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 5 FLRA No. 106
 
 U.S. DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 AIRWAY FACILITIES CENTER, DENVER
 AIR ROUTE TRAFFIC CONTROL CENTER,
 LONGMONT, COLORADO
 Respondent
 
 and
 
 DENVER ARTCC PROFESSIONAL AIRWAYS
 SYSTEM SPECIALISTS, LOCAL 404
 Charging Party
 
                                            Case No. 7-CA-32
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE 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 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  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 (THE STATUTE).  /1/
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE
 AUTHORITY HAS REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND
 FINDS NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE
 RECORD IN THIS CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS,
 THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-32 BE, AND
 IT HEREBY IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    WALTER L. GEORGE
    FOR THE RESPONDENT
 
    GAVIN K. LODGE, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  JOHN H.FENTON
    CHIEF ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN UNFAIR LABOR
 PRACTICE COMPLAINT DATED MARCH 11, 1980, FILED BY THE REGIONAL DIRECTOR,
 SEVENTH REGION, FEDERAL LABOR RELATIONS AUTHORITY, KANSAS CITY,
 MISSOURI, AGAINST THE U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL
 AVIATION ADMINISTRATION AIRWAYS FACILITIES CENTER, DENVER AIR ROUTE
 TRAFFIC CONTROL CENTER, LONGMONT, COLORADO.
 
    THE COMPLAINT ALLEGED THAT RESPONDENT, ON JANUARY 9, 1979, REMOVED A
 TELEVISION SET FROM ITS CENTRAL COMPUTER COMPLEX WITHOUT FURNISHING
 LOCAL 404, DENVER ARTCC PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, WITH
 ADEQUATE NOTICE OR AN OPPORTUNITY TO BARGAIN ABOUT SUCH CHANGE.  A
 HEARING WAS HELD IN DENVER, COLORADO, ON JUNE 25, 1980, AND ALL PARTIES
 WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE,
 EXAMINE AND CROSS-EXAMINE WITNESSES AND FILE BRIEFS.  ON THE BASIS OF
 THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR.  I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND
 RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  IN 1972 RESPONDENT PERMITTED THE EMPLOYEES OF ITS AIRWAYS
 FACILITY CENTER TO PLACE A TV SET IN A SO-CALLED BREAK ROOM ADJACENT TO
 ITS CENTRAL COMPUTER COMPLEX (CCC), AND TO USE IT FOR RECREATIONAL
 PURPOSES.  IN 1974 THE EMPLOYEES REPLACED IT WITH A COLLECTIVELY
 PURCHASED COLOR TV SET.  NO RULE WAS EVER PROMULGATED ABOUT ITS USE,
 EXCEPT THAT, IN 1975, SUPERVISORS ORALLY INSTRUCTED EMPLOYEES THAT IT
 WAS NOT TO BE USED DURING ADMINISTRATIVE WORK HOURS (8:00 AM TO 4:30 PM,
 MONDAY THROUGH FRIDAY).  THESE TECHNICIANS, WHO PROVIDE SUPPORT SERVICE
 TO THE AIR TRAFFIC CONTROLLERS, WORK AROUND THE CLOCK.
 
    2.  TWO OTHER TV SETS FOR SIMILAR USE ARE WITHIN A MINUTE OR TWO'S
 WALK FOR THE CCC EMPLOYEES.  ONE IS IN THE CAFETERIA AND THE OTHER IS IN
 A DEFINED BREAK (NON-WORK) AREA.  THE ROOM IN QUESTION HAS MIXED
 PURPOSES.  IN ADDITION TO THE TV, IT CONTAINS A DESK, TWO TABLES,
 CHAIRS, A COFFEE POT, TIME AND ATTENDANCE RECORDS, MAIL DROPS AND
 READING MATERIALS, INCLUDING TECHNICAL MANUALS.  THUS, IT IS USED AS A
 WORK PLACE AND ALSO AS A GATHERING PLACE DURING BREAKS AND THE LUNCH
 PERIOD.
 
