Arkansas Army National Guard (Respondent) and National Federation of Federal Employees, Local 1671 (Complainant) 

 



[ v01 p877 ]
01:0877(100)CA
The decision of the Authority follows:


 1 FLRA No. 100
 
 ARKANSAS ARMY NATIONAL GUARD
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1671
 Complainant
 
                                            Assistant Secretary
                                            Case No. 64-4120(CA)
 
                            DECISION AND ORDER
 
    ON APRIL 17, 1979, ADMINISTRATIVE LAW JUDGE EVERETTE E. THOMAS ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
 FINDING THAT THE RESPONDENT HAD VIOLATED SECTION 19()(1) AND (6) OF
 EXECUTIVE ORDER 11491, AS AMENDED, AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
 ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.  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 THIS CASE, AND
 NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE ARKANSAS ARMY NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) PROHIBITING THE MEMBERS OF THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES FORM UTILIZING, WITHOUT THE REQUIREMENT OF PAYING UNITED
 STATES POSTAGE, THE INTERNAL MAIL DISTRIBUTION FACILITIES OF THE
 ARKANSAS ARMY NATIONAL GUARD, OR CHANGING OTHER LIKE MATTERS AFFECTING
 THE WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST MEETING AND
 CONFERRING WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
 1671.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ORDER:
 
    (A) POST AT ALL 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 THE
 ADJUTANT GENERAL OF THE ARKANSAS ARMY NATIONAL GUARD 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
 ALL EMPLOYEES ARE CUSTOMARILY POSTED.  THE ADJUTANT GENERAL SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (B) 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 HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 15, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 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 PROHIBIT MEMBERS OF THE NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES FORM UTILIZING, WITHOUT THE REQUIREMENT OF PAYING UNITED
 STATES POSTAGE, THE INTERNAL MAIL DISTRIBUTION FACILITIES OF THE
 ARKANSAS ARMY NATIONAL GUARD, OR CHANGE OTHER LIKE MATTERS AFFECTING
 WORKING CONDITIONS OF UNIT EMPLOYEES, WITHOUT FIRST MEETING AND
 CONFERRING WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
 1671.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OF COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
                                  . . .
 
                           (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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  DOWNTOWN POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.O.
 BOX 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS:  (214)
 767-4996.
 
    LTC JERRY P. RICHARDSON
 
    TECHNICIAN PERSONNEL OFFICER
 
    ARKANSAS ARMY NATIONAL GUARD
 
    NORTH LITTLE ROCK, ARKANSAS
 
    KAY L. MATTHEWS, ESQUIRE
 
    LITTLE ROCK, ARKANSAS /2/
 
                            FOR THE RESPONDENT
 
    ROBERT ENGLEHART, ESQUIRE
 
    NATIONAL FEDERATION OF
 
    FEDERAL EMPLOYEES
 
    WASHINGTON, D.C.
 
                            FOR THE COMPLAINANT
 
    BEFORE:  EVERETTE E. THOMAS
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           PRELIMINARY STATEMENT
 
    THIS CASE AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED, FOLLOWING A
 COMPLAINT FILED JULY 13, 1978 AND AMENDED ON NOVEMBER 4, 1978 BY THE
 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1671 (HEREINAFTER, THE
 "UNION"), AGAINST THE ARKANSAS ARMY NATIONAL GUARD (HEREINAFTER, THE
 "RESPONDENT").  A NOTICE OF HEARING WAS ISSUED BY THE REGIONAL
 ADMINISTRATOR ON DECEMBER 4, 1978.
 
    THE AMENDED COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION
 19()(1) AND (6) OF EXECUTIVE ORDER 11491 (HEREINAFTER, THE "ORDER") BY
 DENYING THE UNION POSTAGE-FREE USE OF THE ACTIVITY'S INTERNAL MAIL
 DISTRIBUTION SYSTEM AFTER THE UNION HAD ESTABLISHED THE RIGHT BY PAST
 USAGE FOR SOME NINE YEARS.
 
    A HEARING WAS HELD IN LITTLE ROCK, ARKANSAS ON FEBRUARY 15, 1979.
 ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 INVOLVED HEREIN.  UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND BRIEFS SUBMITTED BY
 COUNSEL OR REPRESENTATIVE FOR THE RESPECTIVE PARTIES, I MAKE THE
 FOLLOWING FINDINGS AND CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    1.  THE COMPLAINANT UNION, LOCAL 1671, IS, AND AT ALL TIMES MATERIAL
 HEREIN HAS BEEN, THE EXCLUSIVE REPRESENTATIVE OF ARMY NATIONAL GUARD
 TECHNICIANS EMPLOYED IN THE STATE OF ARKANSAS.  A LABOR-MANAGEMENT
 AGREEMENT WAS ENTERED BETWEEN THE PARTIES ON JULY 23, 1975, AND REMAINS
 IN EFFECT.
 
