29:0362(39)CA - DOD, Navy, Army Air Defense Center and Fort Bliss, Fort Bliss, TX and NFFE Local 2068 and NAGE Local R14-89 -- 1987 FLRAdec CA



[ v29 p362 ]
29:0362(39)CA
The decision of the Authority follows:


29 FLRA No. 39

UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY
UNITED STATES ARMY AIR DEFENSE CENTER
AND FORT BLISS, FORT BLISS, TEXAS

     Respondent

     and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2068, INDEPENDENT

     Charging Party

     and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-89

     Party In Interest

Case No. 6-CA-60020

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent and the National Association of Government Employees, Local R14-89 (NAGE) to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions. The issue is whether the Respondent violated section 7116(a)(1) and (3) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to provide the Charging Party, National Federation of Federal Employees, Local 2068, Independent (NFFE) with a building for NFFE's use during a representation election campaign. For the reasons stated below, we find, contrary to the Administrative Law Judge, that the Respondent was not required to provide NFFE with a building similar to the one used by NAGE and that the Respondent satisfied the requirements of section 7116(a)(3) of the Statute by offering NFFE the use of customary and routine facilities for use in the campaign. [PAGE]

II. Background

On May 25, 1984, NFFE filed a petition for an election in a bargaining unit of certain employees of the Respondent. At that time, the unit was represented by NAGE. Until on or about October 16, 1984, the Respondent and NAGE were parties to a collective bargaining agreement. After October 16, 1984, and during the pendency of the representation case, the Respondent and NAGE continued to give effect to their agreement. On February 28, 1985, the Regional Director of the Authority approved an agreement for a consent election. On May 8 and 9, 1985, an election was conducted. The results of that election were inconclusive because neither NAGE nor NFFE received a majority of the valid votes cast in the election. The petition for election is presently pending the outcome of a run-off election to determine the exclusive bargaining representative.

Under the collective bargaining agreement between the Respondent and NAGE, the Respondent agreed to provide a building to NAGE for use as a "Union Hall." The building provided for NAGE's use was a one-story, wooden, barracks-type building in the middle of a heavily populated part of the Base. Beginning on or about April 17, 1985, NFFE representatives observed NAGE using the building in connection with its election campaign efforts. In that regard, about 2 weeks before the election, a large banner which read "VOTE NAGE" was placed on the side of the building.

The matter of NAGE's use of the building for campaign purposes was initially raised by NFFE at the consent election meeting in February 1985. Subsequently, and prior to the election, NFFE asked the Respondent to provide it with a building for its campaign. NFFE also asked the Respondent to stop NAGE from using the building in question for campaign activities. The Respondent denied both requests. The Respondent advised NFFE that NAGE had obtained the use of the building through negotiations and that the building was provided by the collective bargaining agreement. The Respondent maintained that it could not restrict NAGE's use of the building for campaign purposes. Additionally, the Respondent advised NFFE that it would not provide NFFE with a building because a building "is not in keeping with what the Statute defines as customary and routine services and facilities." The Respondent did, however, offer NFFE the use of various meeting facilities, including a theater and conference rooms, to use in its campaign effort. NFFE did not avail itself of the offered facilities. NFFE rented an office off Base for its campaign headquarters. [ v29 p2 ]

III. Administrative Law Judge's Decision

The Judge concluded that the Respondent violated section 7116(a)(1) and (3) of the Statute when it refused to provide NFFE with a building to use during the election campaign. In reaching that conclusion, the Judge found that NFFE acquired "equivalent status" within the meaning of section 7116(a)(3) of the Statute when it filed its representation petition and, therefore, that it was entitled to the same "customary and routine services and facilities" the Respondent had furnished NAGE. The Judge noted that the legislative history of section 7116(a)(3) described as an example of customary and routine services and facilities, "providing equal bulletin board space to two labor organizations which will be on the ballot in an exclusive representation election." He concluded that if both unions would be equally entitled to bulletin board space, they were both equally entitled to a building for campaign purposes. The Judge reasoned that the Respondent's contract obligation to provide NAGE with a building was in accordance with its section 7116(a)(3) permission to provide customary and routine services and facilities and that 7116(a)(3) required that NFFE receive the same facilities and services.

