19:0322(45)AR - Labor and National Council of Field Labor Locals, AFGE -- 1985 FLRAdec AR

[ v19 p322 ]
The decision of the Authority follows:

 19 FLRA No. 45
                                            Case No. O-AR-846
    This matter is before the Authority on an exception to the award of
 Arbitrator Martin Lubow filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
    The grievance in this case concerned the Agency's obligation to
 distribute Union materials through the internal mail system under the
 terms of the parties' collective bargaining agreement.  As part of the
 grievance, the Arbitrator addressed the issue of "(t)o what extent must
 the (Agency) accept obviously 'political' material for (d)istribution."
 In this respect, the Arbitrator, for example, questioned whether the
 Agency would have to accept for internal mail distribution a union
 leader "endorsement of an opposition candidate for president or urg(ing
 of) the defeat of a particular Congressman." Pursuant to his application
 of the terms of the parties' agreement, the Arbitrator ruled that these
 and similar such matters must be accepted by the Agency for distribution
 and that "political" matters have not been barred from distribution in
 this context.  Accordingly, in this respect the Arbitrator ordered that
 future submissions shall be evaluated in a manner consistent with these
    In its exception the Agency contends that the award is contrary to
 provisions of the Hatch Act, 5 U.S.C. 7324, /1/ and implementing
 regulations, 5 CFR 733.  In support, the Agency principally argues that
 the activity addressed by the Arbitrator in the context of directing
 that associated political materials must be distributed by the Agency is
 partisan political activity proscribed by the Hatch Act and implementing
 regulations and that consequently by directing the distribution of
 materials associated with such activity and similar partisan political
 activity, the award is deficient.  The Authority agrees.
    The Hatch Act, 5 U.S.C. 7321-7327, specifically prohibits certain
 partisan political activity on the part of Federal employees.  U.S.
 Civil Service Commission v. National Association of Letter Carriers, 413
 U.S. 548 (1973).  Among the activities prohibited by the Act are
 "(e)ndorsing or opposing a candidate for public office in a partisan
 election or a candidate for political party office in a political
 advertisement, a broadcast, campaign, literature, or similar material."
 5 CFR 733.122(b)(10).  Because the Arbitrator in effect has ordered the
 distribution by the Agency of materials associated with such proscribed
 political activity, the Authority finds that the award is deficient
 under the Statute.  Specifically, the Authority concludes that the award
 is deficient as inconsistent with the Hatch Act and implementing
 regulations because it effectively mandates that the Agency use official
 authority to facilitate proscribed political activity and associated
 materials by distributing through the Agency's internal mail system such
 political materials.
    Accordingly, the award is modified by striking the second sentence.
 Issued, Washington, D.C.  July 26, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ 5 U.S.C. 7324 pertinently provides:
          (a) An employee in an Executive agency or an individual
       employed by the government of the District of Columbia may not--
          (1) use his official authority or influence for the purpose of
       interfering with or affecting the result of an election;  or
          (2) take an active part in p