09:0213(32)CA - GSA and NFFE Local 1705 -- 1982 FLRAdec CA



[ v09 p213 ]
09:0213(32)CA
The decision of the Authority follows:


 9 FLRA No. 32
 
 GENERAL SERVICES ADMINISTRATION
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1705
 Charging Party
 
                                            Case No. 3-CA-1016
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN OF THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE
 CERTAIN AFFIRMATIVE ACTION.  THE JUDGE FOUND THAT THE RESPONDENT HAD NOT
 ENGAGED IN ANOTHER UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
 RECOMMENDED DISMISSAL OF THAT PORTION OF THE COMPLAINT.  THEREAFTER, THE
 GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND THE
 RESPONDENT FILED AN OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS.
 
    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
 ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED HEREIN.
 
    THE COMPLAINT ALLEGED THAT THE "RESPONDENT DISPARATELY ENFORCED
 AGAINST THE UNION A POLICY REGARDING NO-DISTRIBUTION DURING EMPLOYEES'
 NON-WORK TIME TO THE EMPLOYEES' DESKS AND ON WINDSHIELDS OF EMPLOYEES'
 CARS IN THE EMPLOYEES' PARKING LOT, THEREBY INTERFERING WITH,
 RESTRAINING, AND COERCING EMPLOYEES" IN VIOLATION OF SECTION 7116(A)(1)
 OF THE STATUTE.  THE JUDGE CONCLUDED, AMONG OTHER THINGS, THAT THE
 COMPLAINT SHOULD BE DISMISSED WITH RESPECT TO THE ALLEGATION THAT
 RESPONDENT'S REFUSAL TO ALLOW DESK-TO-DESK DISTRIBUTION OF THE UNION
 LEAFLET CONSTITUTED UNLAWFUL INTERFERENCE WITH EMPLOYEE RIGHTS IN
 VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.  THE JUDGE REASONED THAT
 THE CASE INVOLVED "A SPECIFIC REQUEST BY THE UNION TO DISTRIBUTE THE
 (LEAFLET) AND THE ACTIVITY'S RESPONSE," RATHER THAN A QUESTION OF
 WHETHER OR NOT THE RESPONDENT "FORMULATED SOME TYPE OF AN OVERBROAD 'NO
 DISTRIBUTION' RULE." THE JUDGE FOUND, IN THIS REGARD, THAT AS THE
 INITIAL REQUEST TO DISTRIBUTE THE LEAFLET DESK-TO-DESK WOULD HAVE
 INVOLVED EITHER THE DISTRIBUTOR'S OR THE RECIPIENT'S WORK TIME, THE
 REQUEST TO DISTRIBUTE WAS EFFECTIVELY A REQUEST FOR OFFICIAL TIME
 PURSUANT TO SECTION 7131(D) OF THE STATUTE.  /1/ FURTHER, THE JUDGE
 FOUND "(E)VEN IN LIGHT OF THE ALLEGED DISPARATE TREATMENT . . .
 (S)ECTION 7131(D) SPECIFICALLY STATES THAT THE GRANTING (OF) OFFICIAL
 TIME FOR THE CONDUCT IN QUESTION IS A MATTER FOR COLLECTIVE BARGAINING
 AND THUS, IN EVENT OF AN IMPASSE, TO BE DISPOSED OF BY THE FEDERAL
 SERVICES IMPASSE (SIC) PANEL." THEREFORE, THE JUDGE CONCLUDED THE UNION
 WAS NOT ENTITLED, IN THE ABSENCE OF AN AGREEMENT, TO DUTY TIME TO
 DISTRIBUTE THE LEAFLETS.
 
    WHILE AGREEING WITH HIS CONCLUSION, THE AUTHORITY DOES NOT ADOPT THE
 JUDGE'S REASONING.  IN THE VIEW OF THE AUTHORITY, THE ISSUE INVOLVED
 HEREIN CONCERNS THE UNION'S RIGHT TO DISTRIBUTE LITERATURE.  /2/ UNDER
 SIMILAR FACTUAL CIRCUMSTANCES, THE AUTHORITY HAS CONCLUDED THAT A UNION
 HAS A RIGHT TO DISTRIBUTE LITERATURE "IN NON-WORK AREA(S) DURING
 NON-WORK TIME . . . " /3/ SUCH RIGHT FLOWS FROM SECTION 7102 OF THE
 STATUTE WHICH GUARANTEES TO EMPLOYEES THE RIGHT TO "FORM, JOIN, OR
 ASSIST" A LABOR ORGANIZATION.  HOWEVER, THERE IS NO STATUTORY RIGHT TO
 DISTRIBUTE LITERATURE IN WORK AREAS DURING WORK TIME, AND ABSENT
 AGREEMENT BY AN AGENCY AND BARGAINING REPRESENTATIVE, AN AGENCY MAY
 VALIDLY PROHIBIT SUCH DISTRIBUTION.  THEREFORE, THE UNION HEREIN HAD NO
 STATUTORY RIGHT TO DISTRIBUTE ITS LEAFLET "DESK-TO-DESK" AS REQUESTED,
 AS THIS DISTRIBUTION WOULD HAVE TAKEN PLACE IN WORK AREAS.  /4/
 
