24:0943(92)CA - Commerce, Bureau of Census and Edward Hanlon -- 1986 FLRAdec CA



[ v24 p943 ]
24:0943(92)CA
The decision of the Authority follows:


 24 FLRA No. 92
 
 DEPARTMENT OF COMMERCE 
 BUREAU OF CENSUS
 Respondent
 
 and
 
 EDWARD HANLON
 Charging Party/Individual
 
                                        Case No. 3-CA-50375
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This case comes before the Authority as the result of exceptions
 filed by the General Counsel to the Administrative Law Judge's Decision
 in which he found that the Respondent did not violate section 7116(a)(1)
 of the Federal Service Labor-Management Relations Statute (the Statute).
  The Respondent filed an opposition to the General Counsel's exceptions.
  The issue in this case is whether Respondent violated section
 7116(a)(1) of the Statute by refusing to grant the Charging Party, Mr.
 Edward Hanlon, permission to set up employee-owned tripods during
 nonwork time in nonwork areas in order to disseminate information
 related to a labor organization.  For the reason stated below, we find
 no merit to the complaint.
 
                                II.  Facts
 
    The facts are fully set out by the Judge and are not in dispute.  On
 June 7, 1985, the Charging Party, by memorandum addressed to the
 Respondent's Labor Relations Officer, sought permission to set up
 employee-owned tripods in four nonwork areas in Respondent's Suitland,
 Maryland facilities for the purpose of displaying messages to other unit
 employees concerning a labor organization.  The memorandum noted that
 the request was being made by and for unit employees, but was not made
 by or as an agent for any union.  The Charging Party's request was
 denied by the Respondent by a memorandum also dated June 7, 1985.  The
 Respondent has granted permission to use tripods in nonwork areas only
 to agency officials, and to recognized or established employee groups,
 including recognized labor organizations, to disseminate information
 relating to group-sponsored activities.  Requests by individuals have
 not been approved and no past practice has developed which would extend
 such a right to individual employees.  /1/
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that the Charging Party sought permission to utilize
 the Respondent's space or facilities for the purpose of setting up
 temporary displays and that the facts in the case were clearly
 distinguishable from situations involving employee rights to distribute
 literature to other employees in nonwork areas during nonwork times.  As
 the tripods were to be used for the purpose of posting notices, the
 Judge determined that the Charging Party's request was analogous to a
 request to use agency bulletin boards.  Relying in part on the
 Authority's decision in Federal Election Commision, 20 FLRA No. 3
 (1985), and Department of Defense, Department of the Air Force, 31st
 Combat Support Group, Homestead Air Force Base, 13 FLRA 239 (1983), the
 Judge reasoned that since employees do not have a statutory right to
 post material on agency bulletin boards or a general statutory right to
 post material in other public areas on agency property, the Charging
 Party in this case did not have a statutory right to set up tripods on
 the Respondent's premises.  The Judge specifically rejected the
 contention of the Counsel for the General Counsel that as a bargaining
 unit employee the Charging Party had a right under section 7102 of the
 Statute to set up tripods in the Respondent's nonwork areas.
 
    The Judge also rejected the contentions of the Counsel for the
 General Counsel that a right had developed as a result of past practices
 which entitled the Charging Party to set up the tripods and that the
 Respondent had discriminatorily refused the Charging Party's request.
 Noting that the record in the case reflected just the opposite, the
 Judge found that it was clearly established that individual use of
 tripods had always been prohibited as a matter of policy under rules
 promulgated by the Respondent.  The Judge found that the Respondent's
 denial of the Charging Party's request was based on the need to prevent
 indiscriminate use of tripods on its premises by 3,000 individual
 employees.  The Judge found that among the relevant factors considered
 by the Respondent were the best utilization of its facilities, services
 and managment resources.  The Judge concluded that there was no evidence
 that the Respondent's policy was applied to the Charging Party in a
 discriminatory manner.
 
    The Judge also noted that the Respondent was concerned about its
 obligations under the Statute to American Federation of Government
 Employes, Local 2782, the exclusive representative of all the employees
 in the bargaining unit, and the possible violation of sections
 7114(a)(1) and 7116(a)(8) of the Statute if it granted the Charging
 Party's request on behalf of the group of employees mentioned in his
 memorandum.  The Judge concluded that those circumstances reflected an
 additional legal basis for denying the Charging Party's request.  The
 Judge concluded that the Respondent did not act improperly in refusing
 to grant the Charging Party's request and, therefore, that denial of the
 request did not constitute an unfair labor practice.
 
