13:0310(48)CA - Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB, CO and AFGE Local 2865 -- 1983 FLRAdec CA



[ v13 p310 ]
13:0310(48)CA
The decision of the Authority follows:


 13 FLRA No. 48
 
 ARMY AND AIR FORCE EXCHANGE SERVICE
 (AAFES), LOWRY AFB EXCHANGE,
 LOWRY AFB, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2865
 Charging Party
 
                                            Case No. 7-CA-591
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings and conclusion that the Respondent did not, in the
 specific circumstances of this case, violate section 7116(a)(1) of the
 Statute as alleged in the complaint.  /1/
 
    As found by the Judge, the American Federation of Government
 Employees, AFL-CIO, Local 2865 (the Union), the exclusive representative
 of certain employees at the Army and Air Force Exchange Service (AAFES),
 Lowry AFB Exchange, Lowry AFB, Colorado (the Respondent), requested and
 was granted access to a specific neutral place on the Respondent's
 facility where a non-employee Union representative could meet with unit
 employees on their non-work time to conduct internal union business.
 The Judge further found, based upon credited testimony, that the Union
 had at least specifically agreed to notify the Respondent's Exchange
 Manager before non-employee Union representatives went into Exchange
 facilities;  that William Bleau, a non-employee Union representative,
 thereafter entered the Respondent's facilities without providing such
 notice, although he fully understood that the requirement applied to
 him, and met with unit employees concerning internal union business
 immediately adjacent to their work area rather than at the neutral
 location set aside for such purpose;  that Mr. Bleau was speaking with
 these employees when he was approached by Ms. Scott, a management
 representative, and told that he was not permitted on the premises to
 talk with employees without authorization and that he would have to
 leave;  and that Mr. Bleau refused to do so until Ms. Scott asked for
 the Air Police to be summoned.  The Judge concluded, based upon the
 foregoing, that the Respondent did not violate section 7116(a)(1) of the
 Statute as alleged.  The Authority agrees.  Thus, as previously noted,
 the Union clearly had agreed to notify the Exchange Manager before
 non-employee Union representatives entered the Respondent's facilities
 but failed to comply with that requirement in the instant case.  The
 Authority concludes that the Respondent, by insisting upon the Union's
 compliance with such previously established and mutually agreed upon
 notification procedures, did not violate section 7116(a)(1) of the
 Statute.  In so concluding, the Authority finds it unnecessary to
 determine whether the Union's non-employee representatives would have
 had an unrestricted right of access to the Respondent's facilities in
 the absence of the agreed-upon procedures /2/ or to pass upon the
 Judge's discussion of private sector cases involving restrictions on the
 access of non-employee union organizers to an employer's property for
 organizational purposes.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 7-CA-591 be, and
 it hereby is, dismissed.  
 
 Issued, Washington, D.C., September 30, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 7-CA-591
    Gavin K. Lodge, III, Esquire
                        For the General Counsel
 
    Luther G. Jones, III, Esquire
    Mr. G. T. Pearson
                        For the Respondent
 
    Before:  WILLIAM B. DEVANEY
                        Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq., /3/ and the Final Rules and Regulations issued thereunder,
 Federal Register, Vol. 45, No. 12, January 12, 1980, 5 C.F.R.Chapter
 XIV, concerns the propriety of a no-access rule for non-employee Union
 representatives and was initiated by a charge filed on May 28, 1980
 (G.C. Exh. 1(a)).  The complaint and notice of hearing issued on August
 29, 1980 (G.C. Exh. 1(c)), pursuant to which a hearing was duly held
 before the undersigned on December 5, 1980, in Denver, Colorado.
 
    All parties were represented by counsel, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, and to
 , introduce evidence bearing on the issues involved, and to present oral
 argument.  At the close of the hearing, by agreement of the parties,
 January 12, 1981, was fixed as the date for mailing post-hearing briefs
 and each party timely mailed a brief, received on or before January 16,
 1981, which 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 and conclusions:
 
                         Findings and Conclusions
 
    The American Federation of Government Employees, AFL-CIO, Local 2865
 (hereinafter, also referred to as the "Union") is the recognized
 exclusive representative of certain employees of Respondent at the Lowry
 AFB Exchange more fully described in the parties' agreement approved
 March 30, 1978 (Res. Exh. 7).
 
