Department of Transportation, Federal Aviation Administration, Washington, D.C. (Respondent) and Professional Airway System Specialists (Complainant) 

 2 FLRA No. 48
 
 DEPARTMENT OF TRANSPORTATION,
 FEDERAL AVIATION ADMINISTRATION,
 WASHINGTON, D.C.
 Respondent
 
 and
 
 PROFESSIONAL AIRWAY SYSTEM
 SPECIALISTS
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08590(CA)
 
                            DECISION AND ORDER
 
    ON JULY 25, 1979, ADMINISTRATIVE LAW JUDGE ELI NASH, JR. ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
 THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED
 IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN
 ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978(43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS(44 F.R. 44741, JULY 30, 1979).  THE AUTHORITY CONTINUES TO
 BE RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE(92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-08590(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 31, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    WILLIAM B. PEER, ESQ.
 
    BARR & PEER
 
    1899 L STREET, NW.
 
    WASHINGTON, D.C. 20036
 
                            FOR THE COMPLAINANT
 
    DOLPH DAVID SAND
 
    AND JAMES WHITLOW, ESQS.
 
    OFFICE OF THE CHIEF COUNSEL, AGC-14
 
    FEDERAL AVIATION ADMINISTRATION
 
    800 INDEPENDENCE AVENUE, SW.
 
    WASHINGTON, D.C. 20591
 
                            FOR THE RESPONDENT
 
    BEFORE:  ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
                           RECOMMENDED DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED.  IT
 WAS HEARD IN WASHINGTON, D.C. ON OCTOBER 27, 1978, PURSUANT TO A NOTICE
 OF HEARING ISSUED ON AUGUST 10, 1978, BY THE REGIONAL ADMINISTRATOR,
 PHILADELPHIA REGION, LABOR-MANAGEMENT SERVICES ADMINISTRATION (LMSA).
 THE MATTER WAS INITIATED BY A COMPLAINT FILED BY PROFESSIONAL AIRWAY
 SYSTEM SPECIALISTS (PASS) ON NOVEMBER 2, 1977 ALLEGING THAT THE FEDERAL
 AVIATION ADMINISTRATION (RESPONDENT) VIOLATED SECTION 19(A)(1), (2), (3)
 AND (5) BY INTERFERING WITH RESTRAINING THE DELIVERING OF FIRST CLASS
 MAIL TO INDIVIDUAL EMPLOYEES IN CERTAIN FEDERAL AIRWAY FACILITY UNITS.
 THE REGIONAL OFFICE.  SUBSEQUENTLY, ON JULY 21, 1978, THE ASSISTANT
 SECRETARY AGREED WITH THE REGIONAL ADMINISTRATOR THAT THE 19(A)(2) AND
 (5) ALLEGATIONS HAD NOT BEEN ESTABLISHED BUT FOUND, THAT A REASONABLE
 BASIS EXISTED FOR THE ALLEGATION THAT THE ACTIVITY VIOLATED SECTION
 19(A)(1) AND (3) OF THE ORDER BY REFUSING TO ALLOW DISTRIBUTION OF THE
 COMPLAINANT'S LETTERS THROUGH THE AGENCY MAIL SYSTEM, WHILE AT THE SAME
 TIME PERMITTING DISTRIBUTION OF OTHERS.  ALTHOUGH THIS PROCEEDING WAS
 CONDUCTED BEFORE THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
 RELATIONS, THIS DECISION IS ISSUED IN THE NAME OF THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO TRANSITION RULES AND REGULATIONS,
 FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979(5 C.F.R. 2400.2).
 
    AT THE HEARING ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED A
 FULL OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
 WITNESSES, ARGUE ORALLY AND TO FILE BRIEFS.
 
    BASED UPON THE ENTIRE RECORD IN THE MATTER, INCLUDING ALL OF THE
 TESTIMONY ADDUCED AT THE HEARING AND MY OBSERVATION OF THE WITNESSES AND
 THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    THE BASIC FACTS IN THIS MATTER ARE UNDISPUTED, AND UNLESS NOTED TO
 THE CONTRARY THERE IS NO ISSUE CONCERNING THE FOLLOWING MATTERS.
 