                       IV.  Positions of the Parties
 
    The General Counsel contends that the Judge erred in finding that the
 case involves the right of employees to use agency facilities and that
 the setting up of employee-owned tripods constitutes use of agency
 facilities.  The General Counsel argues that the case involves the right
 of employees to engage in solicitation or the distribution of literature
 during nonwork time in nonwork areas which are protected activities
 under section 7102 of the Statute.  The General Counsel also contends
 that the Judge should have found the Respondent's rules governing tripod
 use to be overly broad and discriminatory.
 
    In opposition, the Respondent argues that the Judge correctly
 concluded that the case involves issues of the right of an agency to
 restrict the use of its facilities and the right of an individual
 employee to use those facilities rather than an issue of an employee's
 right under section 7102 to solicit and to distribute literature.
 Further, the Respondent argues, in agreement with the Judge, that the
 Respondent's rule governing the use of tripods was proper and was not
 applied disparately to the Charging Party.  The Respondent also contends
 that the Judge correctly found that section 7114(a)(1) of the Statute
 provided additional legal justification for the Respondent's denial of
 the Charging Party's request and notes the absence of an exception to
 this finding and conclusion of the Judge.  The Respondent requests that
 the Authority adopt the Judge's decision in its entirety and dismiss the
 General Counsel's exceptions.
 
                               V.  Analysis
 
    In agreement with the Judge and based on his rationale, we find that
 the Respondent was under no obligation to grant the Charging Party's
 request and that its refusal was not violative of section 7116(a)(1) of
 the Statute.  While section 7102 of the Statute gives each employee the
 right to form, join, or assist a labor organization, individual
 employees do not have any general statutory right to post material in
 public areas on agency property.  Authorization to post material is a
 matter of agency discretion.  For example, Federal Election Commission
 and Homestead Air Force Base, cited by the Judge.  In adopting the
 Judge's findings and conclusions, we note particularly that:  (1) it was
 not shown that the Charging Party was acting in other than an individual
 capacity;  (2) setting up tripods for the display of notices involves
 the use of agency facilities for that prupose;  (3) there was no past
 practice of allowing individuals to use agency facilities or space to
 set up tripods for any purpose;  (4) on the contrary, the use of tripods
 by individuals was prohibited as a matter of published policy;  (5) the
 policy was not applied to the Charging Party in a discriminatory manner;
  and (6) the Charging Party's request was denied based on the
 Respondent's determination as to the best use of its facilities,
 services and management resources and concern for its obligations under
 the Statute to the exclusive representative of the employees in the
 unit.  /2/ In view of those circumstances, we find that the Charging
 Party did not have a right to set up tripods on the Respondent's
 premises and the Respondent did not commit an unfair labor practice by
 denying him permission to do so.
 
                              VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and therefore, affirms the rulings.  The Authority has
 considered the Judge's Decision, the positions of the parties and the
 entire record, and adopts the Judge's findings, conclusion and
 recommended Order.  We therefore conclude that the Respondent did not
 violate section 7116(a)(1) of the Statute by refusing to grant
 permission to the Charging Party to set up tripods during nonwork time
 in nonwork areas in order to disseminate information related to a labor
 organization.
 
                                   ORDER
 
    The complaint in Case No. 3-CA-50375 is dismissed.
 
    Issued, Washington, D.C., December 31, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-50375
 
    DEPARTMENT OF COMMERCE BUREAU OF CENSUS
         Respondent
 
                                    and
 
    Edward Hanlon
         Charging Party/Individual
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 
    LOCAL 2782, AFL-CIO
         Amicus Curiae
 
 
    C. J. Schmidt, Esquire
    For the Respondent
 
    Patricia E. Dratch, Esquire
    Bruce D. Rosenstein, Esquire
    For the General Counsel
 
    Mr. Edward Hanlon
    For the Charging Party
 
    William J. Stone, Esquire
    Dale Jacobson, Esquire
    For Amicus Curiae
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
 "the Statute"), and the Rules and Regulations issued thereunder.
 