    Article VI of the negotiated agreement is entitled "Union
 Representation".  Section 3, pursuant to Section 20 of Executive Order
 11491, as amended, now Sec. 31(b) of the Statute, provides as follows:
 
          "Section 3.  Activities concerned with the internal management
       of employee organizations or membership meetings, solicitation of
       membership, collection of dues, campaigning for employee
       organization offices, and distribution of literature, will be
       conducted during non-duty hours of the employees concerned." (Res.
       Exh. 7, Art. VI, Section 3)
 
 The only provision of the agreement of which I am aware, or which has
 been called to my attention, relating to representatives of AFGE, as
 distinguished from officials of the Union, i.e., Local 2865, is Section
 6 which provides as follows:
 
          "Section 6.  Representatives of the AFGE, upon request, may be
       admitted to exchange facilities, in accordance with applicable
       regulations for the purpose of meeting with Officials of the
       employer during working hours on matters appropriate under E.O.
       11491, as amended." (Res. Exh. 7, Art. VI.  Section 6)
 
 Section 6 states, both clearly and without ambiguity, that AFGE
 representatives, "upon request, may be admitted to exchange facilities .
 . . for the purpose of meeting with Officials of the employer . . . "
 Section 6 does not, by its literal language, address admission of AFGE
 representatives to exchange facilities for any purpose except for
 meeting with officials of the employer.  Stated otherwise, Article VI,
 Section 6 of the negotiated agreement did not authorize admission of
 AFGE representatives to exchange facilities except to meet with
 Officials of the employer.  That AFGE representatives were not
 authorized by the negotiated agreement to enter exchange facilities to
 talk to employees about the internal business of a labor organization,
 including the solicitation of membership, was implicitly acknowledged by
 Mr. Charles W. Carter's letter of April 21, 1980, to Respondent (Res.
 Exh. 8), Mr. Carter being National Vice President, AFGE Thirteenth
 District.  In his letter, Mr. Carter advised Respondent of the
 appointment of Mr. William R. Bleau as a special representative and,
 inter alia,
 
          " . . . requested Mr. Bleau be advised of a neutral place where
       he can meet the employees on their non-work time in or near the
       main exchange and in or near the main cafeteria at the Finance
       Center." (Res. Exh. 8).
 
    On May 1, 1980, a Union-Employer meeting was held and present for the
 Union were:  Ms. Carol Harper, President of Local 2865, and Mr. Bleau,
 AFGE representative;  and present for Respondent were:  Mr. Michael
 Cuzzetto, Exchange Manager, and Ms. Kathy Stanton, Personnel Assistant.
 Minutes of the meeting, initialed by Ms. Harper, show, in material part,
 as follows:
 
          "3.  The meeting had been requested to discuss Mr. Bull's
       request in his letter dated 21 April 1980 /4/ for a neutral place
       where Mr. Bleau can meet the employees on their non-work time.
       That information was provided in writing to Mr. Bleau.  A letter
       was requested from the Union stating specific dates and times for
       the use of this room.
 
                                  * * * *
 
          "5.  In accordance with Article VI, Section 6, representatives
       of the AFGE must request permission from the Exchange Manager
       before going into Exchange facilities.  Mr. Bleau further stated
       he would review with the Exchange Manager items to be posted on
       bulletin boards prior to posting." (Res. Exh. 9).
 