    2.  CAMP ROBINSON, THE LOCATION OF THIS DISPUTE, HAS TWO DISTRIBUTION
 POINTS WHICH RECEIVE BOTH EXTERNAL U.S. MAIL AND INTERNAL MAIL.  THE
 DISTRIBUTION POINT AT ISSUE IN THIS CASE IS THE UNITED STATES PROPERTY
 AND FISCAL OFFICE (HEREINAFTER, THE USP&FO").  AT THE USP&FO MAIL ROOM,
 EXTERNAL MAIL IS RECEIVED FROM THE U.S. POSTAL SERVICE DELIVERY TRUCKS
 AND GUARD EMPLOYEES WHO BRING MAIL FROM VARIOUS CAMP SUB-ACTIVITIES.
 THE MAIL IS THEN SORTED INTO CUBICLES FOR EACH SUB-ACTIVITY AND PICKED
 UP BY ITS EMPLOYEES FOR INTERNAL DELIVERY.
 
    3.  SINCE 1969, THE UNION HAS USED THE INTERNAL MAIL SYSTEM TO
 DISTRIBUTE, FREE OF POSTAGE, NEWSLETTERS, ELECTION BALLOTS, BULLETINS,
 AND OTHER ITEMS OF INTEREST TO UNION MEMBERS AND OTHER UNIT EMPLOYEES.
 THE UNION MAIL, WHICH WAS OFTEN BULKY, WAS DELIVERED TO THE MAIL ROOM
 BEFORE THE START OF THE WORKDAY AND SORTED INTO THE CUBICLES BY UNION
 MEMBERS.  SUPERVISORY EMPLOYEES, INCLUDING THE USP&FO OFFICER AND HIS
 ASSISTANT WOULD SOMETIMES PERSONALLY UNLOCK THE MAIL ROOM FOR EMPLOYEES
 TO DELIVER UNION MAIL.
 
    4.  THE UNION'S POSTAGE-FREE USE OF THE INTERNAL MAIL DISTRIBUTION
 SYSTEM WAS DISCUSSED WITH MANAGEMENT ON AT LEAST TWO SEPARATE OCCASIONS
 WHEN THE USP&FO OFFICER WAS RELIEVED.  THERE WAS INSUFFICIENT EVIDENCE
 TO INDICATE THAT THE RIGHT TO USE THE SYSTEM WAS A SUBJECT IN FORMAL
 CONTRACT NEGOTIATIONS AT ANY TIME.  THIS USE WAS EITHER PERMITTED OR
 OVERLOOKED BY THE USP&FO OFFICERS.
 
    5.  ARTICLE 8.1(B) OF THE LABOR-MANAGEMENT COOPERATION AGREEMENT
 (UNION CONTRACT) PRESENTLY IN EFFECT, DOES MENTION THE EMPLOYER'S
 TECHNICIAN PROGRAM MANUAL IN DISCUSSING THE PROCEDURE FOR RESOLVING
 GRIEVANCES OR DISPUTES, BUT NOWHERE ELSE IS EITHER THE MANUAL OR USE OF
 THE INTERNAL MAIL DISTRIBUTION SYSTEM DISCUSSED.  I DO NOT FIND THAT THE
 UNION CONTRACT COVERS THE USE OF THE MAIL SYSTEM OR INCORPORATES THE
 MANUAL IN THAT REGARD.
 
    6.  CHAPTER 7-2(B) OF THE TECHNICIAN PROGRAM MANUAL DATED APRIL 24,
 1974, PROHIBITS USE OF THE NATIONAL GUARD DISTRIBUTION SYSTEMS TO
 DISTRIBUTE UNION MATERIALS.
 
    7.  ON MAY 9, 1978, MANAGEMENT PROHIBITED THE UNION'S USE OF THE
 INTERNAL MAIL DISTRIBUTION SYSTEM AT CAMP ROBINSON WITHOUT PRIOR NOTICE
 OR OPPORTUNITY FOR THE UNION TO DISCUSS THE TERMINATION.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE ISSUE IN THIS CASE IS RATHER CLEAR AND HAS BEEN SETTLED BY THE
 ASSISTANT SECRETARY'S DECISION IN U.S. DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, A/SLMR 1034(1978).
 ALTHOUGH THE FACTS IN THAT CASE INCLUDED A UNILATERAL TERMINATION OF A
 PAST PRACTICE OF ALLOWING THE UNION TO USE ACTIVITY TYPEWRITERS, THE
 PRINCIPLE IT STANDS FOR IS APPLICABLE HERE.
 
    AS JUDGE STERNBURG OBSERVED IN NEW ORLEANS DISTRICT, IT IS WELL
 ESTABLISHED THAT THE USE OF AGENCY PROPERTY OR FACILITIES IS A PRIVILEGE
 RATHER THAN A RIGHT, HOWEVER, THE CONTINUED USE OF SUCH PROPERTY OR
 FACILITIES WITH THE ACTIVITY'S TACIT ASSENT MAY CREATE A VESTED INTEREST
 WHICH IS TANTAMOUNT TO A CONDITION OF EMPLOYMENT.  THIS RULE WAS MORE
 RECENTLY AFFIRMED IN INTERNAL REVENUE SERVICE, SOUTHWEST REGION,