    PASS WAS ORGANIZED IN FEBRUARY 1977 WITH THE PURPOSE OF ORGANIZING
 THE EMPLOYEES WORKING WITHIN THE AIRWAYS FACILITIES DIVISION AND TO
 REPRESENT THOSE EMPLOYEES BEFORE RESPONDENT.
 
    THE PRINCIPAL ORGANIZER FOR PASS IS HOWARD E. JOHANNSSEN, WHO AT THE
 TIME OF THE HEARING WAS THE PASS PRESIDENT.  AT THE HEARING, MR.
 JOHANNSSEN DESCRIBED HIS ROLE IN ATTEMPTING TO ORGANIZE FAA EMPLOYEES BY
 TRAVELING THROUGHOUT THE COUNTRY, MEETING WITH NUMEROUS EMPLOYEES OF
 THE
 FAA FACILITIES INVOLVED, CONTACTING THESE EMPLOYEES BY TELEPHONE, MAIL
 OR OTHER AVAILABLE MEANS IN ORDER TO GET AN INTEREST AND BUILD A
 MEMBERSHIP IN THE ORGANIZATION.
 
    MR. JOHANNSSEN FURTHER TESTIFIED THAT BECAUSE OF THE GEOGRAPHICAL
 LOCATION OF THE EMPLOYEES AND THE NETWORK OF FACILITIES THROUGHOUT THE
 NATION, IT WOULD BE IMPOSSIBLE FOR ANYONE OR ANY GROUP OF INDIVIDUALS TO
 GET TO EVERY FACILITY, AND TALK TO EVERY PERSON INVOLVED, AND GET THEIR
 SIGNATURE ON A SHOW OF INTEREST CARD.  WITH REGARD TO THE CENTERS
 INVOLVED, MR.  JOHANNSSEN TESTIFIED THAT BECAUSE OF THE GEOGRAPHICAL
 LOCATIONS OF THE FACILITIES, AND THE PERIOD OF TIME HIS ORGANIZATION HAD
 TO GAIN A 30 PERCENT SHOWING OF INTEREST, THAT IT WOULD BE IMPOSSIBLE
 FOR ANY ONE OR ANY GROUP OF INDIVIDUALS TO GET TO EVERY FACILITY AND TO
 TALK TO EVERY PERSON INVOLVED.  HE FELT THAT IN REMOTE FACILITIES, FOR
 INSTANCE, IT WAS IMPOSSIBLE TO CONTACT THE EMPLOYEES OTHER THAN BY MAIL.
 
    MR. JOHANNSSEN TESTIFIED THAT HE NEVER TALKED TO THE AGENCY
 OFFICIALLY ABOUT THE DIFFICULTY IN REACHING EMPLOYEES IN THE SECTORS
 INVOLVED.  NOR DID HE ASK RESPONDENT'S PERMISSION TO MAIL THE LETTERS IN
 THIS MATTER.
 
    THE FACILITIES INVOLVED ARE AIR TRAFFIC CONTROL CENTERS WHERE LARGE
 VOLUMES OF ELECTRICAL EQUIPMENT USED FOR THE MOVEMENT OF AIR TRAFFIC
 THROUGH THE AIR SPACE SYSTEM ARE LOCATED.  OTHER FACILITIES SUCH AS
 TOWERS AT AIRPORTS CONTAIN REMOTE NAVIGATIONAL EQUIPMENT USED BY
 AIRCRAFT AND AIR TRAFFIC CONTROLLERS.  THE SIZE OF THESE FACILITIES
 VARIES FROM 1 EMPLOYEE TO 100 EMPLOYEES.
 
    AT THE TIME OF PASS' MASS MAILINGS, OTHER LABOR ORGANIZATIONS
 POSSESSED REPRESENTATION STATUS FOR MANY OF THE EMPLOYEES FOR WHICH PASS
 WAS SEEKING STATUS.  THE NAGE/FASTA, NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES - FEDERAL AVIATION SCIENCE AND TECHNICAL ORGANIZATION AND THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES REPRESENTED APPROXIMATELY
 80
 PERCENT OF THE 8000 EMPLOYEES INVOLVED.
 