 Ms. Harper stated that the minutes were fully accurate except for the
 words, "request permission from", as to which she testified "we agreed
 to notify" (Tr. 182), i.e., paragraph 5 of the minutes, according to Ms.
 Harper, should have stated, " . . . representatives of the AFGE must
 notify the Exchange Manager before going into Exchange facilities . . .
 " Ms. Stanton testified that the minutes, which she prepared, were
 accurate;  and Mr. Bleau readily acknowledged Mr. Cuzzetto's assertion
 on May 1, that he must abide by Article VI, Section 6 (Tr. 95).  Indeed,
 Counsel for the General Counsel stated, in part, as follows:
 
          "Q (By Mr. Lodge) So, if I can recapitulate, management's
       position was that you had to get some sort of approval from them
       to talk to the employees . . . " (Tr. 69).
 
 However, Mr. Bleau stated,
 
          " . . . management contended that I had to work under the
       provision of Article VI, Section 6 there.  And I told them that
       wasn't my interpretation.  My interpretation was that since I was
       representing the local, I had authorization to go in and fulfill
       the responsibilities under the negotiated agreement.  I didn't
       feel I had to comply with Article VI, Section 6 as such." (Tr.
       68).
 
 Later, Mr. Bleau further stated,
 
          " . . . I also advised them that I was working initially under
       the provisions of Article VII . . . I believe it's Section 1,
       'Publicity' which is negotiated, that it is the Union's
       responsibility to update and maintain the bulletin boards.
 
          "And since I was only trying to do some initial groundwork
       during the first few weeks . . . that was all I was doing was
       going around and taking care of the bulletin boards." (Tr. 95) /5/
 
    A further Union-Employer meeting, requested by Mr. Bleau, was held on
 May 16, 1980, with the same persons present as at the May 1 meeting, and
 the minutes, initialed by Ms. Harper, show, in part, as follows:  /6/
 
          "7.  Mr. Bleau asked Ms. Harper about the message she had
       gotten from Ms. Stanton.  Ms. Stanton had told her that Mr. Bleau
       was not to go in the facilities without permission.  Mr. Bleau
       stated that he intended to go in the facilities whether Mr.
       Cuzzetto liked it or not-- that he does not work for Mr. Cuzzetto
       but for the Union.  If Mr. Cuzzetto wanted to discuss it he could
       put it on the agenda for the next meeting." (Res. Exh. 14).
 
 Mr. Bleau, testified, in part, as follows:
 
          " . . . from my point of view, management was contending that I
       had no right into the facilities.  But it was my interpretation
       that I did not have a right into the facilities without permission
       if I was meeting with officials of the employer.  And I was not
       doing that at the time of my getting acquainted with the people,
       if you will.
 
          "Q Did you at this meeting tell Mr. Cuzzetto that you intended
       to enter the facilities whether he liked it or not?
 
          "A I did.
 
          "Q Did you tell him if he wanted to discuss it further, he
       could put it on the agenda for the next meeting?
 
          "A As a matter of fact, yes, sir, I did.
 
          "Q You were aware, then, at that time that management objected
       to you entering the facilities.  Would that be a fair statement?
 
          "A Sure would be.
 
                                  * * * *
 
          "A As I said, I went to every one.  I left his office and went
       on my grand tour.  I won't lie.  I touched base with every one.  I
       didn't agree with his interpretation of the contract." (Tr.
       99-100).
 
    From the foregoing it is clear, and I conclude as follows:
 
    First, Article VI, Section 6, by its terms, applies to all
 non-employee "Representatives of the AFGE".
 
    Second, Article VI, Section 6 does not authorize admission of AFGE
 representatives to exchange facilities except to meet with officials of
 the employer.
 
    Third, interpretations aside, Respondent advised the Union, and
 specifically Mr. Bleau and Ms. Harper, on various occasions, including
 May 1 and May 16, 1980, that AFGE representatives, and in particular Mr.
 Bleau himself, were not permitted to enter exchange facilities without
 authorization.
 
