FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 93-21831

NATIONAL AERONAUTICS AND SPACE

ADMINISTRATION, MARSHALL SPACE
FLIGHT CENTER,
Agency & Grievant,

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3434,
Union & Respondent.
_________________________________________/

OPINION OF THE ARBITRATOR

January 13, 1994

After a Hearing Held November 29, 1993

At Marshall Space Flight Center, Huntsville, Alabama

For the Agency: For the Union:

H. Gray Marsee, Attorney Ron Hutchins, National

Office of Chief Counsel Representative
National Aeronautics and American Federation of
Space Administration Government Employees
Marshall Space Flight Center 415 Cove Creek Road
Huntsville, Alabama 35812 Gadsden, Alabama 35903
 Grievance

In this institutional grievance, the Agency complains that Union

representatives reproduced a letter, a newspaper article, and a petition to

Congress (JX 2G, 2H, 21) on an Agency photocopier and distributed the

photocopies to approximately 989 Union employees, through the interoffice

mail, in violation of Section 12.02 of the collective bargaining agreement (JX

1). For the reasons explained below, the grievance is sustained.

Use of Interoffice Mail

Pertinent to resolution of several issues is a determination of whether the

Union utilized the interoffice mail. Although there was no direct evidence of

use, there was much circumstantial evidence. For example, their was testimony

from employees that they received the Union's photocopies in the same boxes in

which they customarily received interoffice mail and that the photocopies were

addressed to them at their interoffice mail stops, but bore no postage. Perhaps

most telling is the instruction in the letter itself (JX 2G), which states, "Return

the attached petition through the internal mail to AFGE, Building 4471, Room

150." Under all the circumstances, I am convinced that the Agency made out a

prima facie case that the Union utilized the interoffice mail.

Once the Agency presented its evidence, the burden of going forward

devolved onto the Union. Elkouri & Elkouri, How Arbitration Works (4th Ed,

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BNA) at 324-325. The Union's response was a rather vague denial, despite the

fact that knowledge of the facts lay squarely within its domain. The chief

steward testified that he gave copies of the disputed materials to Union stewards

for distribution but did not know how the stewards distributed copies. It would

seem to have been an easy matter for the Union to have called some of the

stewards to testify that they did not use the interoffice mail for distribution, if

that were the case. How Arbitration Works at 310-311; Cum Supp (1985-1989)

at 77.

From the Union's failure to present evidence on the use of the interoffice

mail and from the Agency's circumstantial evidence that it was used, I find that

the Union distributed copies of the letter, article, and petition, through the

interoffice mail. The Union makes no attempt to deny that the interoffice mail

was used to return the signed petitions (JX 4), as directed in the letter (JX 2G).

Thus, the interoffice mail was used both to distribute the photocopies and to

return the signed petitions.

Timeliness of Grievance

The Union claims that, because the letter is dated March 23, 1993 and the

Agency filed its grievance April 29, 1993, the grievance falls outside the 30-day

grievance period set by CBA Section 9.08(b) (JX 1). Whether the "incident

giving rise to the grievance" is viewed as (a) photocopying the letter, the

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newspaper article, and the petition on an Agency photocopier; distributing the

copies through the interoffice mail; and returning the signed petitions to the

Union through the interoffice mail, or as (b) a series of events involving

photocopying, distribution of copies, and return of signed petitions, significant

activity postdated March 23, 1993.

The grievance itself (JX 2F) is directed toward events of April 12, 1993,

well within 30 days of April 29, 1993. Several employees received their copies

on or about April 12, 1993 (Tr 86-88, 106-107). Information on the dates of

distribution of the photocopies was within the Union's domain, but it failed to

call the stewards who allegedly oversaw or made the distributions. Under these

circumstances, I find that ample Union activity occurred within 30 days of the

date of the Agency's grievance.

AFGE's PAC

On its face, the letter (JX 2G) refers to AFGE's Political Action

Committee ("PAC"). However, Union officials testified that the use of PAC was

inadvertent and that they really meant to refer to Local 3434's legislative

committee, which is a standing committee established under the Local's bylaws.

Despite its status as a standing committee, the legislative committee is largely

inactive. At most, its activities result from the sporadic legislative interests of

individual Union members.