    IN ADDITION NABID AND THE TEAMSTER'S REPRESENTED EMPLOYEES IN UNIT IN
 OAKLAND BAY TRACON AND CHICAGO O'HARA, RESPECTIVELY.  APPROXIMATELY 2000
 EMPLOYEES WERE REPRESENTED.
 
    THE NAGE/FASTA NATIONWIDE UNIT AND THE RESPONDENT CONSUMMATED A
 COLLECTIVE BARGAINING AGREEMENT ON SEPTEMBER 27, 1977 WHICH WAS APPROVED
 BY RESPONDENT'S ADMINISTRATOR LANGHORNE M. BOND ON DECEMBER 1, 1977.  A
 CERTIFICATION EXISTED UP TO SEPTEMBER 21, 1977.  AFGE WAS GRANTED
 CERTIFICATION ON SEPTEMBER 21, 1976 AND FASTA WAS GRANTED CERTIFICATION
 ON APRIL 27, 1977.
 
    SOMETIME PRIOR TO SEPTEMBER 1977, MR. JOHANNSEN OBTAINED FROM
 RESPONDENT A LISTING OF EMPLOYEES WORKING IN VARIOUS AIRWAY SECTORS AND
 THE LOCATIONS OF THOSE SECTORS.  ON SEPTEMBER 6, 1977 PASS MAILED
 APPROXIMATELY 8000 LETTERS IN PLAIN WHITE ENVELOPES TO EMPLOYEES IN THE
 APPROXIMATELY 90 TO 95 FACILITIES.  THE LETTER CONTAINED A NOTICE, AN
 APPLICATION FOR MEMBERSHIP, AN ARTICLE FROM THE FEDERAL TIMES AND AN
 EMPLOYEE AUTHORIZATION CARD.  THE LETTERS WERE MAILED UNDER A FIRST
 CLASS MAILING PERMIT.
 
    THE RECORD INDICATES THAT A SECRETARY IN ONE OF THE REGIONAL OFFICES,
 WHO WAS PART OF THE UNIT ALREADY CERTIFIED, OPENED A LETTER AND UPON
 FINDING THAT IT CONTAINED PASS MATERIAL REPORTED IT TO HER SECTOR
 MANAGER.  THE SECTOR MANAGER IN TURN REPORTED THE LETTER TO MR. HERBERT
 M. BEARD, A SENIOR LABOR RELATIONS SPECIALISTS FOR RESPONDENT.
 
    AT THE HEARING, MR. BEARD TESTIFIED THAT UPON LEARNING OF THE
 MAILINGS HE REVIEWED CERTAIN AGENCY DIRECTIVES CONCERNING MAILINGS, IN
 GENERAL, AS DISTINCT FROM MAILINGS THAT ORIGINATE FROM A LABOR
 ORGANIZATION.  RELYING ON DEPARTMENT OF TRANSPORTATION DIRECTIVE 3710.2
 /3/ AND FAA DIRECTIVE 1770.11A.  MR. BEARD ADVISED THE SECTOR MANAGER
 AND ALL OTHER SECTOR MANAGERS EXCEPT THE PACIFIC REGION THAT IF SUCH
 MAIL WERE IDENTIFIED AS MASS MAILING, WHATEVER ACTION WHICH SEEMED
 APPROPRIATE SHOULD BE TAKEN TO RETURN THE LETTERS THROUGH POSTAL
 CHANNELS.
 
    MR. BEARD FURTHER TESTIFIED THAT TWO FACTORS ENTERED INTO ORDERING
 THE MAIL RETURNED.  FIRST, HE WAS AWARE OF AN EXISTING CERTIFICATION BAR
 AND THAT HIS REVIEW OF THE DIRECTIVES WAS IN THE CONTEXT OF THAT BAR.
 SECONDLY, ALTHOUGH NOT A PRIMARY CONSIDERATION, THE MAILING WAS EN MASS
 OR BULK.
 