    The complaint as amended at the hearing alleged that the Department
 of Commerce, Bureau of Census, violated Section 7116(a)(1) of the
 Statute on or about June 7, 1985, by reason of Respondent's refusal to
 grant the Charging Party, Mr. Edward Hanlon, permission "to set up a
 tripod during nonwork time in nonwork areas in order to disseminate
 information related to a labor organization." /3/ It was further alleged
 that Respondent's refusal was in derogation of rights guaranteed by
 Section 7102 of the Statute.
 
    American Federation of Government Employees, Local 2782, AFL-CIO, the
 exclusive representative of employees working at the Bureau of the
 Census moved to intervene as a party at the commencement of the hearing
 on the ground that activity of Mr. Hanlon's depicted in the complaint
 was actually designed as an attack upon Local 2728's representational
 status, and further that the Activity was pursued on behalf of the
 National Treasury Employees Union (NTEU), a rival labor organization.
 Local 2782 has a collective bargaining agreement with the Respondent.
 It will be in effect until July 19, 1987, thus preventing NTEU or any
 other labor organization, from raising a question concerning
 representation and obtaining access to Respondent's facilities for
 purposes of union solicitation, in the absence of NTEU's acquiring
 equivalent status by the timely filing of a petition raising a question
 concerning representation.  Local 2782 alleged further that Mr. Hanlon,
 along with some other bargaining unit members, were working in concert
 with NTEU in an effort to displace Local 2782 as the exclusive
 representative.
 
    Under the provisions of 5 C.F.R. Section 2423.15 of Authority
 regulations any party may move to intervene in a unfair labor practice
 proceeding provided sufficient ground to demonstrate "involvement" in
 the proceeding is established.  Division of Military and Naval Affairs,
 State of New York (Albany, New York), February 11, 1981, Authority Order
 Denying Motion to Intervene and Granting Permission to Submit Arguments
 as Amicus Curiae, Case No. 1-CA-334.
 
    Counsel representing Local 2782 acknowledged that he did not feel
 that the proof would show that Mr. Hanlon was employed by NTEU, or that
 Mr. Hanlon was actually legally associated with NTEU.  On the contrary,
 he indicated that Mr. Hanlon's activity represented "volunterism" and
 that if allowed to intervene, Local 2782, would not call witnesses to
 establish evidence of a relationship between Mr. Hanlon and NTEU.  He
 stated, that if allowed to intervene counsel merely intended to
 participate as an observer (Tr. 7).
 
    Counsel representing the General Counsel opposed the motion on the
 ground that the complaint did not involve Section 7116(a)(3) issues
 relating to protection of a union's exclusive status;  and further that
 the allegations of the complaint posed narrowly limited issues relating
 to the exercise of "individual rights" under Section 7102 of the
 Statute.  Counsel representing the General Counsel advised that no proof
 would be introduced to show that Mr. Hanlon was an agent or a
 representative of NTEU.
 
    Counsel representing the Respondent argued in support of the motion
 to intervene, but indicated that apart from Mr. Hanlon's obvious
 involvement on behalf of NTEU, there was no evidence tending to
 establish that Mr. Hanlon was operating in a representative capacity on
 behalf of NTEU.
 
    On the basis of the foregoing, the motion to intervene was denied on
 the ground that there was no showing of Local 2782's "involvement" in
 the case within the meaning of 5 C.F.R. Section 2423.15.  However, Local
 2782 was granted permission to file a brief as amicus curiae.
 
    The brief filed by Local 2782 following the hearing seeks
 reconsideration of the denial of the motion to intervene, and a
 reopening of the record for the purpose of allowing Local 2782 to
 introduce evidence relating to Mr. Hanlon's relationship with NTEU.
 Counsel notes that full party status for appeal purposes is justified at
 this stage of the proceedings by reason of the record developed during
 the course of the hearing.  However, the nature of the evidence which
 counsel would not introduce is not described, nor does counsel supply
 any basis for the absence of an intent to introduce such evidence when
 the motion to intervene was first made at the hearing.  Furthermore, he
 does not indicate why he did not renew his motion to intervene and
 reopen before the close of the hearing.
 
    Counsel representing Local 2782 argues in his post-hearing brief that
 evidence in the record establishes a formal relationship between Mr.
 Hanlon and NTEU.  However, an examination of the record failed to
 establish that Mr. Hanlon was in fact representing NTEU or fronting for
 NTEU.  Although evidence adduced gives rise to inquiry concerning Mr.
 Hanlon's relationship with NTEU, it falls far short of a showing that
 Mr. Hanlon was acting as a representative of NTEU, or that he was acting
 in any capacity other than that of an interested bargaining unit member.
  For the reasons outlined the motion to intervene and reopen the record
 is denied.
 