    3.  ALTHOUGH RESPONDENT ASSERTS THAT THERE WERE MANY INSTANCES OF
 ABUSE WHICH INTERFERED WITH WORK, NO EMPLOYEE WAS EVER DISCIPLINED OR
 EVEN ADMONISHED FOR IMPROPER USE OF THE SET.  APPARENTLY MOST OF THESE
 TECHNICIANS WORKED WITHOUT A GREAT DEAL OF IMMEDIATE SUPERVISION, AND IT
 IS ASSERTED THAT ABUSE WAS DIFFICULT TO CONTROL.  IT IS APPARENT THAT
 SOME SUPERVISORS HAD CONTRIBUTED TO PURCHASE OF THE SET AS WELL AS ITS
 ABUSE.  ASSISTANT SECTOR MANAGER JOHN OLSON SPOKE TO OFFICIALS OF AFGE
 (PREDECESSOR TO PASS) ABOUT HIS CONCERN, AND HE TOLD HIS SUPERVISORS TO
 TRY TO CONTROL IT, BUT HE DID NOT SUGGEST THAT DISCIPLINE BE EMPLOYED.
 
    4.  IN DECEMBER 1978, THE CCC CREW CHIEFS (FIRST-LINE SUPERVISORS)
 MET AND UNANIMOUSLY DECIDED TO RECOMMEND THAT THE TV SET BE REMOVED.  ON
 JANUARY 5, 1979, THEY SENT A MEMORANDUM TO THE SECTOR MANAGER POINTING
 OUT THAT THE SET INTERFERED WITH WORK AND DEGRADED THEIR SUPPORT SYSTEM,
 AND RECOMMENDING THAT MANAGEMENT CONSULT WITH THE UNION AND ELIMINATE
 IT.
 
    5. ON DECEMBER 11, 1978, LOCAL 404, PROFESSIONAL AIRWAY SYSTEMS
 SPECIALISTS, WAS RECOGNIZED AS THE BARGAINING REPRESENTATIVE OF THE
 EMPLOYEES INVOLVED. MANAGEMENT DID NOT BETRAY ITS CONCERNS OR ANY PLANS
 IT HAD RESPECTING THE TV SET TO THE NEW OFFICERS UNTIL JANUARY 8, 1979.
 ON THAT DAY JOHN OLSON, ACTING SECTOR MANAGER, CALLED LOCAL PRESIDENT
 CARL SANDERS, JR., TO HIS OFFICE AT ABOUT 3:00 PM.  ACCORDING TO OLSON,
 HE SPOKE AT LENGTH ABOUT ABUSES, SHOWED SANDERS THE LETTER FROM THE CREW
 CHIEFS AND SAID THEY HAD RECOMMENDED THAT HIS OFFICE "BITE THE BULLET"
 AND REMOVE THE SET.  SANDERS SAID THE LOCAL WOULD NOT AGREE AND THAT THE
 PROBLEM WAS ONE FOR THE SUPERVISORS TO CONTROL. ACCORDING TO SANDERS,
 OLSON OPENED THE MEETING BY ANNOUNCING THAT MANAGEMENT HAD DECIDED TO
 "BITE THE BULLET" AND FOLLOWED IT UP WITH A LIST OF ALLEGED ABUSES, NONE
 OF WHICH WAS SPECIFIC AS TO NAMES, DATES, ETC.  HE NOTED HIS
 DISAGREEMENT, IF NOT OBJECTION, SAID THAT NOBODY HAD EVER BEEN WARNED,
 COUNSELLED OR DISCIPLINED FOR ANY OF THE ALLEGED INCIDENTS, AND POINTED
 OUT THAT SUPERVISORS SHOULD CONTROL ANY PROBLEMS.  SANDERS DID NOT
 REQUEST THAT OLSON POSTPONE HIS DECISION, NEGOTIATE /2/ OR CONSULT OVER
 IT, OR RECONSIDER IT.  HE SUGGESTED NO ALTERNATIVE TO THE PROPOSED
 REMOVAL, EXCEPT FOR CLOSER MONITORING OR POLICING OF THE SET'S USE.
 REMOVAL WAS THE ONLY ALTERNATIVE TO A CRACKDOWN ON USE WHICH WAS IN FACT
 DISCUSSED.  SANDERS DID NOT RECALL THAT HE HAD CONTACTED ANY OF HIS
 CONSTITUENTS OR OTHER OFFICERS OF PASS BETWEEN THE TIME OF THESE
 DISCUSSIONS AND THE TIME THE SET WAS REMOVED APPROXIMATELY 24 HOURS
 LATER.  NOR DID HE SEEK ANY FURTHER CONTACT WITH MANAGEMENT.  AFTER
 LEAVING OLSON'S OFFICE HE ENCOUNTERED SYSTEMS ENGINEERS RAYMOND RAFITI
 AND BENNETT BENTLY. HE REMARKED TO THESE SECOND-LEVEL SUPERVISORS THAT
 HE HAD JUST COME FROM OLSON'S OFFICE, THAT OLSON WAS GOING TO REMOVE THE
 BREAK-ROOM TV, BUT THAT HE DID NOT CARE AS LONG AS MANAGEMENT DID NOT
 TOUCH THE SET WHICH WAS LOCATED IN THE BASEMENT (WHERE HE WORKED).  AT
 4:00 PM ON THE FOLLOWING DAY THE SET WAS REMOVED.
 