    THE RECORD DISCLOSED THAT EMPLOYEES AT MANY OF RESPONDENT'S CENTERS
 RECEIVE PERSONAL MAIL INCLUDING NEWSPAPERS, MAGAZINES AND ADVERTISING
 MATERIALS ON A REGULAR BASIS IN THE MAILS AND THAT THE ARTICLES ARE
 DELIVERED THROUGH RESPONDENT'S INTERNAL MAIL SYSTEM.  APPROXIMATELY
 2,500 ENVELOPES WERE RETURNED TO PASS AND MARKED "RETURN TO SENDER."
 FURTHER, THE EVIDENCE SHOWED THAT RESPONDENT HAD ON ONE OCCASION
 ALLOWED
 PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO) TO MAKE MASS
 OR BULK MAILINGS FROM RESPONDENT'S HEADQUARTERS.  HOWEVER, AT THE TIME
 OF THAT MAILING PATCO WAS THE EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES
 INVOLVED.
 
                                  ISSUES
 
    PASS CONTENDS THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (3) BY
 FRUSTRATING ITS DRIVE TO SOLICIT A 30 PERCENT SHOWING OF INTEREST WHICH
 WOULD HAVE PERMITTED IT TO CHALLENGE FASTA/NAGE WITH A REPRESENTATIVE
 PETITION.  PASS ASSERTS THAT RESPONDENT'S PRIMARY DEFENSE THAT PASS
 LACKED "EQUIVALENT STATUS" WITH FASTA/NAGE AND THUS RESPONDENT COULD
 PROPERLY REJECT ITS' ATTEMPTS TO USE THE INTERNAL MAILING SYSTEM IS
 MISPLACED.  IT ARGUES THAT THE 19(A)(3) VIOLATION IS BASED NOT ON
 RESPONDENT'S SPONSORING, CONTROLLING OR ASSISTING ANOTHER LABOR
 ORGANIZATION BUT RATHER ON ITS DENYING PASS ACCESS TO THE EMPLOYEES
 BECAUSE PASS HAD NO OTHER REASONABLE, PRACTICAL OR LEGITIMATE MEANS OF
 SOLICITING EMPLOYEES. AS ALREADY STATED, RESPONDENT URGES THAT THE ISSUE
 IN THIS MATTER IS WHETHER PASS HAD "EQUIVALENT STATUS" WITH AFGE OR
 FASTA, THE TWO RECOGNIZED BARGAINING UNITS FOR AIRWAY FACILITIES
 EMPLOYEES IN REGIONS WHERE THE RESPONDENT REFUSED TO DISTRIBUTE
 COMPLAINANT'S BULK MAILING.
 
                        DISCUSSION AND CONCLUSIONS
 
    IN DEPARTMENT OF THE ARMY, U.S. ARMY NATICK LABORATORIES, NATICK
 MASS., A/SLMR NO. 263 AND U.S. DEPARTMENT OF INTERIOR, PACIFIC COAST
 REGION, GEOLOGICAL SURVEY CENTER, MENLO PARK, CALIFORNIA, A/SLMR NO.
 143;  DEPARTMENT OF THE NAVY, NAVY COMMISSARY STORE COMPLEX, OAKLAND,
 CA, A/SLMR NO. 654 THE ASSISTANT SECRETARY CONCLUDED THAT A UNION WHICH
 HAS NOT RAISED A QUESTION CONCERNING REPRESENTATION BY VIRTUE OF ITS
 ACTION IN FILING A REPRESENTATION PETITION OR BECOME AN INTERVENOR IN
 SUCH A PENDING REPRESENTATION PETITION, DOES NOT ENJOY "EQUIVALENT
 STATUS" WITHIN THE MEANING OF SECTION 19(A)(3) OF THE ORDER.  ALSO, IN
 THE ABSENCE OF "SPECIAL CIRCUMSTANCES" A LABOR ORGANIZATION NOT
 POSSESSING "EQUIVALENT STATUS" WITH AN INCUMBENT EXCLUSIVELY RECOGNIZED
 REPRESENTATIVE, MAY NOT ENJOY THE USE OF THE SERVICES AND FACILITIES OF
 THE ACTIVITY INVOLVED FOR PURPOSES OF ORGANIZATIONAL ACTIVITIES.  IN THE
 ABSENCE OF A SHOWING OF SPECIAL CIRCUMSTANCES, I.E. A SHOWING THAT THE
 EMPLOYEES INVOLVED ARE INACCESSIBLE TO REASONABLE ATTEMPTS BY A LABOR
 ORGANIZATION TO COMMUNICATE WITH THEM OUTSIDE THE AGENCY'S OR ACTIVITY'S
 PREMISES, THE GRANTING OF ACCESS TO A UNION NOT ENJOYING "EQUIVALENT
 STATUS" IS VIOLATIVE OF SECTION 19(A)(3) OF THE ORDER AND CONSTITUTES
 IMPROPER PRE-ELECTION CONDUCT JUSTIFYING THE SETTING ASIDE OF AN
 ELECTION.  U.S. ARMY NATICK LABORATORIES AND GEOLOGICAL SURVEY CENTER,
 MENLO PARK SUPRA;  DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT
 ADMINISTRATION SERVICES, REGION SF, BURLINGAME, CALIFORNIA, A/SLMR NO.
 247.
 