    THE GENERAL COUNSEL ALSO URGES THAT BECAUSE DESK-TO-DESK DISTRIBUTION
 OF THE UNION'S LITERATURE HAD OCCURRED PREVIOUSLY, AND BECAUSE OTHER
 TYPES OF LITERATURE ARE ROUTINELY DISTRIBUTED TO RESPONDENT'S EMPLOYEES,
 RESPONDENT'S REFUSAL OF THE UNION'S REQUEST HEREIN CONSTITUTED DISPARATE
 TREATMENT OF THE UNION IN VIOLATION OF SECTION 7116(A)(1) OF THE
 STATUTE.  EXAMPLES OF LITERATURE ROUTINELY DISTRIBUTED ARE:  NOTICES
 FROM THE GENERAL SERVICES EMPLOYEE ASSOCIATION;  NOTICES OF PROFESSIONAL
 ASSOCIATION MEETINGS;  NOTICES OF BLOOD, SAVINGS BONDS AND COMBINED
 FEDERAL CAMPAIGN DRIVES;  INFORMAL NOTICES OF EMPLOYEE RETIREMENT
 PARTIES;  AND TWO PRIOR UNION FLYERS DEALING WITH INFORMATION CONCERNING
 A PROPOSED PAY CAP AND MANAGEMENT'S CONDUCT OF NEGOTIATIONS.  THE RECORD
 REFLECTS THAT MOST OF THE ABOVE-NOTED SUBMISSIONS WERE AGENCY-SPONSORED
 LITERATURE DISTRIBUTED THROUGH THE AGENCY MAIL SYSTEM AND NOT
 DESK-TO-DESK.  WITH RESPECT TO THOSE MATERIALS WHICH WERE NOT
 AGENCY-SPONSORED AND WHICH MAY HAVE BEEN DISTRIBUTED DESK-TO-DESK, SUCH
 AS INFORMAL RETIREMENT PARTY NOTICES, AND THE TWO FLYERS, THE RECORD
 DOES NOT ESTABLISH THAT RESPONDENT'S PERMISSION WAS SOUGHT OR THAT
 RESPONDENT KNEW OF THE DISTRIBUTIONS, THAT SUCH ACTIONS WERE
 SUBSEQUENTLY CONDONED, OR THAT SUCH DISTRIBUTIONS WERE ACTIVITY-WIDE.
 AS THE RECORD DOES NOT SUPPORT THE ALLEGATION THAT THE RESPONDENT HAD
 PREVIOUSLY MAINTAINED A PAST PRACTICE OR PERMITTED OR CONDONED HEREIN,
 THE AUTHORITY FINDS THAT THE GENERAL COUNSEL HAS FAILED TO MEET ITS
 BURDEN OF ESTABLISHING THAT THE RESPONDENT'S REFUSAL TO PERMIT THE
 DISTRIBUTION HEREIN AMOUNTS TO DISPARATE TREATMENT OF THE UNION IN
 VIOLATION OF THE STATUTE.
 
    HOWEVER, IN AGREEMENT WITH THE JUDGE, AND NOTING PARTICULARLY THE
 ABSENCE OF EXCEPTIONS BY THE RESPONDENT, THE AUTHORITY FINDS THAT
 RESPONDENT'S REFUSAL TO PERMIT DISTRIBUTION OF THE LEAFLETS IN THE
 PARKING AREA, A NON-WORK AREA, DURING THE NON-WORK TIME OF THE
 DISTRIBUTOR CONSTITUTES A VIOLATION OF THE STATUTE.  AS NOTED ABOVE, THE
 AUTHORITY HAS CONCLUDED, IN SIMILAR FACTUAL CIRCUMSTANCES, THAT
 DISTRIBUTION OF UNION LITERATURE BY AN EMPLOYEE DURING NON-WORK TIME IN
 A NON-WORK AREA IS A RIGHT ASSURED BY THE STATUTE.  ACCORDINGLY, THE
 AUTHORITY CONCLUDES THAT RESPONDENT'S CONDUCT IN THIS REGARD WAS
 VIOLATIVE OF SECTION 7116(A)(1) OF THE STATUTE, AND THE RESPONDENT SHALL
 BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE APPROPRIATE
 AFFIRMATIVE ACTION.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE GENERAL SERVICES ADMINISTRATION SHALL:
 
    (1) CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
 EXERCISE OF RIGHTS
 
    ASSURED BY THE STATUTE BY REFUSING PERMISSION TO LOCAL 1705, NATIONAL
 FEDERATION OF FEDERAL
 
    EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION, TO HAVE EMPLOYEES
 DISTRIBUTE LEAFLETS DURING
 
    NON-WORK TIME IN THE EMPLOYEE PARKING LOT IN THE GSA MAIN BUILDING AT
 18TH & F STREETS, N.W.,
 
    WASHINGTON, D.C.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
 
    (2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) PERMIT EMPLOYEE REPRESENTATIVES OF LOCAL 1705, NATIONAL
 FEDERATION OF FEDERAL
 
    EMPLOYEES, TO DISTRIBUTE LEAFLETS DURING NON-WORK TIME IN THE
 EMPLOYEE PARKING LOT IN THE GSA
 
    MAIN BUILDING AT 18TH AND F STREETS, N.W., WASHINGTON, D.C.
 
    (B) POST AT THE GSA MAIN BUILDING, 18TH & F STREETS, N.W.,
 WASHINGTON, D.C., 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 THE ADMINISTRATOR OF
 THE GENERAL SERVICES
 
    ADMINISTRATION 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 EMPLOYEES
 
    ARE CUSTOMARILY POSTED.  THE ADMINISTRATOR SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SAID
 
    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 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.
 
    IT IS FURTHER ORDERED THAT THE ALLEGATION OF THE COMPLAINT IN CASE
 NO. 3-CA-1016 THAT RESPONDENT'S REFUSAL TO PERMIT DESK-TO-DESK
 DISTRIBUTION OF THE LEAFLETS WAS VIOLATIVE OF THE STATUTE BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 24, 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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY REFUSING PERMISSION
 TO LOCAL 1705, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
 LABOR ORGANIZATION, TO HAVE EMPLOYEES DISTRIBUTE LEAFLETS DURING
 NON-WORK TIME IN THE EMPLOYEE PARKING LOT IN THE GSA MAIN BUILDING AT
 18TH & F STREETS, N.W., WASHINGTON, D.C.
 
    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 PERMIT EMPLOYEE REPRESENTATIVES OF LOCAL 1705, NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES TO DISTRIBUTE LEAFLETS DURING NON-WORK
 TIME IN THE EMPLOYEE PARKING LOT IN THE GSA MAIN BUILDING AT 18TH & F
 STREETS, N.W., WASHINGTON, D.C.
 
                           (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, REGION III, FOR THE FEDERAL LABOR RELATIONS
 AUTHORITY, WHOSE ADDRESS IS:  1111 18TH STREET, N.W., SUITE 700,
 WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE NUMBER IS (202) 653-8507.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SAM LIVENGOOD
    HENRY LEIBOWITZ
                            FOR THE RESPONDENT
 
    EILEEN H. HAMAMURA, ESQ.
    HENRY T. WILSON, ESQ.
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  SAMUEL A. CHAITOVITZ
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
 ET SEQ (HEREINAFTER CALLED THE STATUTE) AND THE RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY 5 C.F.R. CHAPTER XIV, SEC. 2410 ET
 SEQ.
 
