Headquarters, 2750th Air Base Wing, Wright-Patterson Air Force Base, Ohio (Respondent) and American Federation of Government Employees, Local 1138, AFL-CIO (Complainant) 



[ 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 EXHIB