    Based upon the entire record herein, including exhibits, arguments
 made during the hearing, and briefs filed by the parties, I make the
 following findings of fact, conclusions and recommendations.  /4/
 
                              Finding of Fact
 
                            Basis of Complaint
 
    The complaint is based upon the Respondent's denial of a June 7, 1985
 memorandum request addressed by Mr. Hanlon to Ms. Colleen Woodard,
 Respondent's Labor Relations Officer.  The request sought permission to
 set up employee owned tripods /5/ in four nonwork areas in Respondent's
 Suitland, Maryland facilities for the purpose of displaying "messages to
 other unit employees about Section 7102 activities." (Jt. Exh. No. 1).
 /6/ The memorandum notes that the request submitted was being "made by
 and for unit employees," but explained that it was "not made for, by or
 as agent of any Union, Union entity, Union organization, Union Local or
 Union National." The request asked that the "employees" seeking
 permission be allowed to set up their tripods beginning on Monday
 morning June 10, 1985, so that other unit employees might be informed
 "about Section 7102 meetings" scheduled to be held that week.
 
    The June 7th request was received by Ms. Woodard from Mr. Hanlon on
 the same date (Tr. 60).  The request was routed to her office because
 the Labor Relations Office had sole authority to consider such requests
 relating to union activities (Tr. 69).  Her denial, also dated June 7,
 1985 was not received by Mr. Hanlon until Monday, June 10th.  Ms.
 Woodard made an unsuccessful effort to effect delivery of the denial on
 Friday, June 7th but Mr. Hanlon was not then available (Jt. Exh. No. 2,
 Tr. 23-24, 30, 60).
 
    Although Mr. Hanlon's request sought permission for use of the
 tripods commencing on Monday morning, June 10th, and although he had not
 received Respondent's reply, he prematurely erected a tripod on Sunday
 evening, June 9th in one of the four locations designated in his
 memorandum request (Tr. 24, 30-31).  The message posted on the tripod
 announced "a meeting for employees to attend . . . to discuss union
 activities and to discuss among ourselves reaffiliation with another
 union." (Tr. 28).  At about 8:30 A.M. on Monday, June 10, the tripod was
 confiscated by a representative of Respondent's Security Office (Tr.
 24-25).  It was returned to Mr. Hanlon only after he agreed in writing
 to refrain from using the tripod again without permission.
 
                Respondent's Policy Relating to Tripod Use
 
    Ms. Woodard's denial of the request was based upon the difficulty
 posed in extending the right to erect tripods to some 3,000 employees
 located at Respondent's facilities in Suitland, Maryland;  upon
 Respondent's conclusion that the best use of Bureau facilities,
 services, and management energy would not be served by extending the
 right to erect tripods to such a large group of individuals;  and upon
 elements relating to the possibility of Respondent having to deal with
 similar requests from such a large group of employees (Tr. 68-70).  A
 key factor entering into Respondent's evaluation of the request related
 to existing policy extending such a right only to a limited number of
 recognized employee organizations, as distinct from individual requests
 for such permission (Tr. 89, 91).
 
    The record clearly established that the Respondent has, upon receipt
 of applications, extended the right to use tripods in nonwork areas only
 to agency officials, and to recognized or established employee groups,
 including recognized labor organizations, to disseminate information
 relating to group sponsored activities (Tr. 43, 68).  Requests made by
 individuals have not been approved, and no past practice has developed
 which would extend such a right to individual employees (Tr. 68, 89-90).
  /7/
 
    The authority to permit the use of tripods within the context of the
 policy outlined was conferred upon Ms. Woodard, the Respondent's Labor
 Relations Officer, insofar as the policy related to tripod use by labor
 organizations or in connection with labor relations matters (Tr. 49-50,
 56-57).  Implementation of the policy outlined and the processing of
 requests for tripods other than those dealing with labor relations
 matters has been handled by Respondent's Employees Services and
 Performance Management Branch (Tr. 42-43).  The latter office deals with
 a wide range of identifiable employee groups (other than labor
 organizations) having occasion to utilize tripods to disseminate
 information.
 
