., A/SLMR 457, 4 A/SLMR 806 (1974) AND CASES CITED
THEREIN. CLEARLY, THE MATTER ON WHICH COL. HALL SOUGHT MS. CARROLL'S
RESPONSE INVOLVED PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS
AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES. INDEED, MS. CARROLL
STATED THAT THESE MATTERS HAD BEEN THE SUBJECT OF PRIOR DISCUSSIONS WITH
THE UNION AND WERE OF CONTINUING INTEREST AND CONCERN TO THE UNION.

OF COURSE, THIS PROBLEM WAS AVOIDED HERE FOR THE REASONS THAT: A)
COL. HALL MADE HIS REQUEST TO A VICE PRESIDENT OF COMPLAINANT; AND B)
MS. CARROLL'S RESPONSE REFLECTED THE POSITION OF COMPLAINANT. THAT MS.
CARROLL RESPONDED ON BEHALF OF THE UNION WAS EMPHASIZED BY THE FACT THAT
SHE ALSO ATTACHED A RESPONSE WRITTEN BY DON COOK, THE SENIOR VICE
PRESIDENT OF LOCAL 1138.

IF MS. CARROLL HAD RESPONDED AS AN INDIVIDUAL EMPLOYEE, ON MATTERS
INVOLVING PERSONNEL POLICIES AND PRACTICES OF OTHER MATTERS AFFECTING
WORKING CONDITIONS OF UNIT EMPLOYEES, SHE WOULD HAVE ACTED PURSUANT TO
NO RIGHT PROTECTED BY THE ORDER. TO THE CONTRARY, THE ORDER IMPOSES AN
OBLIGATION TO DEAL WITH THE EXCLUSIVE REPRESENTATIVE AND THE CORRELATIVE
DUTY NOT TO DEAL WITH ANY ONE EXCEPT THE EXCLUSIVE REPRESENTATIVE.

RESPONDENT DETERMINED THAT MS. CARROLL'S RESPONSE, ON ITS FACE,
CONSTITUTED UNION BUSINESS AND FOR THIS REASON REFUSED TO PERMIT THE
RESPONSE TO BE TYPED ON ITS EQUIPMENT. THE FACT THAT MS. CARROLL HAD A
DRAFT TYPED BEFORE SUCH UTILIZATION WAS DETECTED BY RESPONDENT CREATED
NO AUTHORIZATION FOR TYPING THE FINAL COPY. THE COLLECTIVE BARGAINING
AGREEMENT CLEARLY DOES NOT AUTHORIZE UNION USE OF RESPONDENT'S TYPING
FACILITIES AND THE RECORD IS CLEAR THAT RESPONDENT HAS NEVER AUTHORIZED,
OR KNOWINGLY PERMITTED, SUCH USE OF ITS FACILITIES. AS NOTED IN U.S.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS,
DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR 1034(1978) AND IN INTERNAL
REVENUE SERVICE, SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS,
LOUISIANA, CASE NO. 64-3843(CA) (1978), "THE USE OF AGENCY FACILITIES
AND EQUIPMENT BY A UNION IS A PRIVILEGE AND NOT A RIGHT". HERE, THERE
WAS NO PRACTICE OF ALLOWING THE UNION TO USE RESPONDENT'S TYPING
FACILITIES. INDEED, THE RECORD CLEARLY, AND AFFIRMATIVELY, SHOWS THAT
SUCH USE OF ITS TYPING FACILITIES WAS NEVER KNOWINGLY PERMITTED. WHEN
THE MATERIAL IN QUESTION CAME TO THE ATTENTION OF RESPONDENT, RESPONDENT
IMMEDIATELY INFORMED COMPLAINANT'S PRESIDENT, MR. WEBB, THAT "WE HAD
ANOTHER INCIDENT OR PROBLEM OF A UNION VICE PRESIDENT TRYING TO USE ONE
OF OUR WORD PROCESSING CENTERS TO HAVE TYPED UNION BUSINESS"; THAT
RESPONDENT "WOULD LIKE FOR HIM TO CORRECT THE PROBLEM INTERNALLY . . .
THAT IF WE WERE NOT ABLE TO CORRECT THAT PROBLEM THAT MANAGEMENT WOULD
HAVE TO CONSIDER FILING AN EMPLOYER GRIEVANCE ALLEGING A VIOLATION OF
OUR CONTRACT." RESPONDENT DID NOT VIOLATE ANY PROVISION OF THE ORDER BY
REFUSING TO PERMIT ITS TYPING FACILITIES TO BE USED TO TYPE MS.
CARROLL'S RESPONSE, WHICH IT DETERMINED TO CONSTITUTE UNION BUSINESS, A
DETERMINATION FULLY SUPPORTED BY THE RECORD. MOREOVER, EVEN MS. CARROLL
WERE RESPONDING AS AN INDIVIDUAL EMPLOYEE, RESPONDENT DID NOT VIOLATE
SECTION 19()(1) OF THE ORDER FOR THE REASON THAT THE ORDER IMPOSES A
DUTY ON RESPONDENT TO DEAL WITH THE EXCLUSIVE REPRESENTATIVE, AND NO
OTHER, AS TO MATTERS INVOLVING PERSONNEL POLICIES AND PRACTICES OR OTHER
MATTERS AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES.

FINALLY, THE RECORD IS DEVOID OF ANY EVIDENCE OF DISCRIMINATION OR
HARRASSMENT OF MS. CARROLL.

HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, THE
COMPLAINT HEREIN IS DISMISSED.

WILLIAM B. DEVANEY

ADMINISTRATIVE LAW JUDGE

DATED: 1 MAR 1979

WASHINGTON, D.C.

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.

/2/ RESPONDENT, ON JUNE 15, 1978, FILED A MOTION TO DISMISS THE
COMPLAINT, WHICH WAS NOT GRANTED BY THE REGIONAL ADMINISTRATOR; AND AT
THE HEARING RESPONDENT MOVED TO DISMISS THE AMENDED COMPLAINT.
NOTWITHSTANDING, THE SUBSTANTIAL MERIT OF RESPONDENT'S MOTION, FOR
REASONS STATED AT THE HEARING, RESPONDENT'S MOTION TO DISMISS WAS DENIED
AND THIS RULING IS REAFFIRMED.

/3/ MR. DONALD V. COOK IS A V.P. OF COMPLAINANT; SIGNED THE AMENDED
COMPLAINT AS "ACTING PRESIDENT" OF LOCAL 1138 (ASST. SEC. EXH. 2); BUT
HIS HANDWRITTEN RESPONSE TO WHICH MS. CARROLL REFERRED DOES NOT APPEAR
TO HAVE OFFERED AS AN EXHIBIT UNLESS THIS DOCUMENT WAS, IN REALITY, THE
HANDWRITTEN VERSION OF COMPLAINANT'S EXHIBIT 4.

/4/ AT SOME LATER TIME, MS. CARROLL'S DRAFT WAS TYPED IN FINAL FORM
AND WAS INTRODUCED AS JOINT EXHIBIT 2A; HOWEVER, COL. HALL WAS NOT
FURNISHED A COPY OF JOINT EXHIBIT 2A.