    PURSUANT TO A CHARGE FILED ON MARCH 21, 1980, A FIRST AMENDED CHARGE
 FILED ON JUNE 19, 1980, AND A SECOND AMENDED CHARGE FILED ON JUNE 20,
 1980, BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1705,
 (HEREINAFTER CALLED THE UNION AND/OR CHARGING PARTY), AGAINST THE
 GENERAL SERVICES ADMINISTRATION FEDERAL LABOR RELATIONS AUTHORITY, BY
 THE ACTING REGIONAL DIRECTOR FOR REGION 3, ISSUED A COMPLAINT AND NOTICE
 OF HEARING ON JUNE 25, 1980 ALLEGING THAT RESPONDENT HAD ENGAGED IN AND
 WAS ENGAGING IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTION
 7116(A)(1) OF THE STATUTE.  THE COMPLAINT ALLEGES THAT ON MARCH 14, 1980
 RESPONDENT DISPARATELY ENFORCED A POLICY REFUSING TO PERMIT THE UNION TO
 DISTRIBUTE A LEAFLET DURING EMPLOYEES NON-WORK TIME TO EMPLOYEES' DESKS
 AND WINDSHIELDS OF EMPLOYEES' CARS IN THE EMPLOYEE PARKING LOT.
 RESPONDENT ADMITS JURISDICTION BUT DENIES THAT IT VIOLATED THE STATUTE.
 
    A HEARING IN THIS MATTER WAS CONDUCTED ON SEPTEMBER 22 AND 23 IN
 WASHINGTON, D.C. AT WHICH TIME THE GENERAL COUNSEL AND RESPONDENT WERE
 REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 HEREIN AND TO ARGUE ORALLY.  BRIEFS WERE FILED BY RESPONDENT AND COUNSEL
 FOR THE GENERAL COUNSEL ON NOVEMBER 6, 1980 AND HAVE BEEN FULLY
 CONSIDERED.  /5/
 
    UPON THE ENTIRE RECORD /6/ IN THIS MATTER, MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
 MAKE THE FOLLOWING:
 
                             FINDINGS OF FACT
 
    A.  INCIDENT AT ISSUE
 
    AT ALL RELEVANT TIMES THE UNION HAS BEEN RECOGNIZED AS THE EXCLUSIVE
 COLLECTIVE BARGAINING REPRESENTATIVE FOR A UNIT COMPOSED OF ALL GENERAL
 SCHEDULE AND WAGE GRADE NON-PROFESSIONAL EMPLOYEES OF THE RESPONDENT'S
 CENTRAL OFFICE IN THE METROPOLITAN WASHINGTON, D.C. AREA.  THE UNION AND
 RESPONDENT WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH WAS
 EFFECTIVE DURING MARCH OF 1980.  FURTHER THE CONTRACT HAD BEEN MODIFIED
 BY THE PARTIES BY A SEPARATE AGREEMENT.  ARTICLE XX SECTION 1 OF THE
 COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT THE INTERNAL MAIL SYSTEM
 OF THE RESPONDENT MAY BE USED BY THE UNION TO COMMUNICATE WITH THE
 EMPLOYEES AND UNION OFFICIALS BUT THAT " . . . IT SHALL NOT BE USED FOR
 THE SOLICITATION OF MEMBERSHIP OR DUES, OR OTHER INTERNAL UNION
 BUSINESS." ARTICLE VII SECTION 6 PROVIDES THAT THE UNION CAN POST
 NOTICES ON OFFICIAL BULLETIN BOARD SPACE AND THE SUPPLEMENTAL AGREEMENT
 PROVIDES THE UNION WITH BULLETIN BOARD SPACE AT 5 DIFFERENT LOCATIONS.
 
    APPROXIMATELY 3,000 GSA EMPLOYEES WORK IN THE GSA MAIN BUILDING AT
 18TH AND F STREET, N.W., WASHINGTON, D.C.  THE SUBJECT BARGAINING UNIT
 REPRESENTED BY THE UNION IS COMPOSED OF APPROXIMATELY 1,600-1,700
 EMPLOYEES, WITH SOME 1,300-1,400 OF THEM EMPLOYED AT THE GSA MAIN
 BUILDING.  THE REMAINING 300 EMPLOYEES IN THE SUBJECT WORK UNIT WORK
 ELSEWHERE.  THE GSA MAIN BUILDING HAS AN EMPLOYEE PARKING LOT WITH
 APPROXIMATELY 141 SPACES IN THE EAST AND WEST COURT, AND ALSO HAS A
 CAROUSEL, OR STACKING RAMP, WITH ADDITIONAL PARKING SPACES.
 EMPLOYEE-DRIVERS HAVE IDENTIFICATIONS THAT PERMIT THEM TO UTILIZE THE
 PARKING FACILITIES.  AT ALL TIMES MATERIAL HEREIN GUARDS WERE STATIONED
 AT THE TWO PARKING LOT ENTRANCES TO CHECK THE DRIVER IDENTIFICATIONS.
 THERE ARE ALSO PEDESTRIAN ACCESS DOORS FROM THE GSA MAIN BUILDING TO THE
 PARKING AREA.
 
    ON MARCH 14, 1980, AT ABOUT 12:15 PM UNION PRESIDENT SALLY JOYCE
 HYMES WAS ADVISED, TELEPHONICALLY, BY NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES DIRECTOR OF CIVILIAN AGENCIES BRANCH, CHARLES BERNHARDT THAT,
 BECAUSE CONGRESS MIGHT PASS A PENDING PAY REFORM BILL BEFORE PROPER
 HEARINGS COULD BE HELD, HE WAS CALLING VARIOUS NFFE LOCALS, DIRECTOR
 BERNHARDT STATED THAT BECAUSE THIS PAY REFORM BILL WAS OF A CRITICAL
 IMPORTANCE TO FEDERAL EMPLOYEES NFFE'S NATIONAL OFFICE WANTED THE LOCAL
 UNIONS TO ENCOURAGE EMPLOYEES TO CONTACT THEIR REPRESENTATIVES IN
 CONGRESS, SPECIFICALLY HOUSE SPEAKER O'NEIL, TO ENSURE THAT PROPER
 HEARINGS WOULD BE HELD.
 