    THE ASSISTANT SECRETARY NOTED IN "NATICK" "THAT BEFORE AN AGENCY OR
 ACTIVITY GRANTS ACCESS TO ITS FACILITY BY NON-EMPLOYEE REPRESENTATIVES
 OF A LABOR ORGANIZATION, IT MUST ASCERTAIN THAT THE LABOR ORGANIZATION
 INVOLVED HAS MADE A DILIGENT, BUT UNSUCCESSFUL, EFFORT TO CONTACT THE
 EMPLOYEES AWAY FROM THE AGENCY OR ACTIVITY PREMISES AND THAT ITS FAILURE
 TO COMMUNICATE WITH THE EMPLOYEES WAS BASED ON THEIR INACCESSIBILITY.
 IT APPEARS THAT IRRESPECTIVE OF THE EXISTENCE OF "SPECIAL
 CIRCUMSTANCES", AN AGENCY OR ACTIVITY COULD BE ENGAGING IN CONDUCT
 VIOLATIVE OF SECTION 19(A)(3) OF THE EXECUTIVE ORDER IF IT ALLOW ACCESS
 TO ITS PREMISES WITHOUT FIRST INQUIRING INTO THE PAST EFFORTS OF THE
 LABOR ORGANIZATION WHICH IS REQUESTING EITHER USE OF ITS PREMISES OR
 FACILITIES.
 
    THE CASES MAKE IT CLEAR THAT WHERE THERE IS NO QUESTION CONCERNING
 REPRESENTATION EXISTS AN AGENCY WILL BE COMPELLED TO PERMIT USE OF ITS
 FACILITIES AND SERVICES ONLY IN RARE CASES OF INACCESSIBILITY TO OTHER
 MODES OF COMMUNICATION.  FURTHER, THERE APPEARS TO BE AN AFFIRMATIVE
 RESPONSIBILITY ON THE AGENCY OR ACTIVITY TO ASCERTAIN WHETHER A LABOR
 ORGANIZATION SEEKING USE OF ITS FACILITIES AND SERVICES HAS MADE A
 DILIGENT, BUT UNSUCCESSFUL EFFORT TO CONTACT EMPLOYEES AWAY FROM THE
 AGENCY OR ACTIVITY'S PREMISES AND THAT THE FAILURE TO COMMUNICATE WITH
 THE EMPLOYEES WAS BASED ON THEIR INACCESSIBILITY.  THERE IS AMPLE
 JUSTIFICATION FOR SUCH PROCEDURE AND THE QUESTION OF WHETHER OR NOT
 EMPLOYEES ARE INACCESSIBLE SHOULD BE RAISED WITH THE ACTIVITY OR AGENCY.
 