                        DISCUSSION AND CONCLUSIONS
 
    USE OF THE TV SET, AT LEAST DURING NON-ADMINISTRATIVE WORK HOURS, HAD
 OVER THE COURSE OF MANY YEARS BECOME AN ESTABLISHED TERM AND CONDITION
 OF EMPLOYMENT.  IF RESPONDENT WAS NOT A FULL PARTNER IN ITS ACQUISITION
 AND USE, IT HAD CLEARLY CONDONED ITS USE ON WEEKENDS AND DURING THE
 SWING AND GRAVEYARD WEEKDAY SHIFTS.  THERE WAS, THEREFORE, AN OBLIGATION
 TO BARGAIN ABOUT ITS REMOVAL.
 
    OLSON, AS HIS SUPERVISORS HAD RECOMMENDED, CALLED SANDERS TO HIS
 OFFICE TO ANNOUNCE HIS DECISION AND TO DISCUSS THE MATTER.  WHILE THE
 GENERAL COUNSEL ARGUES THAT AN UNALTERABLE DECISION HAD BEEN MADE, AND
 THUS THAT GOOD FAITH BARGAINING COULD NOT ENSUE, THE EVIDENCE INDICATES
 ONLY THAT OLSEN WENT INTO THE CONFERENCE WITH THE VIEW THAT ELIMINATION
 OF THE SET WAS THE ONLY VIABLE SOLUTION.  THERE IS NO EVIDENCE THAT HIS
 MIND WAS RIGIDLY SET EXCEPT FOR THE FACT THAT HE COULD NOT BE PERSUADED
 THAT TIGHTER CONTROL OF THE SET BY HIS SUPERVISORS WAS A SOLUTION.  I
 CANNOT GIVE GREAT WEIGHT TO THE PARTICULAR WORDS EMPLOYED, OR ATTEMPT TO
 MAKE RESOLUTION OF THE CASE DEPEND UPON WHETHER OLSON SAID HE PROPOSED
 TO BAN THE SET OR SAID HE HAD DECIDED TO BAN THE SET.  OLSON IN FACT
 INVITED SANDERS IN, DISCLOSE HIS INTENTION (WHICH MAY HAVE BEEN
 RELATIVELY TENTATIVE OR RELATIVELY FIXED SO FAR AS I CAN DISCERN), AND
 ENGAGED IN A DISCUSSION OF 20 TO 45 MINUTES DURATION.  IT WAS INCUMBENT
 UPON SANDERS TO COME FORWARD WITH COUNTERPROPOSALS AND ATTEMPT TO SEEK
 OUT, AND PERSUADE OLSON TO, SOME ACCEPTABLE ALTERNATIVE.  HE PROPOSED
 ONLY STRICTER ENFORCEMENT OF THE RULES FOR THE SET'S USE, A PROPOSAL
 UNACCEPTABLE TO MANAGEMENT, AND AN IMPASSE WAS REACHED.  AS USE OF THE
 SET WAS NOT AN EMPLOYMENT CONDITION SET BY CONTRACT, MANAGEMENT HAD THE
 RIGHT TO IMPLEMENT ITS DECISION ONCE A GOOD-FAITH IMPASSE HAD BEEN
 REACHED.
 