    UNION PRESIDENT HYMES TYPED A UNION FLYER ENTITLED "URGENT NOTICE TO
 ALL UNIT EMPLOYEES, UNION MEMBERS, PROFESSIONALS, MANAGERS, SUPERVISORS,
 ETC.", WHICH OUTLINED THE INFORMATION CONVEYED BY BERNHARDT AND WHICH
 URGED THE READERS TO CONTACT THE HOUSE SPEAKER AND THEIR OWN
 REPRESENTATIVES AND/OR SENATORS WITH RESPECT TO THE NECESSITY OF HAVING
 HEARINGS ON THE PAY REFORM BILL.  UNION PRESIDENT HYMES THEN DISTRIBUTED
 ABOUT 15 TO 20 FLYERS IN HER IMMEDIATE WORK AREA AND IN SURROUNDING
 AREAS BY PLACING THEM ON DESKS OR IN "IN-BOXES".  IN THOSE INSTANCES
 WHERE THE EMPLOYEE RECEIVING THE DOCUMENT WAS WORKING AT HIS DESK, UNION
 PRESIDENT HYMES SUMMARIZED THE FLYER, ASKED THE PERSON TO READ IT AND TO
 TAKE THE IMMEDIATE ACTION REQUESTED.  THE EMPLOYEE RECEIVING THE FLYER
 THEN READ IT.
 
    UNION PRESIDENT HYMES DECIDED TO SEEK MANAGEMENT'S APPROVAL TO
 DISTRIBUTE THE FLYER "ON THE CLOCK" AND IN THE WORK AREAS.  TO SECURE
 SUCH APPROVAL UNION PRESIDENT HYMES CALLED THE OFFICE OF THE DIRECTOR OF
 EMPLOYEE AND LABOR RELATIONS BUT THE RESPONSIBLE OFFICIALS WERE NOT
 AVAILABLE.  SHE THEN CALLED TOM GASQUE, ASSISTANT GENERAL COUNSEL OF THE
 LABOR LAW DIVISION, WHO SUGGESTED THAT SHE CALL WILLIAM PAZ, ASSISTANT
 ADMINISTRATOR FOR HUMAN RESOURCES AND ORGANIZATION.  MS. HYMES CALLED
 MR. PAZ' OFFICE AND SPOKE WITH MR. PAZ' EXECUTIVE ASSISTANT, BRUCE
 HOWARD.  MS. HYMES DESCRIBED THE CIRCUMSTANCES AND THE FLYER AND ASKED
 PERMISSION TO DISTRIBUTE IT.  MR. HOWARD STATED THAT HE COULD NOT GIVE
 HER AN ANSWER AND ASKED TO SEE THE FLYER.  MS. HYMES WENT TO MR.
 HOWARD'S OFFICE TO SHOW HIM THE FLYER AND WAS TAKEN TO SEE MR. HOWARD'S
 ASSISTANT, TOM HUIBIN.  MS. HYMES AGAIN DESCRIBED THE CIRCUMSTANCES AND
 THE FLYER AND ASKED PERMISSION TO IMMEDIATELY DISTRIBUTE THE FLYER,
 ON-THE-CLOCK ON A DESK-TO-DESK BASIS.  MR. HUIBIN AND MS. HYMES WENT TO
 THE OFFICE OF NORMAN L. LINTON, DIRECTOR OF THE OFFICE OF PERSONNEL,
 WHERE THEY SPOKE WITH DEPUTY DIRECTOR JOHN P. HANKARD.  MS. HYMES
 DESCRIBED THE CIRCUMSTANCES TO MR. HANKARD, HANDED HIM A COPY OF THE
 FLYER AND ASKED PERMISSION FOR THE UNION TO IMMEDIATELY DISTRIBUTE THE
 FLYERS BY A DESK-DROP ON-THE-CLOCK.  MR. HANKARD OBJECTED THAT THE FLYER
 APPEARED CLOSE TO LOBBYING AND, AFTER CONSULTING WITH LABOR RELATIONS
 SPECIALIST WILLIAM CONLEY, INFORMED MS. HYMES THAT BECAUSE IT WAS CLOSE
 TO LOBBYING HE COULD NOT PERMIT THE UNION TO DISTRIBUTE THE FLYER AT THE
 DESKS AS REQUESTED.  MS. HYMES DISPUTED THAT THE FLYER CONSTITUTED
 LOBBYING AND INSISTED THAT THE UNION SHOULD HAVE THE RIGHT TO DISTRIBUTE
 IT.  DURING THE DISCUSSION MS. HYMES POINTED OUT THAT THE UNION
 DISTRIBUTED TWO OTHER FLYERS DESK TO DESK, BOTH ON AND OFF THE CLOCK AND
 THAT MANAGEMENT HADN'T OBJECTED.  /7/ MS. HYMES STATED THAT SHE WANTED
 TO DISTRIBUTE THE FLYER IMMEDIATELY BUT MR.  HANKARD REPLIED SHE COULD
 NOT DO IT ON THE CLOCK.  MS. HYMES THEN STATED SHE WOULD DO IT OFF THE
 CLOCK AND WOULD DISTRIBUTE IT DESK TO DESK.  MR. HANKARD STATED THAT HE
 WOULD NOT PERMIT THAT EITHER.  MS. HYMES THEN STATED THAT SHE WOULD GO
 TO THE PARKING AREA, OFF-THE-CLOCK, AND PUT FLYERS UNDER THE WINDSHIELD
 WIPERS OF THE PARKED CARS.  MR. HANKARD DENIED HER PERMISSION TO SO
 DISTRIBUTE FLYERS IN THE PARKING LOT BUT SAID SHE COULD DISTRIBUTE THE
 FLYER IN THE PUBLIC AREAS SUCH AS THE LOBBY, CAFETERIA AND THE ACCESS TO
 THE PARKING AREAS.
 