The Judge concluded that the Respondent's refusal to provide NFFE with a building violated section 7116(a)(1) and (3) of the Statute. Further in that regard, the Judge rejected the Respondent's contention that the Authority's Regional Office was responsible for any violation because the Region was responsible for supervising the election.

IV. Positions of the Parties

In its exceptions, the Respondent essentially contends that an agency does not have a duty under section 7116(a)(3) of the Statute to provide an equivalent status union the same facilities that an incumbent exclusive representative has acquired through collective bargaining. The Respondent maintains that its obligation was only to provide "customary and routine" facilities. The Respondent argues that the building in dispute in this case was obtained by NAGE through negotiation as the exclusive representative and was provided for under the collective bargaining agreement between itself and NAGE. The Respondent argues that it did not provide NFFE with a building because it did not consider a building a "customary and routine" facility under section 7116(a)(3). The Respondent further contends that it offered NFFE the use of numerous meeting places, but that NFFE never availed itself of any of the offered facilities. [ v29 p3 ]

In its exceptions, NAGE also contends that its use of a building as a union hall was obtained through negotiations and maintains that there is no basis in section 7116(a)(3) for giving an intervenor the same rights that an incumbent exclusive representative has gained through bargaining. NAGE also argues that NFFE was not disadvantaged in this case because the Respondent gave or offered NFFE extensive access to various facilities on the Base and that NFFE had vans with campaign signs displayed riding around the Base 8 to 10 hours a day.

In its exceptions, the General Counsel contends that the Judge correctly found that the Respondent violated the Statute.

V. Discussion

The significant part of the complaint in this case is that the Respondent committed an unfair labor practice by failing to (1) provide NFFE with a building similar to the one used by NAGE or (2) to stop NAGE from using its building for other than representational purposes. The Judge decided this narrow issue, as do we. We find, contrary to the Judge and the General counsel, that the Respondent did not violate section 7116(a)(1) and (3) of the Statute as alleged in the complaint.

Section 7116(a)(3) provides that an agency may, upon request, furnish a labor organization with customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status. Thus, under section 7116(a)(3), if an agency grants a union's request for customary and routine services or facilities in a representation proceeding, the agency must, upon request, provide such services or facilities to another union having equivalent status.

We agree with the Judge that NFFE had equivalent status with NAGE in the representation proceeding. However, NAGE did not request and the Respondent did not grant NAGE the use of a building as a "customary and routine" facility during that proceeding. Rather, the Respondent provided NAGE with the building through the give and take of negotiations with NAGE as the exclusive representative of the unit involved [ v29 p4 ] before NFFE filed its representation petition. NAGE's right to use the building as a "Union Hall" was expressly established in NAGE's collective bargaining agreement with the Respondent before NFFE became a union "having equivalent status."

We can find no compelling indication in the plain language or legislative history of section 7116(a)(3) that an agency is required to furnish a labor organization that has achieved equivalent status with an incumbent union in a representation proceeding with the exact same services and facilities that the incumbent obtained through collective bargaining before the proceeding. On the contrary, it is reasonable to expect that an incumbent labor organization will have acquired some advantages in agency services and facilities over a rival union through collective bargaining. The Statute does not require that an agency equalize their positions upon request of the rival.

The example from the legislative history of section 7116(a)(3) cited by the Judge does not compel a different conclusion. That example, "providing equal bulletin board space to two labor organizations which will be on the ballot in an exclusive representation election(,)" was used to illustrate the kind of customary and routine services and facilities an agency may furnish "when the services and facilities are furnished, if requested, on an impartial basis to organizations having equivalent status(.)" H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 49 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor - Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, at 695 (1979).