    Fourth, Respondent contends that the Union, on May 1, 1980, agreed
 that "representatives of the AFGE must request permission from the
 Exchange Manager before going into Exchange facilities", while Ms.
 Harper, whom I found to be a wholly credible witness, testified that "we
 agreed to notify", i.e., that representatives of the AFGE must notify
 the Exchange Manager before going into Exchange facilities.  /7/
 Accordingly I find, as Ms. Harper testified, that the Union agreed on
 May 1, 1980, at the very least, that representatives of the AFGE, which
 all parties understood meant non-employee representatives of the AFGE,
 must notify the Exchange Manager before going into Exchange facilities.
 Although I am aware of the testimony concerning Mr. Bleau's purchase of
 a soft drink, there is no serious doubt that Mr. Bleau fully understood
 that the "no-access" rule without prior notice applied solely to his
 presence in the capacity of a representative of the AFGE.
 
    Fifth, Respondent, as requested, advised the Union of a neutral place
 where Mr. Bleau could meet with employees on their non-work time.
 
    The threshold question is whether Respondent could validly limit
 access to its facilities by non-employee representatives of the AFGE.
 For reasons set forth below, I conclude that it could.
 
    Section 16(a)(1) of the Statute, essentially as does Sec. 8(a)(1) of
 the National Labor Relations Act, /8/ provides as follows:
 
          Sec. 7116.  Unfair labor practices
 
          "(a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          "(1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter."
 
 Of course, the rights protected by Sec. 2 and by Sec. 16(a)(1) of the
 Statute, and by Section 7 and by Section 8(a)(1) of the NLRA, are rights
 of employees.  The distinction was well, and clearly, stated by the
 United States Supreme Court, as respects the NLRA, in NLRB v. Babcock &
 Wilcox Co., 351 U.S. 105 (1956) as follows:
 
          ". . . no restriction may be placed on the employees' right to
       discuss self-organization among themselves, unless the employer
       can demonstrate that a restriction is necessary to maintain
       production or discipline.  Republic Aviation Corp. v. Labor Board,
       324 U.S. 793, 803.  But no such obligation is owed non-employee
       organizers.  Their access to company property is governed by a
       different consideration.  The right of self-organization depends
       in some measure on the ability of employees to learn of the
       advantages of self-organization from others . . . It (the NLRA)
       does not require that the employer permit the use of its
       facilities for organization when other means are readily
       available." (351 U.S.at 113-114).
 
    Although the concept of private property has frequently been referred
 to, which, in a sense is absent as to government property, with all
 deference, I do not believe that private ownership, per se, is now, if
 it ever were, the basis for the rule.  Indeed, the managers of most
 corporations no more own corporate property than managers of government
 property.  In the case of corporations, the true owners are the
 stockholders;  and in the case of government property, the owners are
 the citizens at large.  An employer's facilities generally are not
 freely open to "outsiders", including non-employee Union organizers;
 the only right protected by the NLRA is, as the Supreme Court noted in
 Babcock & Wilcox, supra, the right of employees to learn of the
 advantages of self-organization from others;  and when there are other
 means readily available, the employer is not required to admit the
 non-employee organizer to his facilities.  See, for example, Hudgens v.
 NLRB, 424 U.S. 507 (1976);  Rochester General Hospital, 234 NLRB 253, 97
 LRRM 1410 (1978).  In like manner, government facilities generally are
 not freely open to "outsiders";  the only right protected by the
 Statute, as by the NLRA, is the right of employees to learn of the
 advantages of self-organization from others;  and when there are other
 means readily available, an agency is not required to admit non-employee
 organizers to its facilities.  In Department of the Army, U.S. Army
 Natick Laboratories, Natick, Massachusetts, A/SLMR No. 263, 3 A/SLMR 193
 (1973), Judge Fenton stated in part, that "It is questionable whether
 the accommodation struck between property rights and organizational
 rights in Babcock & Wilcox is appropriate in the federal sector." (3
 A/SLMR at 206);  however, the Assistant Secretary rejected this
 conclusion, stating,
 
          " . . . I reject the Administrative Law Judge's conclusion that
       because of different property rights in the public and private
       sectors, the circumstances in which Government as an employer can
       legitimately bar non-employees from its property or restrict the
       scope of their activities must be far more circumscribed in the
       public sector." (3 A/SLMR at 196 n. 6).
 