    MS. HYMES THEN WAITED UNTIL THE END OF HER WORKDAY AND DISTRIBUTED
 FLYERS IN THE MAIN LOBBY FOR AN HOUR.  FURTHER, ON THE FOLLOWING MONDAY
 AND TUESDAY, MARCH 17 AND 18, MS. HYMES AND OTHER UNION VOLUNTEERS HAND
 OUT FLIERS, ON THEIR OWN TIME, IN THE PUBLIC AREAS AND POSTED THEM ON
 THE TWO UNION BULLETIN BOARDS.
 
    B.  PRIOR DISTRIBUTIONS
 
    IN JANUARY 1979 MS. HYMES AND THEN UNION PRESIDENT GLENN DISTRIBUTED
 A FLIER ON THE SOCIAL SECURITY FEDERAL RETIREMENT ISSUE TO ABOUT
 ONE-THIRD TO ONE-HALF OF THE DESKS IN THE MAIN GSA BUILDING.  MS. HYMES
 AND MR. GLENN MADE A SECOND FLIER DISTRIBUTION IN JUNE 1979 CONCERNING
 PICKETING AND THE PAY CAP.  THIS DISTRIBUTION WAS MADE DESK TO DESK BOTH
 ON AND OFF THE CLOCK.  A THIRD DESK TO DESK DISTRIBUTION WAS MADE BY MS.
 HYMES AND UNION NEGOTIATOR TEAMS ON OR ABOUT JUNE 23, 1979 REGARDING THE
 STATUS OF CONTRACT NEGOTIATIONS.  AFTER DISTRIBUTION RESPONDENT'S LABOR
 RELATIONS SPECIALIST NICK CAVE EXPRESSED CONCERN THAT THE UNION
 REPRESENTATIVES HAD GOTTEN INTO LOCKED OFFICES.  NO MANAGEMENT
 PERMISSION WAS SOUGHT AT ANY OF THESE DISTRIBUTIONS AND, OTHER THAN THE
 CONVERSATION ALREADY DESCRIBED, RESPONDENT MADE NO OBJECTION TO THESE
 UNION DISTRIBUTIONS.
 
    THE RECORD ESTABLISHES THAT FLIERS BY VARIOUS KINDS OF ORGANIZATIONS
 AND FOR VARIOUS PURPOSES ARE DISTRIBUTED AND CIRCULATED.  ALTHOUGH THESE
 FLIERS ENDED UP ON INDIVIDUAL DESKS, THE RECORD DOES NOT ESTABLISH
 WHETHER THEY WERE DISTRIBUTED "DESK-TO-DESK" OR THROUGH THE INTERNAL
 MAIL SYSTEM, THROUGH WHICH FLIERS ALSO END UP ON INDIVIDUAL DESKS
 IN-BOXES.  THE RECORD DOES ESTABLISH THAT SOME NOTICES AND FLIERS
 REGARDING RETIREMENT AND BIRTHDAYS WERE DISTRIBUTED IN LOCAL WORK AREAS
 ON A DESK TO DESK BASIS DURING WORK TIME.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE AGENCY CONTENDS THAT IT WAS PRIVILEGED TO REFUSE THE UNION'S
 REQUEST TO DISTRIBUTE THE FLIERS BECAUSE THE FLIERS WERE AIMED AT
 LEGISLATION PENDING BEFORE CONGRESS AND THUS THE SUBJECT MATTER OF THE
 FLIER WAS OUTSIDE AGENCY CONTROL AND OUTSIDE EMPLOYER-EMPLOYEE
 RELATIONSHIP.  FURTHER RESPONDENT URGES THAT BECAUSE THE FLIER WAS
 DIRECTED TO MANAGERS, SUPERVISORS AND PROFESSIONALS, IN ADDITION TO
 EMPLOYEES, THE UNION HAD ABANDONED ALL CLAIMS TO PROTECTION UNDER THE
 STATUTE.
 
    A UNION'S CONDUCT IN ATTEMPTING TO INFLUENCE CONGRESS, ESPECIALLY
 WITH RESPECT TO MATTERS THAT DIRECTLY AFFECT WORKING CONDITIONS, AS
 WOULD THE PROPOSED PAY REFORM LEGISLATION, HAS BEEN RECOGNIZED AS
 LEGITIMATE UNION CONDUCT WHICH IS ENTITLED TO FULL PROTECTION.  SECTION
 7102(1) OF THE STATUTE PROTECTS THE RIGHTS OF EMPLOYEES ACTING FOR LABOR
 ORGANIZATIONS TO "PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO . . .
 THE CONGRESS . . . " SEE ALSO U.S.  DEPARTMENT OF HOUSING AND URBAN
 DEVELOPMENT, A/SLMR NO. 925, 7 A/SLMR 948(1977);  AND EASTEX VS. NLRB,
 437 U.S. 556(1978).  THIS RIGHT OF A UNION TO COMMUNICATE WITH CONGRESS
 IS ESSENTIAL IN THE FEDERAL SECTOR BECAUSE SO MANY FUNDAMENTAL WORKING
 CONDITIONS ARE DIRECTLY DETERMINED BY CONGRESS THROUGH LEGISLATION.
 THEREFORE, THE AGENCY'S ARGUMENT THAT THE UNION CONDUCT IN THE INSTANT
 CASE, ATTEMPTING TO GET EMPLOYEES, UNION MEMBERS AND OTHERS, TO
 COMMUNICATE WITH CONGRESS, WAS SOMEHOW UNPROTECTED BECAUSE IT DID NOT
 INVOLVE THE "EMPLOYER-EMPLOYEE RELATIONSHIP" MUST BE REJECTED AS TOO
 NARROW AN INTERPRETATION OF THE STATUTE'S PROTECTION OF UNION CONDUCT.
 CF. EASTEX VS. NLRB, SUPRA.  IN THE INSTANT CASE THE FLIER WAS DIRECTED
 BOTH TO EMPLOYEES WITHIN THE UNIT REPRESENTED BY THE UNION AND TO THOSE
 NOT REPRESENTED AND EVEN TO THOSE WHO COULD NOT BE REPRESENTED BY THE
 UNION, I.E.  MANAGEMENT OFFICIALS.  IT IS FURTHER URGED THAT, BECAUSE
 THE FLIER WAS DIRECTED TO A GROUP BROADER THAN THE GROUP REPRESENTED BY
 THE UNION, THE DISTRIBUTION OF THE FLIER WAS SOMEHOW NOT PROTECTED UNION
 CONDUCT, OR THAT THE CONDUCT LOST ITS PROTECTION.  HERE AGAIN WHERE THE
 UNION WAS AIMING ITS OTHERWISE PROTECTED CONDUCT AT A GROUP WHOM IT
 SUBSTANTIALLY REPRESENTED OR COULD LAWFULLY REPRESENT, THAT CONDUCT MUST
 BE PROTECTED.  /8/
 