    Respondent's policy concerning the use of tripods in the manner
 sought herein is not set out specifically in rules or regulations.
 However, it is based in large measure on a provision reflected in
 Chapter K 15 of the Bureau of Census Administrative Manual, entitled
 "Use of Bulletin Boards and Distribution of Printed Material" (R. Exh.
 No. 1;  Tr. 44-45, 90-91).  Section 4.02 of the manual provides:
 
          4.02 Control
 
          The Chief, Administrative Services Division in consultation
       with the Chief, Personnel Division shall maintain necessary
       controls to assure compliance with this directive.  Material which
       is unauthorized or improperly posted will be removed from official
       boards or any other place within Census occupied space.  Improper
       posting of materials will be made the subject of appropriate
       disciplinary action (emphasis added).
 
    Respondent considered tripods a form of bulletin board, and relied
 upon language in Section 3, of Chapter K 15 to limit tripod use to
 "employee groups" only (Tr. 51-52).  That is, the right to post on
 official bulletin boards was, under Chapter K 15, limited to employee
 groups or employee organizations.  This rule was extended and made
 applicable to tripod use (Tr. 53, 62).
 
    Respondent's limitation of the right to use tripods to employee
 groups included recognized employee groups meeting specific requirements
 set out in Department of Commerce Administrative Order 202-707, entitled
 "Voluntary Employee Organizations," and labor organizations (Tr. 43,
 52-53).  A witness testifying for Respondent stated:
 
       . . . we can't allow willy-nilly any person who wishes to do
       something to put things anyplace in the Bureau . . . . (Tr. 52).
 
    Mr. Hanlon's request did not emanate from a previously recognized
 employee group or from a labor organization having a legal right to set
 up tripods, and did not for these reasons, meet Respondent's established
 criteria.
 
                      Hanlon's Relationship with NTEU
 
    As of the date of the hearing Mr. Hanlon was merely a member of Local
 2782.  He held no official position with Local 2782 (Tr. 23).  Mr.
 Hanlon had, in the past, served as President of Local 2782, and as the
 Local's Chief Steward.  /9/ Ms. Woodard's testimony reflects an effort
 on the part of the Respondent to ascertain the precise relationship
 between Mr. Hanlon and NTEU inasmuch as Respondent's efforts to
 facilitate Mr. Hanlon's activity on behalf of NTEU could conceivably be
 characterized as an unfair labor practice within the purview of
 7116(a)(3) if Mr. Hanlon's conduct involved fronting for NTEU in an NTEU
 effort to unseat Local 2782.  /7/
 
    The record did disclose some contact between Mr. Hanlon and an NTEU
 organizer (Tr. 61, 63), and also indicated an effort on the part of Mr.
 Hanlon to show an NTEU film (R. Exh. No. 4;  Tr. 64-65).  The proof
 adduced evidences Mr. Hanlon's strong interest in enhancing NTEU's
 credibility among Local 2782's bargaining unit members.  However, the
 proof falls far short of establishing that Mr. Hanlon was "fronting,"
 for NTEU, or that he was actively working as an agent or representative
 of NTEU in efforts to introduce NTEU to bargaining unit members.
 
                      Conclusions and Recommendations
 
    The specific conduct condemned in the complaint relates to
 Respondent's refusal to grant Mr. Hanlon permission "to set up a tripod
 during nonwork time in nonwork areas in order to disseminate information
 related to a labor organization." It does not deal with the question of
 whether or not literature may be distributed during nonwork time in
 nonwork areas.  The complaint, as phrased, is limited solely to the
 issue of whether Mr. Hanlon had a legal right to erect a tripod in
 certain nonwork areas for the purpose of disseminating "information
 related to a labor organization."
 
    Proof adduced reflected that the request actually transmitted to the
 Respondent was broader in nature than the request described in the
 complaint.  On behalf of other employees, Mr. Hanlon sought permission
 to set up an undisclosed number of employee-owned tripods in four
 nonwork areas.  The exact size and description of the tripods in
 question was not disclosed in the record.  However, it did appear that
 the equipment described was portable in nature, and had the capability
 of being easily erected and taken down.  There is no indication of the
 exact amount of space that one tripod would occupy.  There is no
 indication of the total amount of space, or location of the space, that
 all of the tripods in issue would have occupied, nor is the period of
 such occupation reflected.  It is apparent that the request is a
 petition for agency space to be utilized for the purpose of erecting
 tripods designed to be used for the posting of notices.
 