    It is certainly true that this case does not involve initial
 organization.  To the contrary, the Union already was the recognized
 exclusive representative and, of course, had a negotiated collective
 bargaining agreement with Respondent.  But, because of flagging
 interest, the National Vice President, Mr. Carter, appointed Mr. Bleau
 to revitalize the Union and to solicit membership.  Mr. Bleau's
 activity, as pertains to this case, concerned solely internal Union
 business and did not involve representational activity.  I reject the
 contention that Mr. Bleau, most assuredly a representative of the AFGE,
 was entitled to the same freedom of access to Respondent's facilities as
 an employee of Respondent would enjoy because he was acting in the
 interest of the Union.  He was, and remained, a non-employee
 representative of the AFGE, and the Statute does not require that
 Respondent permit unrestricted access to its facilities by such
 non-employee representatives for internal Union business if other means
 of communication with employees are readily available.
 
    There can be no possible doubt that other means of communication were
 readily available.  Not only was the Union already the exclusive
 bargaining representative, with its officers and stewards in place, but
 a neutral place on the base, as requested, was available where Mr. Bleau
 could meet employees on their non-work time.  Moreover, Mr. Bleau was
 not denied all access to Exchange facilities but merely was denied
 access to Exchange facilities without authorization by the Exchange
 Manager.  In view of the accommodation made by Respondent for access by
 non-employee representatives of the AFGE to its employees, I find that
 Respondent's rule denying access to Exchange facilities by non-employee
 representatives of AFGE without authorization was a valid and lawful
 policy and its enforcement did not violate Sec. 16(a)(1) of the Statute.
 
    Mr. Bleau, in addition to being a representative of the AFGE, is a
 retired veteran of the Air Force and concedes that he uses his ID card
 to enter the Base (Tr. 71-72).  On May 20, 1980, Mr. Bleau went to the
 Base at about 8:30 or 9:00 a.m. and went to the service station where he
 purchased gasoline.  He talked to the attendant about the Union, said,
 "Well, I can't talk to you on official time.  But what time do you go to
 lunch?  I'd like to talk to you and some of your friends." The attendant
 told him they "break for lunch" at about 11:30.  Mr. Bleau stated that
 he then drove to the back of the garage;  that he got out of his Jeep
 and entered one of the open bays and walked over to an employee who was
 working in one of the bays, Mr. Michael Castille;  introduced himself as
 a Union representative;  gave Mr. Castille a pencil holder with the
 Union logo (Res. Exl. 1);  and told Mr. Castille he would like to talk
 to him during his lunch break and asked when that would be.  Mr.
 Castille told him it would be after his last car, which would be 11:30,
 and when he finished that car he would break for lunch (Tr. 20-21).  Mr.
 Bleau appeared at the parking area adjacent to the lube bays at about
 11:30 and Mr. Castille testified that he saw him but continued working
 until he finished (Tr. 22) at which point, Mr. Castille stated that he
 asked Craig Canady and Keith Miller to step out with him to see what Mr.
 Bleau had to say.  Mr. Bleau testified that after he parked his Jeep, he
 returned to the lube bay and asked Mr. Castille if he were ready yet,
 but Mr. Castille said, "No, man, I have to finish my job," whereupon he,
 Bleau, had gone back to his Jeep and sat on the hood and in a few
 minutes "those guys" came out.  Mr. Castille introduced Canady and
 Miller and shortly thereafter Ms. Scott came out and "told Mr. Bleau he
 was supposed to call Mr. Cuzzetto at headquarters office before coming
 over to the station" (Tr. 23).  Mr. Castille continued, stating, in
 part, as follows:
 
          "And Mr. Bleau began to talk.  And his voice got very loud in
       the process, some language used in there.  And it just sort of got
       out of hand.
 
          "Q What was he saying to her?
 