    THE COUNSEL FOR THE GENERAL COUNSEL URGES THAT THE AGENCY, IN THIS
 CASE, FORMULATED SOME TYPE OF AN OVERBROAD "NO DISTRIBUTION" RULE THAT
 IS UNLAWFUL.  RATHER THIS CASE INVOLVES A SPECIFIC REQUEST BY THE UNION
 TO DISTRIBUTE THE SUBJECT FLIERS AND THE ACTIVITY'S RESPONSE.  MS. HYMES
 AT FIRST ASKED, DURING THE EARLY AFTERNOON, FOR PERMISSION TO DISTRIBUTE
 THE FLIERS, ON THE CLOCK, DESK TO DESK.  PERMISSION WAS DENIED.  THEN
 MS. HYMES ASKED FOR PERMISSION TO DISTRIBUTE THE FLIERS IMMEDIATELY,
 DESK TO DESK OFF-THE-CLOCK.  PERMISSION TO DO THIS WAS DENIED BUT SHE
 WAS TOLD SHE COULD DISTRIBUTE THE FLIERS "OFF-THE-CLOCK" IN THE PUBLIC
 AREAS (CAFETERIA, LOBBY, ETC.), WHICH SHE DID.  SHE WAS ALSO DENIED
 PERMISSION TO DISTRIBUTE THE FLIERS IN THE EMPLOYEE PARKING AREA,
 "OFF-THE-CLOCK".  SECTION 7131(A) OF THE STATUTE PROVIDES THAT, WITH
 CERTAIN LIMITATIONS, EMPLOYEES WHILE "REPRESENTING AN EXCLUSIVE
 REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT .
 . . " SHALL BE AUTHORIZED OFFICIAL TIME.  SECTION 7131(B) PROVIDES
 HOWEVER THAT AN EMPLOYEE ENGAGING IN ACTIVITIES "RELATING TO THE
 INTERNAL BUSINESS OF A LABOR ORGANIZATION . . . " SHALL PERFORM SUCH
 ACTIVITIES ON A NON-DUTY STATUS.
 
    SECTION 7131(D) OF THE STATUTE PROVIDES:
 
    "(D) EXCEPT OR PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS
 SECTION--
 
    '(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    '(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
 EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
 GRANTED OFFICIAL TIME IN
 
    ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
 TO BE REASONABLE,
 
    NECESSARY, AND IN THE PUBLIC INTEREST . . . "
 
    THE AGENCY URGES THAT THERE WAS NO VIOLATION OF THE STATUTE PROVEN
 BECAUSE THE GENERAL COUNSEL'S EVIDENCE OF DISPARATE TREATMENT WAS
 INADEQUATE;  BECAUSE THERE WERE SPECIAL CIRCUMSTANCES RELATING TO THE
 PARKING LOT;  AND FINALLY, BECAUSE THE UNION HAD WAIVED ANY RIGHT IT HAD
 BY NEGOTIATING METHODS OF COMMUNICATIONS IN ITS CONTRACT.
 
    THE GENERAL COUNSEL URGES THAT SECTION 7131(B) LIMITATIONS ON USE OF
 OFFICIAL TIME RELATE ONLY TO THE DISTRIBUTOR OF LEAFLETS, NOT TO THE
 RECIPIENTS, AND THAT, IN ANY EVENT, THE DISTRIBUTION OF THE FLIERS IN
 THE INSTANT SITUATION DOES NOT RELATE "TO THE INTERNAL BUSINESS OF A
 LABOR ORGANIZATIONS . . . " AS SET FORTH IN SECTION 7131(B).
 
    THE FLRA ANALYZED AND CONSTRUED SECTIONS 7131(A)(B) AND (D) IN TWO
 NEGOTIABILITY CASES.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2823 AND VETERANS ADMINISTRATION REGIONAL OFFICE,
 CLEVELAND, OHIO, 2 FLRA NO. 1(1979), (HEREINAFTER REFERRED TO AS THE VA
 CASE);  AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1692 AND HEADQUARTERS, 323RD FLYING TRAINING WING (ATC), MATHER AIR
 FORCE BASE, 3 FLRA NO. 47(1980), (HEREINAFTER REFERRED TO AS THE MATHER
 AIR FORCE BASE CASE).  IN THESE CASES THE FLRA CONSTRUED SEC. 7131(B)'S
 REFERENCE TO "INTERNAL BUSINESS OF A LABOR ORGANIZATION" RATHER NARROWLY
 STATING THAT IT REFERS TO MATTERS "SOLELY RELATED TO THE INSTITUTIONAL
 STRUCTURE OF A LABOR ORGANIZATION" VA CASE, SUPRA, SL.  OP. PAGE 6.
 HOWEVER IN DISCUSSING CONGRESSIONAL INTENT WITH RESPECT TO THE ENACTMENT
 OF SEC.  7131(B) OF THE STATUTE THE AUTHORITY STATED "IN THIS REGARD,
 CONGRESS INTENDED TO PROSCRIBE THE USE OF DUTY TIME FOR ONLY THOSE
 ACTIVITIES RELATING TO THE UNION AS AN ORGANIZATION AND PERTAINING TO
 THE OPERATION OF THAT ORGANIZATION, SUCH AS UNION BUSINESS MEETINGS,
 COMMUNICATION WITH MEMBERS, CONTRACTING FOR GOODS AND SERVICES, PAYMENT
 OF BILLS, AND OTHER SIMILAR AND ASSOCIATED ACTIVITIES . . . ", VA CASE,
 SUPRA, SL. OP/ PAGE 5.  THUS THE AUTHORITY SOMEWHAT BROADENED ITS
 CONSTRUCTION OF "INTERNAL BUSINESS OF A LABOR ORGANIZATION" SO AS TO
 INCLUDE "COMMUNICATION WITH MEMBERS".  HOWEVER, SINCE THE UNION, IN
 DISTRIBUTING THE FLIERS, WAS NOT SOLELY ATTEMPTING TO COMMUNICATE WITH
 MEMBERS, THE AUTHORITY'S CONSTRUCTION WOULD NOT COVER THE CONDUCT IN
 QUESTION AND THUS IT MUST BE CONCLUDED THAT THE UNION WAS NOT ENGAGING
 IN "INTERNAL BUSINESS OF A LABOR ORGANIZATION" AS DEFINED IN SECTION
 7131(B).
 