We do not believe that a building is the kind of "customary and routine" facility contemplated by Congress in fashioning section 7116(a)(3). But even assuming that a barracks-type building is a customary and routine facility at Fort Bliss, we reemphasize that NAGE did not request and the Respondent did not gratuitously provide NAGE with the building in question during the representation proceeding. NAGE's right to use of the building was established by the previously negotiated agreement. Therefore, the Respondent was under no duty to grant NFFE's request for a similar building. Additionally, we note that the Respondent specifically advised NFFE that it was prepared to provide, upon [ v29 p5 ] request, NFFE and NAGE with various meeting facilities for use in their election campaigns.

Accordingly, we conclude that the Respondent did not violate section 7116(a)(1) and (3) of the Statute as alleged in the complaint.

ORDER

The complaint in this case is dismissed.

Issued, Washington, D.C., September 30, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p6 ]

UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE
ARMY, UNITED STATES ARMY AIR
DEFENSE CENTER and FORT BLISS,
FORT BLISS, TEXAS

     Respondent

     and

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 2068, INDEPENDENT

     Charging Party

     and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-89

     Party in Interest

Case No.: 6-CA-60020

Robert A. Mast, Esq.
         For the Respondent

Henry Mesa
         For the Charging Party

Harry Breen,
         For the Party in Interest

John M. Bates, Esq.
         For the General Counsel of the FLRA

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 [PAGE] U.S. Code, 5 U.S.C. 7101, et. seq., 92 stat. 1191 (hereinafter referred to as the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, 2410 et. seq.

Pursuant to a charge filed on October 16, 1985 by National Federation of Federal Employees, Local 2068, Independent, (hereinafter called NFFE Local 2068, NFFE and Charging Party) against United States Department of Defense, Department of the Army, United States Army Air Defense Center and Fort Bliss, Fort Bliss, Texas (herein called Army and Respondent) on January 31, 1986 the General Counsel of the FLRA by the Director of Region VI issued a Complaint and Notice of Hearing alleging that Respondent violated Sections 7116(a)(1) and (3) of the Statute by permitting National Association of Government Employees, Local R14-89 (herein called NAGE Local R14-89 and NAGE) 1 to use a building for representation election campaign purposes without providing NFFE Local 2068 with the same type facility. Respondent filed a timely Answer denying it had violated the Statute.

A hearing in this matter was conducted before the undersigned in El Paso, Texas. Army, NFFE Local 2068, NAGE Local R14-89 and General Counsel of the FLRA were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered.

Based upon the entire record 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

On May 25, 1984, NFFE Local 2068 filed a petition in Case No. 6-RO-40007 for an election in a bargaining unit of:

All full-time non-supervisory General Schedule Appropriated Fund employees stationed at Fort Bliss, Texas, serviced by the Fort Bliss Civilian Personnel Office, and for whom the Commanding General, U.S. Army Air Defense Center and Fort Bliss, [ v29 p2 ] Fort Bliss, Texas; the Commanding Officer, U.S. Communications Command Agency, Fort Bliss, Texas; and the Commissary Office, U.S. Troop Support Agency, U.S. Army Commissary at Fort Bliss, Texas, have been delegated appointing authority, and excluding all professional employees, management officials, confidential employees, employees of the Fire Prevention and Protection Division, wage Grade employees, employees engaged in Federal personnel work other than in a purely clerical capacity, all temporary employees employed 90 days or less, and supervisors as defined in Executive Order 11491, as amended.

The unit was then represented by NAGE Local R14-89. At the time of the filing of the petition, NFFE Local 2068 acquired equivalent status with NAGE Local R14-89. Thereafter, on February 28, 1985, the Regional Director for the Sixth Region approved an Agreement for Consent or Directed Election, and on May 8 and 9, 1985, an election was conducted at Respondent's facility at Fort Bliss, Texas. The results of the election were inconclusive in that neither NAGE Local R14-89 nor NFFE Local 2068 received a majority of the valid votes cast in the election. The petition for election is presently pending a runoff election to determine the exclusive bargaining representative.

