[ v03 p364 ]
03:0364(57)CA
The decision of the Authority follows:
3 FLRA No. 57
DEPARTMENT OF THE ARMY
FORT BRAGG SCHOOLS
Respondent
and
NORTH CAROLINA FEDERATION OF
TEACHERS, AFT, AFL-CIO
Labor Organization
Case Nos. 4-CA-148
4-CA-149
4-CA-150
4-CA-151
4-CA-152
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (45 F.R. 3511, JANUARY 17, 1980) AND SECTION 7118 OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET
SEQ.), 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, INCLUDING THE RESPONDENT'S
EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. IN ADOPTING THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS,
THE AUTHORITY HAS NOT CONSIDERED ANY ISSUES NOT RAISED IN THE
PROCEEDINGS BEFORE THE ADMINISTRATIVE LAW JUDGE, IN ACCORDANCE WITH
SECTION 2429.5 OF THE AUTHORITY'S RULES AND REGULATIONS (45 F.R. 3517)
WHICH STATES, IN PERTINENT PART, "(T)HE AUTHORITY WILL NOT CONSIDER . .
. ANY ISSUE . . .WHICH WAS NOT PRESENTED IN THE PROCEEDINGS BEFORE THE .
. . ADMINISTRATIVE LAW JUDGE . . . "
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE ARMY, FORT BRAGG
SCHOOLS, FORT BRAGG, NORTH CAROLINA, SHALL:
1. CEASE AND DESIST FROM:
(A) PERMITTING SCHOOL PRINCIPALS OR OTHER SUPERVISORS TO ATTEND DULY
AUTHORIZED INFORMATIONAL MEETINGS DESIGNED TO SOLICIT THE MEMBERSHIP OF
TEACHERS IN THE NORTH CAROLINA FEDERATION OF TEACHERS, AFT, AFL-CIO, OR
ANY OTHER LABOR ORGANIZATION.
(B) PERMITTING THE SUPERINTENDENT OF SCHOOLS, OR ANY OTHER
REPRESENTATIVE OF MANAGEMENT, TO MAKE STATEMENTS WHICH TEND TO
DISCOURAGE EMPLOYEES FROM ENGAGING IN COLLECTIVE BARGAINING.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING 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 STATUTE:
(A) POST AT ITS FACILITIES LOCATED IN FORT BRAGG, NORTH CAROLINA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE INSTALLATION COMMANDER AT FORT BRAGG, FORT BRAGG, NORTH CAROLINA,
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
INSTALLATION COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR OF REGION IV, SUITE 501, 1776
PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 10, 1980.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT PERMIT SCHOOL PRINCIPALS OR OTHER SUPERVISORS TO ATTEND
DULY AUTHORIZED INFORMATIONAL MEETINGS DESIGNED TO SOLICIT THE
MEMBERSHIP OF TEACHERS IN THE NORTH CAROLINA FEDERATION OF TEACHERS,
AFT, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT PERMIT THE SUPERINTENDENT OF SCHOOLS, OR ANY OTHER
REPRESENTATIVE OF MANAGEMENT, TO MAKE STATEMENTS WHICH TEND TO
DISCOURAGE EMPLOYEES FROM ENGAGING IN COLLECTIVE BARGAINING.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
. . . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
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 QUESTION 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 IV,
WHOSE ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS (404) 881-2324.
FEBRUARY 14, 1980
MEMORANDUM TO: THE FEDERAL LABOR RELATIONS AUTHORITY
FROM: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
PURSUANT TO SECTION 2423.26(B) OF THE FINAL RULES AND REGULATIONS
(FEDERAL REGISTER, VOL. 45, NO. 12, JANUARY 17, 1980), I AM HEREBY
TRANSFERRING THE ABOVE CASE TO THE AUTHORITY. ENCLOSED ARE COPIES OF MY
DECISION AND THE TRANSMITTAL FORM SENT TO THE PARTIES. I AM
TRANSMITTING DIRECTLY TO THE AUTHORITY THE ORIGINAL AND ADDITIONAL
COPIES OF MY DECISION AS WELL AS THE TRANSCRIPT, EXHIBITS, BRIEFS,
COPIES OF THE SERVICE SHEET AND TRANSMITTAL FORM.