          "A He said something about, 'Hey, lady.' And there was a little
       cursing in there too.  But she was trying to explain to him that
       he had to call the headquarters office.
 
          "Q Did he say anything to her about you men being on your lunch
       hour?
 
          "A Yes, he did, I think.  He did say that.
 
                                  * * * *
 
          "A That is our own time, the break.
 
          "Q How do you know that?
 
          "A It has been mentioned to me.
 
          "Q By who?
 
          "A Mrs. Scott told me.
 
          "Q That the time on your lunch hour is your own time?
 
          "A That is your individual time.
 
          "Q All right.  So Mr. Bleau and Mrs. Scott were having this
       argument.  What happened at that point?  Had she said anything to
       you and Mr. Miller and Mr. Canady about getting inside the garage?
 
          "A She asked us back in the shop.  And that was when she was
       explaining to him about the procedure you had to go through.
 
          "Q Did you say anything to her about being on your lunch hour?
 
          "A When she started mentioning procedure, I sort assumed that
       it was wrong.  So, we got together and left.  (Tr. 23-24).
 
 I found Mr. Castille's testimony wholly credible and, accordingly, I
 fully credit his testimony.  Mr. Bleau's assertion that he was assaulted
 by Ms. Scott is as ludicrous as it is unsupported by the evidence.  Mr.
 Bleau admitted that he spit in her face, which he asserted was
 accidental and resulted from caps on his teeth (Tr. 79), and if Mrs.
 Scott raised her arm to protect herself and touched Mr. Bleau's arm as
 she testified (Tr. 42, 49), it certainly did not rise to the level of
 constituting an assault.
 
    There is no doubt that Ms. Scott told Mr. Bleau that he was not
 permitted on the premises to talk to employees without authorization and
 that she told him to leave;  that he refused to leave;  and that she
 told Mr. Luis F. Castro-Calderon to call the Air Police.  With respect
 to a conversation she had with Mr. Miller, Ms. Scott very credibly
 testified as follows:
 
          "Q (By Mr. Lodge) Did you have a conversation with Keith Miller
       later that day or the next day talking about unions on Air Force
       bases?
 
          "A He asked me if Unions could come on Air Force bases.  And I
       told him, yes, but they had to have prior authorization from the
       office, and we had to receive a telephone call before they came to
       talk to the employees.
 
          "Q You didn't say anything about them not being authorized at
       all?
 
          "A No." (Tr. 43).
 
 Not only do I find Ms. Scott a wholly credible witness, but her
 testimony in this regard was fully consistent with all other testimony,
 including Mr. Castille's testimony as to her statement to Mr. Bleau;
 her testimony as to Mr. Cuzzetto's instructions, given at a managers'
 meeting in early May, 1980 (Tr. 37;  see, also Tr. 163);  and the
 conceded notice given by Mr. Cuzzetto at the Union-Employer meetings on
 May 1 and 16, 1980.  Mr. Miller did not testify and his proffered
 affidavit was rejected at the hearing, a ruling which I expressly
 reaffirm.
 
    I did not find convincing Mr. Bleau's testimony that he called the
 Exchange Manager's office on May 20, 1980, and therefore so not credit
 his testimony in this regard.  Ms. Stanton very credibly testified that
 neither she nor, to her knowledge, Mr. Cuzzetto was advised of any such
 call;  Mr. Bleau's statement on May 16, 1980, and his admitted action on
 that date negate his having given notice on May 20;  and, even more
 significant, Mr. Bleau at no point on May 20 in his "discussion" with
 Ms. Scott asserted that he had notified the office of the Exchange
 Manager.  Moreover, even if he had, contrary to my finding, called the
 office of the Exchange Manager, obviously, he had received no
 authorization from the Exchange Manager to enter facilities of the
 Exchange, which was the rule, or policy, of Mr. Cuzzetto, as Mr. Bleau
 admits, was plainly stated to the Union, and to Mr. Bleau, at least on
 May 1 and on May 16, 1980.
 