During the second week in April 1985, two of the NFFE representatives, who were to take part in NFFE's election campaign, arrived at Fort Bliss. Louis M. Sinniger, who was to serve as NFFE's campaign coordinator, arrived on April 9, 1985; and Heather Newell, who was to serve as a campaign worker, arrived on April 8, 1985. Subsequently, both Sinniger and Newell had occasion during the first week that they were present at Fort Bliss to observe the building on base that served as NAGE Local R14-89's union hall. NAGE Local R14-89 had acquired Building 901 to use as a union hall pursuant to Article IV, Section 11 of the collective bargaining agreement. The building utilized by NAGE Local R14-89 is a one-story, wood-frame, Army barracks-type building in the middle of a heavily populated part of the base. The building is located on Chaffe Street, which is a four-lane street with fairly heavy traffic since it is one of the main routes for people entering and leaving the base.

During the first week that Sinniger and Newell observed the NAGE building, they noticed very little activity at the [ v29 p3 ] building. The door to the building was usually padlocked; no one was observed entering or leaving the building and, on most occasions, no cars were observed in the parking lot. On a few occasions, Sinniger saw one car parked in the parking lot and noticed that the door to the building was ajar.

However, beginning on or about April 17, 1985, there was increased activity at the NAGE building. At least six NAGE organizers who are not based in El Paso were observed entering and leaving the NAGE building. The organizers who were initially observed were John Carpenter, Steve Pope, Frank Benetis, and Harry Breen. Newell and Sinniger recognized these individuals because they had previously met them during an organizing campaign in California. Later, two NAGE organizers from San Antonio were observed at the NAGE building.

At this same time, the NFFE organizers invariably began to see from five to 10 cars in the parking lot outside the NAGE building. Newell and Sinniger also saw Carpenter, Pope, Benetis and Breen getting in and out of certain cars in the NAGE parking lot and driving these vehicles around the base. Newell and Sinniger wrote down the license plates of these cars and when they later identified these same vehicles parked in the NAGE parking lot they reasonably concluded that the drivers of the vehicles were inside the NAGE building.

Also, approximately two weeks prior to the election a large banner which read "VOTE NAGE" was placed upon the side of the NAGE building which faced Chaffe Street. The banner was placed toward the front of the building and over the first three windows. The banner was about 4 feet wide by 10 feet long and the words "VOTE NAGE" were printed in bright bold red letters. This banner remained on the outside of the NAGE building until after the election was conducted.

In addition, there were several other indications that NAGE Local R14-89 was using its building for campaign purposes. Sinniger began observing people carrying things in and out of the NAGE building in boxes which were about 1-1/2 feet wide, 2 feet long and approximately 1-1/2 feet high. Although Sinniger was not able to identify what was in the boxes, on one occasion he saw some colored paper in a box. On another occasion, Sinniger observed someone take a box from the NAGE office to the post office. The NFFE organizers also became aware of NAGE campaign literature which was being distributed to employees that identified the [ v29 p4 ] NAGE union office building and telephone number. Further-more, the NFFE organizers saw two NAGE campaign advertisements in the Fort Bliss weekly newspaper, The Monitor, in the two weeks immediately prior to the election, which invited employees to call the NAGE building if they had a question. The advertisement listed the building number of the NAGE union hall and the telephone number. The NFFE organizers continued to observe the campaign activity at the NAGE building until after the election. The activity was observed by a variety of NFFE organizers, including Sinniger, Newell, Henry Mesa, Beth Moten, Willie Henden, Howard Blackfeld and Jim Peterson. At least some of the NFFE organizers observed the campaign activity at the NAGE building on every day of the campaign after April 17, 1985, and the activity was observed at all times of the day.