ENCLOSURES
NOTICE OF TRANSMITTAL OF DECISION AND ORDER
THE ABOVE-ENTITLED CASE HAVING BEEN HEARD BEFORE THE UNDERSIGNED
ADMINISTRATIVE LAW JUDGE PURSUANT TO THE STATUTE AND THE FINAL RULES AND
REGULATIONS OF THE AUTHORITY, THE UNDERSIGNED HEREBY SERVES HIS
DECISION, A COPY OF WHICH IS ATTACHED HERETO, ON ALL PARTIES TO THE
PROCEEDING ON THIS DATE, AND THIS CASE IS HEREBY TRANSFERRED TO THE
FEDERAL LABOR RELATIONS AUTHORITY PURSUANT TO SECTION 2423.26(B) OF THE
FINAL RULES AND REGULATIONS. (FEDERAL REGISTER, VOL. 45, NO. 12,
JANUARY 17, 1980).
PLEASE BE ADVISED THAT IF ANY PARTY WISHES TO FILE EXCEPTIONS TO THE
ATTACHED DECISION AND ORDER, PURSUANT TO SECTION 2423.26(C), SUCH
EXCEPTIONS MUST BE FILED WITH THE AUTHORITY IN WASHINGTON, D.C., ON, OR
BEFORE MARCH 10, 1980. EXCEPTIONS SHOULD BE ADDRESSED TO:
FEDERAL LABOR RELATIONS AUTHORITY
ROOM 7469
1900 E STREET, N.W.
WASHINGTON, D.C. 20424
PLEASE BE FURTHER ADVISED THAT, PURSUANT TO SECTION 2423.29(A) OF THE
FINAL RULES AND REGULATIONS, UNLESS EXCEPTIONS ARE TIMELY FILED, AND ARE
IN ACCORDANCE WITH SECTION 2423.27, THE AUTHORITY MAY, AT ITS
DISCRETION, ADOPT WITHOUT DISCUSSION THE DICISION OF THE ADMINISTRATIVE
LAW JUDGE.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 14, 1980
WASHINGTON, D.C.
SAMUEL S. HORN, ESQ.
OFFICE OF THE JUDGE ADVOCATE GENERAL
FORT BRAGG, NORTH CAROLINA 20310
CAPTAIN JAMES J. LYNCH, ESQ.
CAPTAIN ALLAN AIRMANS, ESQ.
OFFICE OF THE STAFF JUDGE ADVOCATE
18TH AIRBORNE CORPS
FORT BRAGG, NORTH CAROLINA 28307
FOR THE RESPONDENT
DOUGLAS E. CANDERS, ESQ.
112 OLD STREET
FAYETTEVILLE, NORTH CAROLINA 28301
FOR THE CHARGING PARTY
WILLIAM N. CATES, ESQ.
REGIONAL ATTORNEY
MATHILDA L. GENOVESE, ESQ.
ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
FOR THE GENERAL COUNSEL
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THESE CASES AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF
A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED ON SEPTEMBER 18,
1979, BY THE REGIONAL DIRECTOR, REGION IV, FEDERAL LABOR RELATIONS
AUTHORITY, ATLANTA, GEORGIA, AGAINST THE DEPARTMENT OF THE ARMY, FORT
BRAGG SCHOOLS.
THE COMPLAINT ALLEGED THAT RESPONDENT VIOLATED 5 U.S.C. 7116(A)(1)
WHEN THE SUPERINTENDENT OF SCHOOLS ALLEGEDLY SPOKE AGAINST COLLECTIVE
BARGAINING AT A UNION ORGANIZATIONAL MEETING (4-CA-148). IT ALSO
ALLEGED FOUR ADDITIONAL VIOLATIONS OF THAT SECTION WHEN UNION
INFORMATIONAL MEETINGS AT FOUR SEPARATE SCHOOLS WERE ATTENDED BY THEIR
RESPECTIVE PRINCIPALS (4-CA-149, 150, 151, 152). RESPONDENT DENIES EACH
OF THESE ALLEGATIONS AND ALSO MOVES TO DISMISS THE COMPLAINT ON THE
GROUND THAT THE AUTHORITY LACKS JURISDICTION OVER THESE EMPLOYEES.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT FORT
BRAGG, NORTH CAROLINA, ON NOVEMBER 27, 1979. ALL PARTIES WERE
REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
RELEVANT EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. ALL PARTIES
FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER:
FINDINGS AND CONCLUSIONS
JURISDICTION
THE FIRST ISSUE FOR CONSIDERATION IS WHETHER THE AUTHORITY HAS
JURISDICTION OVER THE TEACHERS AT THE FORT BRAGG SCHOOLS. RESPONDENT
ARGUES THAT THEY ARE NOT "EMPLOYEES" WITHIN THE MEANING OF SEC.