    SECTION 7131(D) APPLIES TO GRANTING UNION OFFICIALS DUTY TIME FOR
 ACTIVITIES NOT COVERED BY SEC. 7131(A) OR (B) AND WOULD THEREFORE APPLY
 TO THE SUBJECT CONDUCT, THE DISTRIBUTING FLIERS.  SECTION 7131(D)
 PROVIDES THAT OFFICIAL TIME SHALL BE GRANTED "IN ANY AMOUNT THE AGENCY
 AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE TO BE REASONABLE,
 NECESSARY AND IN THE PUBLIC INTEREST . . . " THE CONTRACT DOES NOT
 CONTAIN ANY AGREEMENT THAT THE OFFICIAL DUTY TIME SHALL BE GRANTED TO
 ENGAGE IN THE CONDUCT WHICH IS THE SUBJECT OF THIS CASE AND THE RECORD
 DOES NOT ESTABLISH THAT ANY SUCH AGREEMENT WAS OTHERWISE ENTERED INTO BY
 THE PARTIES.  FURTHER, SINCE IT IS, PURSUANT TO SECTION 7131(D), THE
 SUBJECT OF COLLECTIVE BARGAINING, THE UNION CAN NOT BYPASS THE IMPASS
 PROVISIONS OF THE STATUTE BY DEMANDING THAT IT IMMEDIATELY BE GRANTED
 DUTY TIME TO DISTRIBUTE FLIERS AND CONTENDING THAT FAILURE TO DO SO
 CONSTITUTES AN UNFAIR LABOR PRACTICE.  RATHER THE STATUTE ENVISIONS, IF
 SUCH A REQUEST IS MADE AND THE PARTIES CAN NOT AGREE AFTER NEGOTIATION
 THAT SUCH AN IMPASS GO TO THE FEDERAL IMPASS PANEL FOR DISPOSITION.  /9/
 EVEN IN THE LIGHT OF THE ALLEGED DISPARATE TREATMENT /10/ SECTION
 7131(D) SPECIFICALLY STATES THAT THE GRANTING OFFICIAL TIME FOR THE
 CONDUCT IN QUESTION IS A MATTER FOR COLLECTIVE BARGAINING AND THUS, IN
 EVENT OF AN IMPASS, TO BE DISPOSED OF BY THE FEDERAL SERVICES IMPASS
 PANEL.
 
    IN LIGHT OF THE FOREGOING THEREFORE, AND IN THE ABSENCE OF AN
 AGREEMENT TO THE CONTRARY, THE UNION WAS NOT ENTITLED TO DUTY TIME TO
 DISTRIBUTE THE FLIERS IN QUESTION.  THIS LIMITATION PLACED BY SECTION
 7131(D) ON THE USE OF OFFICIAL TIME TO DISTRIBUTE THESE FLIERS MUST
 APPLY TO THE RECIPIENTS AS WELL AS THE DISTRIBUTORS.  MS. HYMES
 TESTIFIED, WITH RESPECT TO THE 15 OR 20 FLIERS WHICH SHE DID DISTRIBUTE
 DESK-TO-DESK, THAT WHEN A WORKING EMPLOYEE RECEIVED THE FLIER MS. HYMES
 EXPLAINED IT TO THE EMPLOYEE AND ANSWERED THE EMPLOYEE'S QUESTIONS AND
 THAT THE EMPLOYEE THEN READ THE FLIER.  THE RECIPIENT, WHO WAS AT WORK,
 INTERRUPTED HIS WORK TO READ AND DISCUSS THE FLIER.  THUS THE WORK OF
 THE EMPLOYEE WAS DISRUPTED AND THE EMPLOYEE WAS ENGAGING IN THE VERY
 CONDUCT COVERED BY SECTION 7131(D) WHILE ON DUTY STATUS, IN THE ABSENCE
 OF ANY AGREEMENT PERMITTING SUCH CONDUCT.  ACCORDINGLY, IT IS CONCLUDED
 THAT IN THE LIGHT OF SECTION 7131(D), AND IN THE ABSENCE OF ANY
 AGREEMENT, THE RESPONDENT DID NOT VIOLATE THE STATUTE BY REFUSING TO
 PERMIT THE UNION TO DISTRIBUTE THE FLIERS DURING THE WORKING TIME OF THE
 DISTRIBUTOR OR DURING THE WORKING TIME OF THE RECIPIENT.
 
    HOWEVER IT IS CONCLUDED THAT RESPONDENT DID VIOLATE SECTION
 7116(A)(1) OF THE STATUTE WHEN IT REFUSED THE UNION PERMISSION TO
 DISTRIBUTE FLIERS IN THE PARKING AREA DURING THE DISTRIBUTOR'S NON DUTY
 TIME.  RESPONDENT DID NOT SUBMIT ANY EVIDENCE TO ESTABLISH THAT IT WOULD
 HAVE BEEN DANGEROUS, UNDULY DISRUPTIVE, ETC. TO PERMIT DISTRIBUTION IN
 THE PARKING AREA.  THUS SINCE THE DISTRIBUTION, AS DISCUSSED ABOVE IS
 PROTECTED CONDUCT /11/ AND IT WAS TO BE CONDUCTED DURING NON-WORK TIME
 IN A NON-WORK AREA, REFUSING TO PERMIT IT CONSTITUTED UNLAWFUL
 INTERFERENCE WITH PROTECTED UNION ACTIVITY AND THUS VIOLATED SECTION
 7116(A)(1) OF THE STATUTE.
 