On April 23, 1985, Eloiso DeAvila, Respondent's Labor Relations Specialist, went to the NAGE building to deliver a letter to Harry Breen. At that time, DeAvila saw in the building all of the NAGE nonfederal employee organizers who were based in locations other than El Paso. On this occasion, DeAvila talked with NAGE organizers John Carpenter, Frank Benetis and Steve Pope. Pope discussed a matter with DeAvila that related to campaigning. DeAvila also noticed that some of the NAGE organizers were on the phone at the time. In addition, DeAvila saw stacks of NAGE campaign literature in various places in the building. The literature was in the form of leaflets and brochures. DeAvila observed that some of the literature was in boxes and some was stacked on tables. During the course of the campaign, Harry Breen and John Carpenter, the two principal NAGE representatives, would call DeAvila's office and frequently DeAvila would not be there. The NAGE organizers would then leave the number of the union office for DeAvila to return the call. DeAvila would also call the union hall to talk with the NAGE organizers regarding election matters on those occasions when they had not called him beforehand.

The matter of NAGE's use of its union hall for campaign purposes was initially raised at the consent election agreement meeting in February 1985 by NFFE representative Beth Moten. Respondent's representatives took the position at that time that since NAGE's union hall was provided for in the negotiated agreement, therefore, they were not concerned about the use that NAGE put to its building. Army's position regarding the use by NAGE Local R14-89 of its building for campaign purposes was confirmed on March 20, 1985 in a letter from Beth Moten to Civilian Personnel Officer Julio Hernandez. [ v29 p5 ]

Subsequently, on or about April 10, 1985, Sinniger met with Respondent's Labor Relations Specialists DeAvila and Ernest Morales and requested that NFFE Local 2068 be provided with a building so that it would have equal campaign status with NAGE Local R14-89. Sinniger told DeAvila and Morales that he felt it was obvious that NAGE was going to use its building for campaign purposes. Respondent's representatives stated that this was a matter which was not provided for in the consent election agreement. They also informed Sinniger that NAGE Local R14-89 had negotiated for its building and that it was provided for in the collective bargaining agreement. Sinniger argued that the building should only be used for representational purposes and not for campaign purposes; his request was nevertheless denied.

Sinniger next met with DeAvila the week after the NAGE representatives, who were based outside of El Paso, had arrived on the scene. Sinniger pointed out to DeAvila at this time that he had observed NAGE organizers carrying things in boxes in and out of the NAGE building and that it was obvious to him that NAGE Local R14-89 was using its building for campaign purposes. However, on this occasion, DeAvila replied that the NAGE representatives could be using the building for representational purposes.

Thereafter, approximately two weeks prior to the election, Sinniger met with DeAvila once again to discuss with him the matter of NAGE Local R14-89's continued use of its building for campaign purposes. By this time, the indications of campaign activity at NAGE Local R14-89's building had increased significantly since the time of Sinniger's last conversation with DeAvila. Sinniger realized that there was not sufficient time at that point in the campaign to acquire a building equivalent to that of NAGE Local R14-89. There-fore, he told DeAvila that NAGE Local R14-89's use of its building for campaign purposes was now very obvious, and he asked DeAvila to stop NAGE Local R14-89 from using its building for campaign purposes. In response DeAvila made no effort to contend that NAGE Local R14-89 might not be using its building for campaign purposes. Rather, DeAvila stated that Respondent could not police NAGE Local R14-89's activities in its building. Sinniger replied that Army could utilize its MPs to restrict NAGE Local R14-89's use of its building for campaign purposes. DeAvila did not agree with this suggestion. Sinniger had no further conversations with DeAvila regarding NAGE Local R14-89's use of its building for campaign purposes after this time. Army never made any effort to require NAGE Local R14-89 to cease using its building for campaign purposes after it acquired knowledge [ v29 p6 ] of such activity, nor did it ever offer to provide NFFE Local 2068 with its own building for campaign purposes.