    The Authority has made it clear that the use of agency facilities by
 a union is a privilege and not a right.  United States Nuclear
 Regulatory Commission, 6 FLRA 18 (1981);  Arkansas Army National Guard,
 1 FLRA 877 (1979);  Headquarters, 2750th Air Base Wing, U.S. Air Force,
 Wright-Patterson Air Force Base, Ohio, 1 FLRA 864 (1979).  This case is
 clearly one involving a request for permission to use specific areas for
 the purpose of erecting temporary displays, or in other words it is a
 specific request to utilize agency space or facilities exclusively for a
 particular purpose.  As noted, the facts are clearly distinguishable
 from those in involving the right of employees to hand out literature to
 fellow employees in nonwork areas during nonwork time.
 
    In Department of Defense, Department of the Air Force, 31st Combat
 Support Group, Homestead Air Force Base, 13 FLRA 239 (1983), the
 Authority held that neither a union nor an employee has a statutory
 right of access to agency bulletin boards, and that permission to post
 material may be subject to restrictions or limitations.  /10/ The
 Charging Party's efforts to obtain the use of tripod space for posting
 notices is analogous to an effort to obtain permission to use an
 employee's bulletin boards, and thus the rule enunciated would be
 applicable here.
 
    It is not contended here that the right to use tripods emanates from
 a collective bargaining agreement.  Instead it is asserted that the
 right stemmed from past practice, and it is contended that Respondent
 discriminatorily refused to permit such use.  However, the record
 developed reflects the very opposite.  Rules administered by the
 Respondent operated to deny individuals the right to erect tripods, but
 allowed agency officials and recognized employee groups to use tripods
 under close supervision.  It was clearly established that individual use
 of tripods has always been prohibited.
 
    It cannot be contended that the rules promulgated and administered
 were discriminatory, and it would not be possible to agree with the
 contention of the General Counsel and Charging Party that all bargaining
 unit employees have a legal right to erect tripods in Respondent's
 nonwork areas by reason of rights conferred by Section 7102.
 
    Denial in this case was based upon the need to avoid indiscriminate
 erection of tripods on Respondent's premises by individuals, a practice
 which if allowed would have led, in Respondent's opinion, to requests
 emanating from a group of about 3,000 employees, as compared with the
 much smaller number of recognized employee groups.  Elements relating to
 the best use of Bureau facilities, services and management energy were
 considered relevant factors in the denial, and, as noted, there was no
 evidence that the policy described was implemented by the Respondent in
 a discriminatory manner.
 
    In Federal Election Commission, 20 FLRA 20 (1985), the Authority
 followed the legal principle established in Department of Defense,
 Department of the Air Force, 31st Combat Support Group, Homestead Air
 Force Base, and extended the rule to the posting of material in other
 public areas on agency property.  The following language reflects the
 Authority's position:
 
       Since unions nd employees do not have a statutory right to post
       material on bulletin boards, it follows that there is no general
       statutory right to post material in other public areas on agency
       property.  Thus, access to bulletin boards or to other public
       areas for posting material remains a matter within an agency's
       discretion to authorize, either by way of provision in the
       parties' negotiated agreement or as a matter of past practice in
       allowing such access to its employees.
 
    The record herein reflects no basis for concluding that the
 Respondent acted improperly in refusing to grant the Charging Party's
 request, and thus, denial of the request did not constitute an unfair
 labor practice.  /10/ Accordingly, it is recommended that the Authority
 issue the following Order pursuant to 5 C.F.R. Section 2423.29.
 
                                   ORDER
 
    IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-50375, be,
 and hereby is, dismissed.
 
                                       /s/ LOUIS SCALZO
 
    Dated:  March 19, 1986
    Washington, D.C.
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) According to the Judge, the record in this case suggested that
 occasionally an individual employee might be allowed, for humanitarian
 reasons, to "put up" material.  The Respondent granted permission to one
 employee to post information in the facility concerning the employee's
 missing niece.  The Judge noted, however, that there was no indication
 in the record that any individual employee was permitted to erect a
 tripod on the Respondent's premises.
 