    THE GENERAL COUNSEL URGES THAT WHEN RESPONDENT LIMITED ITS PERMISSION
 TO "PUBLIC AREAS" RATHER THAN "NON-WORKING AREAS" THIS WAS TOO
 RESTRICTIVE.  THIS CONTENTION MUST BE REJECTED BECAUSE THE RECORD DOES
 NOT ESTABLISH THAT, EXCEPT FOR THE PARKING AREAS, THERE ARE ANY
 "NON-WORK AREAS" OTHER THAN THE "PUBLIC AREAS".  IT IS CLEAR THAT IN THE
 CONTEXT OF THE INSTANT SITUATION RESPONDENT WAS MERELY INSTRUCTING MS.
 HYMES THAT EVEN IF SHE WAS IN NON-DUTY STATUS, SHE COULD NOT DISRUPT
 EMPLOYEES WHILE WORKING, AND THUS HAD TO LIMIT THE DISTRIBUTION TO THE
 PUBLIC AREAS.  /12/
 
    HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTION
 7116(A)(1) OF THE STATUTE, I RECOMMEND THE AUTHORITY ISSUE THE
 FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY
 RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY
 HEREBY ORDERS THAT GENERAL SERVICES ADMINISTRATION SHALL:
 
    (1) CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS
 
    ASSURED BY THE STATUTE BY REFUSING PERMISSION TO LOCAL 1705, NATIONAL
 FEDERATION OF FEDERAL
 
    EMPLOYEES OR ANY OTHER LABOR ORGANIZATION, TO DISTRIBUTE FLIERS IN
 THE EMPLOYEE PARKING LOT IN
 
    GSA MAIN BUILDING AT 18TH & F STREETS, N.W., WASHINGTON, D.C.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    (2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) PERMIT LOCAL 1705, NATIONAL FEDERATION OF FEDERAL EMPLOYEES TO
 DISTRIBUTE UNION FLIERS
 
    IN THE EMPLOYEE PARKING LOT IN GSA MAIN BUILDING AT 18TH AND F
 STREETS, N.W., WASHINGTON, D.C.
 
    (B) POST AT ITS MAIN BUILDING, 18TH & F STREETS, N.W., WASHINGTON,
 D.C., COPIES OF THE
 
    ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE
 FURNISHED BY THE REGIONAL
 
    DIRECTOR FOR REGION 3, AFTER BEING SIGNED BY AN AUTHORIZED
 REPRESENTATIVE, SHALL BE POSTED BY
 
    IT IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
 CONSECUTIVE DAYS
 
    THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
 TO EMPLOYEES ARE
 
    CUSTOMARILY POSTED.  REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
 SAID NOTICES ARE NOT
 
    ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR FOR REGION 3, IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
 
                         SAMUEL A. CHAITOVITZ
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 28, 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 INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY REFUSING PERMISSION
 TO LOCAL 1705, NATIONAL FEDERATION BY OF FEDERAL EMPLOYEES, OR ANY OTHER
 LABOR ORGANIZATION, TO DISTRIBUTE UNION FLIERS IN THE EMPLOYEE PARKING
 LOT IN GSA MAIN BUILDING AT 18TH & F STREETS, N.W., WASHINGTON, D.C.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL PERMIT LOCAL 1705 NATIONAL FEDERATION OF FEDERAL EMPLOYEES TO
 DISTRIBUTE UNION FLIERS IN THE EMPLOYEE PARKING LOT IN GSA MAIN BUILDING
 AT 18TH AND F STREETS, N.W., WASHINGTON, D.C.
 
                           (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:  1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C.  20005
 AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7131(D) READS AS FOLLOWS:
 
    (D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
 
    (1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
 
    (2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
 EMPLOYEE IN AN
 
    APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE,
 
    SHALL BE GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND THE
 EXCLUSIVE REPRESENTATIVE
 
    INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND IN THE PUBLIC
 INTEREST.
 
    /2/ THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE JUDGE'S
 DISCUSSION AT P. 5 OF HIS DECISION REGARDING THE APPLICATION OF
 DISTRIBUTION, NOT THE CONTENTS OF THE MATERIALS.
 
    /3/ INTERNAL REVENUE SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER,
 MASSACHUSETTS, 7 FLRA NO. 92(1982).
 
    /4/ MOREOVER, THE UNION'S REQUEST DOES NOT APPEAR TO HAVE BEEN A
 REQUEST TO NEGOTIATE TO EXPAND UPON ITS STATUTORY RIGHT.
 
    /5/ COUNSEL FOR THE GENERAL COUNSEL FILED A MOTION AND BRIEF IN
 SUPPORT ON DECEMBER 1, 1980 TO STRIKE CERTAIN PORTIONS OF RESPONDENTS
 BRIEF BECA0SE THEY ALLEGEDLY RAISED MATTERS NOT SUPPORTED BY THE RECORD.
  RESPONDENT FILED AN OPPOSITION TO THE MOTION ON DECEMBER 5, 1980.  THE
 MATTERS RAISED IN THE MOTION ARE DEALT WITH IN THE DISPOSITION OF THIS
 CASE AND THEREFORE NEED NOT BE DEALT WITH SEPARATELY.
 
    /6/ THE TRANSCRIPT OF HEARING IN THIS MATTER IS CORRECTED AS FOLLOWS:
  (TABLE OMITTED)
 
    /7/ THE TWO PRIOR FLYERS DEALT WITH PICKETING INFORMATION CONCERNING
 A PROPOSED PAY CAP AND DEALT WITH MANAGEMENTS CONDUCT AT NEGOTIATIONS.
 
    /8/ I NEED NOT REACH THE ISSUE OF WHETHER THE CONDUCT WOULD BE
 PROTECTED IF IT WERE AIMED SOLELY AT PERSONS WHOM THE UNION COULD NOT
 REPRESENT.
 
    /9/ SECTION 7119 OF THE STATUTE.
 
    /1