I find the record clearly establishes that NAGE Local R14-89 extensively used the union hall for campaigning 2 and this was made known to the Army during the campaign. The Army made no attempt to limit this use of the union hall by NAGE Local R14-89 or to provide NFFE Local 2068 with an equivalent facility of its own to be used for campaigning. NFFE Local 2068 rented a small one room office 3 off Fort Bliss and it took about 15 minutes to drive from that office to Fort Bliss. NFFE Local 2068 used the office as its campaign headquarters and stored campaign literature and received phone calls there.

Army offered NFFE Local 2068 access to meeting rooms during the campaign. NFFE Local 2068 would have had to advise Army in advance that it wanted to hold a meeting and when, and then a meeting room would be made available, on an "as available" basis and different facilities or rooms would have been made available for each meeting. NFFE Local 2068 did not avail itself of this offer.

Discussion and Conclusions of Law

Section 7116(a)(1) and (3) of the Statute provides as follows:

(I)t 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;

(3) to sponsor, control, or otherwise assist any labor organization, other than to [ v29 p7 ] furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;...

In the instant case the record clearly establishes that NAGE Local R14-89 extensively used its union hall on the base for campaigning and that the Army was aware of this activity. Further the record establishes that NFFE Local 2068 requested a similar facility from the Army, this request was denied and NFFE Local 2068 operated out of a small rented union office about 15 minutes from the base. In these circumstances I find that the use of the union hall for campaign purposes during the election was a substantial advantage for NAGE Local R14-89.

Section 7116(a)(3) of the Statute provides that although an activity may furnish customary and routine services and facilities to an incumbent labor organization, it must also provide them to any other labor organization having equivalent status. A labor organization acquires equivalent status when it has raised a question concerning representation by filing a representation petition or becoming an intervenor in such a pending representation petition. Cf. Department of Transportation, 2 FLRA 360 (1979) 4 and United States Department of Justice, United States Immigration and Naturalization Service, 9 FLRA 253 (1982) (herein called the INS case).

In the subject case, therefore, NFFE Local 2068 acquired equivalent status when it filed the valid petition in Case No. 6-RO-40007 and was thereafter entitled under Section 7116(a)(3) of the Statute to the same customary and routine services and facilities Army had granted to the incumbent union, NAGE Local R14-89.

The legislative history reflects that the House Committee on Post Office and Civil Service gave as an example in the application of this Section "providing equal bulletin board space to two labor organizations which will be on the ballot in an exclusive representation election." Report of the [ v29 p8 ] House Committee of the Committee on Post Office and Civil Service, H.R. Report No. 95-1403, 95 Congress 2nd Sess. 49, at page 695 of the Legislative History of the Federal Service Labor - Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (November 19, 1979).

Thus if both unions would be equally entitled to bulletin board space, in the subject case, I conclude they would both equally be entitled to a union hall for campaign purposes.

Although an incumbent union may, by virtue of its incumbent status, have certain advantages over a challenging union, Section 7116(a)(3) of the Statute is an attempt to place the competing unions on as equal a footing as is possible, at least with respect to services and facilities furnished by the Agency.

Army's contractual obligation to provide NAGE Local R14-89 with a union hall was, in the circumstances present, in accordance with the provisions of Section 7116(a)(3) of the Statute, that Army may provide an incumbent union with "customary and routine services and facilities...." Further, the utilization of the union hall by NAGE Local R14-89 for campaign purposes did not lose the protection of Section 7116(a)(3) of the Statute. Thus I note the example given in the Legislative History, discussed above, of making bulletin boards available to unions with equivalent status would make no sense unless the bulletin boards were to be used for campaign purposes. The Army's contractual obligation to provide NAGE Local R14-89 with a union hall did not mean Respondent did not have to provide NFFE Local 2068 with similar facilities. On the contrary, Section 7116(a)(3) of the Statute requires that NFFE Local 2068 receive the same facilities and services as provided NAGE Local R14-89.