    THE ONLY EVIDENCE FROM WHICH TO INFER A LACK OF THE REQUISITE GOOD
 FAITH HERE IS THAT MANAGEMENT ANNOUNCED ITS DECISION IN A RATHER
 POSITIVE WAY AND DID NOT BUDGE FROM ITS POSITION IN THE ENSUING
 DISCUSSION.  THUS, THE GENERAL COUNSEL ARGUES THAT THE AGENCY CAME TO A
 FINAL DECISION BEFORE CALLING THE UNION, AND ENGAGED IN "SURFACE"
 BARGAINING THEREAFTER, I.E. WITH NO INTENTION OF REACHING AN AGREEMENT
 ON SOME LESSER MEASURE THAN REMOVAL OF THE SET.  IN THE ABSENCE OF A
 REQUIREMENT THAT MANAGEMENT MUST MAKE EXPLICIT ITS WILLINGNESS TO
 EXPLORE OTHER PROPOSED SOLUTIONS, ITS FAILURE TO BE PERSUADED CAN, OF
 COURSE, ALWAYS BE ARGUED TO CONSTITUTE A CONVINCING DEMONSTRATION OF A
 CLOSED MIND, AND THE FAILURE TO YIELD GROUND WITH RESPECT TO A TENTATIVE
 DECISION WOULD CARRY THE RISK OF A FINDING THAT SUCH DECISION WAS FINAL.
  HERE THE EVIDENCE IS SCANT AND THE BARGAINING WAS BRIEF.  OLSON CALLED
 SANDERS TO HIS OFFICE ANNOUNCED HIS INTENTION TO REMOVE THE SET AND GAVE
 HIS REASONS.  SANDERS WAS THUS INVITED TO TAKE PART, TO DISPUTE AND TO
 MAKE COUNTERPROPOSALS.  HE DID SO, BUT HE FAILED TO CONVINCE OLSON THAT
 THERE EXISTED A MORE SENSIBLE SOLUTION THAN WHAT HE HAD ANNOUNCED.
 OLSON THEN FOLLOWED THROUGH AND REMOVED THE TV SET.  ON SUCH A RECORD I
 CANNOT CONCLUDE THAT A PREPONDERANCE OF THE EVIDENCE SUPPORTS A FINDING
 THAT RESPONDENT HAD MADE UP ITS MIND, AND THAT IT SOUGHT OUT SANDERS AND
 DISCUSSED THE MATTER WITH HIM MERELY AS A CHARADE TO GIVE ITS ILLEGAL
 DECISION THE APPEARANCE OF LEGITIMACY.
 
    IN THE CIRCUMSTANCES I CONCLUDE THAT THE GENERAL COUNSEL HAS NOT MET
 THE BURDEN OF PROOF, AND I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ENTER THE FOLLOWING ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-32 BE, AND
 IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
                       JOHN H. FENTON
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 6, 1981
            WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE PRESENT CASE IS DECIDED ON THE BASIS OF E.O. 11491, AS
 AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
 PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLAINT.  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/ FOR WHAT IT IS WORTH, SANDERS EXPRESSED THE OPINION THAT THE
 DISCUSSIONS, IN FACT, CONSTITUTED NEGOTIATIONS. 
 
 
 

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