    IN ITS BRIEF COMPLAINANT URGES THAT IT WAS DENIED ACCESS TO EMPLOYEES
 AND THAT IT HAD NO OTHER PRACTICAL OR LEGITIMATE MEANS OF SOLICITING
 EMPLOYEES.  YET IT MADE NO EFFORT TO COMMUNICATE THIS DIFFICULTY TO THE
 RESPONDENT, WHO HAS A RESPONSIBILITY TO MAKE SUCH A DETERMINATION UNDER
 THE CASE LAW, BUT INSTEAD SOUGHT DIRECTLY TO USE THE INTERNAL MAILING
 SYSTEM BEFORE ANY SUCH DETERMINATION COULD BE MADE.  IN THE
 CIRCUMSTANCES, IT IS MY VIEW THAT RESPONDENT FACED WITH ALLOWING THE USE
 OF ITS FACILITIES WITHOUT MAKING A DETERMINATION AS TO INACCESSIBILITY
 WAS CORRECT IN NOT DISTRIBUTING THE MAIL THROUGH ITS INTERNAL MAILING
 SYSTEM.  FURTHERMORE, RESPONDENT WAS CORRECT IN NOTING THAT IT WOULD BE
 SUBJECT TO UNFAIR LABOR PRACTICE COMPLAINTS FROM THE CERTIFIED LABOR
 ORGANIZATIONS HAD IT DELIVERED THE MAIL THROUGH ITS INTERNAL MAILING
 SYSTEM WHERE NO QUESTION CONCERNING REPRESENTATION HAD BEEN RAISED AND
 WHERE IT HAD NOT MADE A DETERMINATION AS TO THE EMPLOYEES ACCESSIBILITY.
 
    WITH RESPECT TO WHETHER OR NOT EMPLOYEES WERE INACCESSIBLE OUTSIDE
 THE RESPONDENT'S PREMISES, THE EVIDENCE IS CLEAR THAT THE FACILITIES
 INVOLVED WERE GEOGRAPHICALLY SCATTERED.  HOWEVER, THERE IS NO SHOWING
 THAT COMPLAINANT MADE A DILIGENT EFFORT TO CONTACT EMPLOYEES PRIOR TO
 THE MAILING OR THAT SUCH EFFORTS TO CONTACT EMPLOYEES WOULD HAVE BEEN
 FUTILE.  INDEED THE EVIDENCE SHOWS THAT AFTER A LIMITED EFFORT BY
 TELEPHONE COMPLAINANT MADE ITS DECISION TO USE THE MAILS.  SINCE IT HAS
 NOT BEEN ESTABLISHED THAT THE EMPLOYEES INVOLVED WERE BEYOND THE REACH
 OF REASONABLE EFFORTS BY PASS TO COMMUNICATE WITH THEM OTHER THAN BY
 MAIL, IN VIEW OF THE EXISTING CERTIFICATION BARS AND THE LACK OF A
 QUESTION CONCERNING REPRESENTATION, IT IS FOUND THAT RESPONDENT DID NOT
 VIOLATE SECTIONS 19(A)(1) AND (3) OF THE ORDER BY RETURNING THE
 MAILINGS.
 
    IT IS ALSO FOUND THAT THERE IS NO DISPARITY OF TREATMENT IN THIS
 MATTER WITH RESPECT TO MAILING OR TO DISTRIBUTION OF MAILS FOR OTHER
 LABOR ORGANIZATIONS.  WITH REGARD TO THE LATTER, RESPONDENT INDEED
 DISTRIBUTED MAILINGS FOR PATCO.  HOWEVER, AT THE TIME OF THAT SINGLE
 DISTRIBUTION, PATCO WAS AN EXCLUSIVE REPRESENTATIVE IN THE UNIT IN WHICH
 THE DISTRIBUTION OCCURRED, THUS RAISING AN ENTIRELY DIFFERENT QUESTION.
 FINALLY, SINCE IT IS FOUND THAT NO QUESTION CONCERNING REPRESENTATION
 EXISTED AND THAT COMPLAINANT DID NOT EXHAUST REASONABLE EFFORTS TO
 COMMUNICATE WITH EMPLOYEES OTHER THAN BY MAILING, IT IS UNNECESSARY TO
 PASS ON THE QUESTION OF WHAT EFFECT RESPONDENT'S DIRECTIVES HAD ON ITS
 REFUSAL TO DISTRIBUTE THE PASS ORGANIZATIONAL MATERIAL WHILE
 DISTRIBUTING PERSONAL MAIL AT ITS FACILITIES.
 
                              RECOMMENDATION
 
    IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE, I RECOMMEND THAT
 THE FEDERAL LABOR RELATIONS AUTHORITY DISMISS THE COMPLAINT HEREIN
 ALLEGING A VIOLATION OF SECTION 19(A)(1) AND (3).
 