In light of the foregoing, Section 7116(a)(3) of the Statute mandated that Army provide NFFE Local 2068, having equivalent status to NAGE Local R14-89, services and facilities on an impartial basis with the customary and routine services and facilities provided to NAGE Local R14-89, which, in the instant case, meant a union hall to be used during the representation campaign. I therefore conclude that Army violated Section 7116(a)(3) and (1) of the Statute when it refused to provide NFFE Local 2068 with a union hall to use during the representation campaign, when at the same time Respondent was providing such a union hall to NAGE Local R14-89. [ v29 p9 ]

Finally, I reject Respondent's contention that somehow the FLRA Regional Office was responsible for the violation of Section 7116(a)(3) because the FLRA Regional Office was responsible for supervising the election. The General Counsel of the FLRA is charged with the investigation and prosecution of unfair labor practices after the filing of a charge. The General Counsel's function is not self-initiating, but must be triggered by the filing of a charge, as was the case herein. The Statute does not provide the FLRA has a responsibility, or even in fact the right, sua sponte, to investigate how agencies operate and advise them how to comply with the Statute. Complying with the Statute is, initially, the responsibility of the individual agencies.

Having concluded Respondent violated Section 7116(a)(1) and (3) of the Statute by refusing to furnish NFFE Local 2068 with a union hall to be used during the representation proceeding, I recommend the Authority issue the following:

ORDER 5

Pursuant to Section 2423.29 of the Authority's Rules and Regulations and Section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders the United States Department of Defense, Department of the Army, United States Army Air Defense Center and Fort Bliss, Fort Bliss, Texas, shall:

1. Cease and desist from:

(a) Refusing to furnish National Federation of Federal Employees, Local 2068, or any other labor organization with equivalent status, services and facilities, including use of a union hall, on an impartial basis with the customary and routine services and facilities furnished National Association of Government Employees, Local R14-89, or any other incumbent labor organization. [ v29 p10 ]

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request furnish to National Federation of Federal Employees, Local 2068, or any other labor organization with equivalent status, services and facilities, including use of a union hall, on an impartial basis with the customary and routine services and facilities furnished National Association of Government Employees, Local R14-89, or any other incumbent labor organization.

(b) Post at its Fort Bliss facilities, 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 a responsible official, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VI, 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.

SAMUEL A. CHAITOVITZ
Administrative Law Judge

Dated: April 30, 1987
       Washington, D.C.

[ v29 p11 ]

                   NOTICE TO EMPLOYEES
                  POSTED BY ORDER OF THE
             FEDERAL LABOR RELATIONS AUTHORITY
          AN AGENCY OF THE UNITED STATES GOVERNMENT

We have been found by the Federal Labor Relations Authority to have committed an unfair labor practice. We have been ordered to post this Notice and abide by its provisions.

WE WILL NOT refuse to furnish National Federation of Federal Employees, Local 2068, or any other labor organization with equivalent status, services and facilities, including use of a union hall, on an impartial basis with the customary and routine services and facilities furnished National Association of Government Employees, Local R14-89, or any other incumbent labor organization.

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 Federal Service Labor - Management Relations Statute.

WE WILL, upon request, furnish to National Federation of Federal Employees, Local 2068, or any other labor organization with equivalent status, services and facilities, including use of a union hall, on an impartial basis with the customary and routine services and facilities furnished National Association of Government Employees, Local R14-89, or any other incumbent labor organization.

                             _______________________________
                                       (Activity)

Dated:___________________ By:_______________________________
                               (Signature)   (Title)

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 of the Federal Labor Relations Authority, Region VI, whose address is: 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996. [PAGE]

FOOTNOTES

Footnote 1 NAGE Local R14-89 was permitted to intervene herein. </