    (2) As the Judge found:  "The record clearly established that the
 Respondent has, upon receipt of applications, extended the right to use
 tripods in nonwork areas only to agency officials, and to recognize
 labor organizations, to disseminate information related to group
 sponsored activities . . .  Requests made by individuals have not been
 approved, and no past practice has developed which would extend such a
 right to individual employees(.)" Decision of the Judge at 5-6.
 Further, the Respondent could not lawfully permit a labor organization
 other than the exclusive representative to obtain access to its
 facilities for solicitation purposes unless that labor organization had
 achieved equivalent status.  See Department of Health and Human
 Services, Health Care Financing Administration 18 FLRA No. 59 (1985),
 remanded on other grounds, American Federation of Government Employees
 v. FLRA, 793 F.2d 333 (D.C. Cir. 1986).
 
    (3) The complaint was amended to correct a typographical error which
 indicated that Mr. Hanlon filed the charge herein on behalf of a union
 rather than as an individual employee.
 
    (4) Counsel representing the Respondent moved to correct errors in
 the hearing transcript.  Under authority reflected in 5 C.F.R. Section
 2423.19(r), the proposed corrections are approved.
 
    (5) The tripods referred to were devices regularly used for
 displaying posters and announcements.
 
    (6) Among other things Section 7102 of the Statute provides that
 "(e)ach employee shall have the right to form, join, or assist any labor
 organization, or to refrain from any such activity, freely and without
 fear of penalty or reprisal, and each employee shall be protected in the
 exercise of such right . . . . (emphasis added)."
 
    (7) At one point the record did suggest that occasionally an
 individual might "for humanitanian reasons" be allowed to "put up"
 material.  This was illustrated by the example of a woman whose niece
 was missing, and who wanted "to put some material up on that subject."
 (Tr. 55).  There was no indication that this category related to grants
 of authority to individuals to erect tripods on Respondent's premises.
 The testimony merely referred to Respondent's authorization to post
 relevent information concerning the missing niece, and made no reference
 to the utilization of tripods by individuals seeking to disseminte
 information.
 
    (8) Mr. Hanlon testified that he has been named in impeachment
 proceedings at the national level of the American Federation of
 Government Employees, and that as of that date of the hearing these
 proceedings were pending against him (Tr. 32).
 
    (9) By memorandum dated May 30, 1985 addressed to Ms. Woodard, Mr.
 Hanlon announced that he and other bargaining unit employees would, over
 the course of several weeks, be distributing literature in nonwork areas
 during nonwork time (R. Exh. No. 5;  Tr. 70-71).  Ms. Woodard responded
 on May 31, 1985, noting Mr. Hanlon's activity on behalf of NTEU, and
 Respondent's obligations under the Statute to prevent solicitation by
 any labor organization without equivalent status (R. Exh. No. 6;  Tr.
 71-72).  Ms. Woodard's reply sought clarification of Mr. Hanlon's intent
 with regard to literature distribution, and clarification of his
 relationship with NTEU (Tr. 73).
 
    In two separate memorandums dated June 5, 1985, Mr. Hanlon disavowed
 association with any union, and stated that he and other bargaining unit
 members were exercising their Section 7102 rights as individuals only,
 and not as representatives of any union (R. Exh. Nos. 3 and 4;  Tr. 61,
 63-64).
 
    As a result of the June 5th memorandum, Respondent treated Mr.
 Hanlon's June 7, 1985 request as a request filed by an individual (Tr.
 67-68, 73).  The record as a whole tends to reflect that Respondent
 continued to question and distrust Mr. Hanlon's representations
 concerning his relationship with NTEU, as Respondent continued inquiry
 into the subject even after receipt of the June 5th memorandums (Tr.
 74).
 
    (10) However, the Authority has ruled that the right of access to a
 bulletin board may arise from a negotiated agreement or a "past
 practice" allowing the union or individuals to post material on bulletin
 boards.  Department of Labor, Office of Workers' Compensation Programs,
 Branch of Special Claims, 11 FLRA 77 (1983).  See also U.S. Department
 of Justice, Federal Prison System, Federal Correctional Institution,
 Milan, Michigan, 17 FLRA 1023 (1985).
 
    (11) Neither the General Counsel, nor the Charging Party contended
 that Mr. Hanlon was seeking permission on behalf of a recognized
 employee group.  It was contended throughout that Mr. Hanlon sought
 permission as an individual employee seeking to exercise Section 7102
 rights.  This contention is refl