                              ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  7/25/79
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978(92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE(92 STAT. 1191) HAD NOT BEEN ENACTED.
 THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ THESE EMPLOYEES WERE ALL INCLUDED IN A NATIONAL UNIT FOUND
 APPROPRIATE BY THE ASSISTANT SECRETARY IN FEDERAL AVIATION
 ADMINISTRATION, EASTERN REGION, A/SLMR NO. 600, INCLUDING EMPLOYEES IN
 THE FOLLOWING LOCATIONS:
 
    WASHINGTON HEADQUARTERS, THE NATIONAL AERONAUTICAL FACILITIES
 EXPERIMENTAL CENTER, ATLANTIC
 
    CITY, NEW JERSEY, THE AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA,
 AND THE AIRWAY FACILITIES
 
    DIVISION EMPLOYEES REPRESENTED EXCLUSIVELY AT THE FOLLOWING
 LOCATIONS:  THE ST. PAUL,
 
    MINNESOTA AIRWAY FACILITIES SECTOR;  THE FARMINGTON, MINNESOTA AIRWAY
 FACILITIES SECTOR;  THE
 
    MINNEAPOLIS, MINNESOTA AIRWAY FACILITIES SECTOR;  THE CHICAGO AURORA
 AIRWAY FACILITIES
 
    SECTOR;  THE CHICAGO MIDWAY AIRWAY FACILITIES SECTOR;  THE CHICAGO
 O'HARA AIRWAY FACILITIES
 
    SECTOR, THE LONGMONT, COLORADO AIRWAY FACILITIES SECTOR, THE TAMPA,
 FLORIDA AIRWAY FACILITIES
 
    SECTOR;  THE OAKLAND, CALIFORNIA AIRWAY FACILITIES SECTOR;  THE
 MCCLELLAN AIR FORCE BASE AIRWAY
 
    FACILITIES SECTOR;  THE ALBUQUERQUE, NEW MEXICO MAINTENANCE
 ENGINEERING FIELD OFFICE, THE
 
    OKLAHOMA CITY, OKLAHOMA FIELD MAINTENANCE PARTY, THE EASTERN REGION
 HEADQUARTERS;  THE
 
    PACIFIC-ASIA REGION;  THE TULSA, OKLAHOMA AIRWAY FACILITIES SECTOR;
 THE DENVER, COLORADO AIRWAY
 
    FACILITIES SECTOR;  AND THE ALASKAN REGION.
 
    /3/ B.  LITERATURE.  LABOR ORGANIZATION HOUSE ORGANS, HANDBILLS,
 NOTICES OR OTHER LITERATURE SHALL NOT BE DISTRIBUTED WITHIN DOT
 FACILITIES BY MEANS OF GOVERNMENT MAIL OR MESSENGER SERVICES.  EMPLOYEES
 MAY DISTRIBUTE LITERATURE IN NONWORK AREAS DURING THE NONWORK HOURS OF
 THE DISTRIBUTING AND RECEIVING EMPLOYEES.  NON-EMPLOYEE UNION
 REPRESENTATIVE SHOULD GENERALLY NOT BE GRANTED PERMISSION TO DISTRIBUTE
 LITERATURE ON GOVERNMENT PROPERTY.  AN EXCEPTION TO THIS RULE OCCURS
 WHEN THE UNION HAS NO OTHER PRACTICABLE MEANS OF COMMUNICATING WITH THE
 EMPLOYEES.  HOWEVER, WHEN PERMISSION IS GRANTED TO NON-EMPLOYEE
 REPRESENTATIVES TO ENTER THE PROPERTY, THEY SHOULD NOT BE AUTHORIZED TO
 EITHER SOLICIT MEMBERS OR DISTRIBUTE LITERATURE IN WORK AREAS DURING
 WORK TIME.  WHEN THE LABOR ORGANIZATION IS AN EXCLUSIVE REPRESENTATIVE,
 PERMISSION, CONDITIONS AND RESTRICTIONS IN REGARD TO THE DISTRIBUTION OF
 LABOR ORGANIZATION LITERATURE SHOULD BE CONTAINED IN THE NEGOTIATED
 AGREEMENT.  (SEE ALSO PARAGRAPHS 7C AND 7D.)