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 Although use of PAC seems to have struck a nerve of Agency

management (Tr 167), whether the subject materials were being circulated on

behalf of the PAC, the Local's legislative committee, or the Union itself, the

issue remains whether the activities in question may be conducted on Agency

time, using Agency facilities. The answer is that they may not be.

Section 12.02

In defense of its actions, the Union interposes Section 12.02 of the

collective bargaining agreement, which provides:

AFGE is authorized the use of existing MSFC photocopying equipment

for employee representation purposes. The use of MSFC photocopying
equipment for any other purpose (e.g., internal union business) is not
authorized.

The Union asserts that the quoted language requires the Agency to prove that

the Union's use of the photocopies was for internal Union business and not

representational. The contract's plain language admits of no such interpretation.

The operative phrase in Section 12.02 clearly is "for any other purpose",

i.e., for any purpose other than representation. "Internal union business" is but

an illustrative example of proscribed activity and not the only one. The Union's

insistence that its activities were representational in nature similarly must be

rejected. In CBA Section 12.02, the Union is authorized to represent its

members vis-a-vis the Agency, not before Congress.

The fact that the letter, newspaper article, and petition pertained to pay

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("conditions of employment" per the Union) does not relieve them of their

objectionable character as lobbying tools. The intent was to collect signatures on

the petitions and to have those signed petitions forwarded to members of

Congress to influence them to lift a pay freeze on federal workers (including, of

course, Agency employees) (Union Brief at 4). Indeed, the Union in its Brief

writes:

The Union ... is using this [the petition] as a tool to gather employees
concerns in order to present these concerns as a labor organization to
make a statement to Congress .... Union Brief at 4.

When the Union addresses pay concerns to the Agency, it is engaged in

"representational" activity within the meaning of the CBA. When it addresses

pay concerns to Congress, it is engaged in lobbying.

The Union cannot in good conscience claim infringement under the CBA

of its right to represent its members before Congress. A statute, 18 USCA §

1913, makes criminal the use of Agency facilities to lobby Congress. Consonant

with the statute, the CBA restricts Union use of Agency photocopiers for

lobbying purposes. Subject to these restrictions, however, the Union is free to

carry on all the lobbying activities it can afford. See 5 USCA § 7102.

Remedy

Having decided that the Agency's grievance should be sustained, we turn

to the remedy sought. First, the Agency requests that AFGE Local 3434 be

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ordered to "cease and desist from using MSFC reproduction equipment for the

purpose of copying AFGE PAC materials of any form." This request is far too

broad, since Local 3434 might copy PAC materials for authorized

representational purposes. The fact that the PAC may be the source of materials

copied on Agency equipment, does not, in and of itself, taint those materials;

rather, it is the use for which they are intended that is determinative. The

Agency's request must be narrowed to the scope specified in CBA Section

12.02.

Second, the Agency requests that AFGE Local 3434 be directed "to cease

and desist from using the MSFC internal mail system for AFGE PAC materials

of any kind." Again, the scope of the Agency's request seems overbroad. It is

not inconceivable that some PAC materials could be of such interest to MSFC

personnel as to amount to official business (e.g., an article on the space

program). The Agency's request must be narrowed accordingly.

Third, the Agency seeks $89.01 in reimbursement for the Union

photocopying the letter, newspaper article, and petition for each of its

approximately 989 members. The issue of whether 989 copies were made on

Agency photocopiers is not free from doubt. However, since the true facts were

in the Union's domain and no satisfactory explanation was forthcoming, the

Agency's request is granted.

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 Award

This matter having been heard on November 29, 1993; the arbitrator

having reviewed the hearing transcript, exhibits, and briefs; and the arbitrator

having rendered a written Opinion of even date herewith,

IT IS HEREBY ORDERED that AFGE Local 3434 cease and desist

from using MSFC photocopying equipment for the purpose of copying AFGE

PAC materials for any purpose other than employee representation purposes;

FURTHER ORDERED that AFGE Local 3434 cease and desist from

using the MSFC internal mail system for AFGE PAC materials of any kind,

unless the use can be justified under MSFC's rules and regulations governing its

internal mail system;

FURTHER ORDERED that AFGE Local 3434 pay MSFC the sum of

$89.01, within fifteen (15) days of the date of this Award.

Dated: January 13, 1994 ____________________________

E. Frank Cornelius, Arbitrator

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