    The allegation of the Complaint that Ms. Scott, "(a) told unit
 employees on their lunch break to get back to work and not to talk to a
 union representative-- May 20, 1980" (G.C. Exl. 1(c), par. 4(a)), is not
 supported by the evidence.  Rather, the evidence shows that Ms. Scott
 told Mr. Bleau that he was not permitted on the premises without prior
 authorization, that she told Mr. Bleau to leave.  The issue, and the
 subject of this litigation, was, plainly, whether a non-employee
 representative of the AFGE could be denied access to Exchange facilities
 without prior authorization of the Exchange Manager.  For reasons set
 forth above, I have found that Respondent's limited "non-access rule" to
 Exchange facilities without prior approval of the Exchange manager was
 valid and Respondent's enforcement of said rule, by Ms. Scott on May 20,
 1980, did not violate Sec. 16(a)(1) of the Statute.  /9/ Her asking the
 employees to go back to the shop "when she was explaining to him (Bleau)
 about the procedure" was incidental to the central and controlling
 issue, namely Mr. Bleau's presence at Exchange facilities without
 authorization.  Employees are free to use their break time as they see
 fit, Charleston Naval Shipyard, A/SLMR No. 1, A/SLMR 27 (1970);  Federal
 Energy Administration, Region VI, Atlanta, Georgia, A/SLMR No. 541, 5
 A/SLMR 509 (1975);  Department of the Air Force, Offut Air Force Base,
 A/SLMR No. 784, 7 A/SLMR 61 (1977);  Oklahoma City Air Logistics Center
 (AFLC) Tinker Air Force Base, Case No. 6-CA-175 (ALJ, May 23, 1980);
 but the issue here was not their freedom to talk to Mr. Bleau, rather,
 it was Mr. Bleau's right to be present on Exchange facilities without
 authorization.  Such technical interference by Ms. Scott with the
 freedom of employees to remain in the parking area was insufficient to
 constitute a violation of Sec. 16(a)(1).
 
    Accordingly, having found, for reasons set forth above, that
 Respondent did not violate the Statute by enforcement of its limited
 "no-access rule" by non-employee representatives of the AFGE to enter
 Exchange facilities without prior authorization of the Exchange Manager,
 I recommend that the Authority adopt the following:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT the Complaint in Case No. 7-CA-591 be, and
 the same is hereby, dismissed.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
 Dated:  June 25, 1981
          Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter(.)
 
 
    /2/ In any event, as the Authority has previously found, a union may
 waive its rights under the Statute by clear and unmistakable conduct.
 See, e.g., Nuclear Regulatory Commission, 8 FLRA No. 124 (1982).
 
 
    /3/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Sec. 7116(a)(1) will be referred to, simply, as
 "16(a)(1)".
 
 
    /4/ Mr. Kenneth J. Bull is AFGE National Representative and a copy of
 Mr. Carter's letter of April 21, 1980, was shown as having been sent to
 him;  however, the request referred to was, actually, made by Mr. Carter
 as noted above.  See Respondent's Exhibit 8.
 
 
    /5/ However, the following colloquy immediately followed:
 
          "Q (By Mr. Jones) I somehow thought your purpose of being there
       was to revitalize the Union and solicit membership.
 
          "A You thought right, sir . . . " (Tr. 95).
 
 
    /6/ Paragraph 5 detailed discussion of the "neutral meeting area."
 
 
    /7/ I express no opinion with respect to Article VII, Section 1.
 This is not an allegation of the Complaint;  the minutes of the May 1,
 1980, meeting show specific reference to discussion of bulletin boards;
 and the record shows overwhelmingly, notwithstanding Mr. Bleau's
 assertion to the contrary, that he did not limit his activities to
 "policing" bulletin boards.  To the contrary, the record shows that Mr.
 Bleau, as he preferred to term his activities, sought to be "acquainted
 with the people" and that he solicited Union membership.
 
 
    /8/ Section 8(a)(1) provides as follows:
 
          "Sec. 8(a) It shall be an unfair labor practice for an
       employer--