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 reflected in the complaint wherein it is
alleged that Mr. Hanlon's June 7, 1985 request was submitted as an
individual. However, as previously described, the actual language used
in the request indicates that the Hanlon request was filed on behalf of
Mr. Hanlon and a group of bargaining unit employees for the purpose of
obtaining certain concessions from the Respondent concerning tripod use
on Respondent's premises. That is, Mr. Hanlon was actively seeking to
establish rights for himself, and he was representing other unnamed
bargaining unit employees in their efforts to obtain similar rights.
Since Local 2782 held the position of exclusive representative, the
Respondent was obligated to recognize only Local 2782 in such matters,
and could not, without violating Sections 7114(a)(1) and Section
7116(a)(8), enter into negotiations or dealings with Mr. Hanlon on
behalf of the group of bargaining unit employees referred to in Mr.
Hanlon's memorandum. The provisions of Section 7114(a)(1) of the
Statute specifically provide that only the exclusive representative may
act on behalf of bargaining unit employees in such matters. These
circumstances reflect an additional legal basis for Respondent's denial
of the Charging Party's request.