7103(A)(2) OF THE STATUTE, 5 U.S.C. 7103(A)(2). THE STATUTE GENERALLY
STATES THAT IT PRESCRIBES CERTAIN RIGHTS AND OBLIGATIONS OF THE
"EMPLOYEES OF THE FEDERAL GOVERNMENT." 5 U.S.C. 7101(B). AN "EMPLOYEE)
IS DEFINED, IN PART, AS AN INDIVIDUAL "EMPLOYED IN AN AGENCY." 5 U.S.C.
7103(A)(2). THE SECTION PROVIDES FOR FIVE SPECIFIED EXCEPTIONS (E.G.,
SUPERVISORS) HAVING NO RELEVANCE TO THIS CASE.
1. RELATIONSHIP BETWEEN THE DEPARTMENT OF THE ARMY AND THE SCHOOL
SYSTEM.
RESPONDENT ARGUES THAT ALL THE EMPLOYEES OF THE FORT BRAGG SCHOOLS,
INCLUDING THE SUPERINTENDENT, ARE "INDEPENDENT CONTRACTORS" AND THAT, AS
SUCH, THE ENTIRE SCHOOL SYSTEM IS AN ENTITY SEPARATE AND APART FROM THE
FEDERAL GOVERNMENT, I.E. THE RESPONDENT DEPARTMENT OF THE ARMY. /1/ I
DISAGREE.
THE FORT BRAGG SCHOOLS WERE ESTABLISHED PURSUANT TO SECTION 6, TITLE
I, PUBLIC LAW 81-874, 20 U.S.C. 241 (HEREINAFTER "SECTION 6"). THE
HISTORY OF THAT LAW INDICATES THAT IT WAS THE INTENT OF CONGRESS THAT,
WHEREVER POSSIBLE, FREE PUBLIC EDUCATION FOR CHILDREN LIVING ON FEDERAL
PROPERTY WOULD BE PROVIDED BY THE REGULARLY CONSTITUTED STATE AND LOCAL
EDUCATIONAL AGENCIES. HOWEVER, IT WAS RECOGNIZED THAT IN CERTAIN CASES
THE LATTER WOULD NOT BE ABLE TO PROVIDE SUCH EDUCATION. IN SUCH CASES,
SECTION 6 AUTHORIZED THE ESTABLISHMENT OF SCHOOLS BY THE FEDERAL
GOVERNMENT. THE FORT BRAGG SCHOOL SYSTEM FALLS INTO THIS CATEGORY.
RESPONDENT'S ARGUMENT THAT THE SUPERINTENDENT, PRINCIPALS, AND
TEACHERS AT THE FORT BRAGG SCHOOLS ARE INDEPENDENT CONTRACTORS IS BASED
ON THE FACT THAT THEY ARE ALL EMPLOYED UNDER PERSONAL SERVICE CONTRACTS.
HOWEVER, THE FACT THAT THEY ARE DESIGNATED AS "CONTRACTORS" IN THEIR
CONTRACTS IS OF MINOR SIGNIFICANCE FOR THE PURPOSE OF DETERMINING
WHETHER AN INDIVIDUAL IS AN "INDEPENDENT CONTRACTOR" OR WORKS UNDER A
"MASTER-SERVANT" RELATIONSHIP AS THOSE TERMS ARE USED IN THE LAW OF
AGENCY. UNDER COMMON LAW, THE MOST IMPORTANT ELEMENT IN A
MASTER-SERVANT RELATIONSHIP IS THE RIGHT TO CONTROL THE WORK ACTIVITIES
OF THE INDIVIDUAL; THE LABELS USED BY THE PARTIES ARE RELATIVELY
UNIMPORTANT. W. SEAVEY, AGENCY, SEC. 84 (1964). /2/
I HAVE CONCLUDED THAT THE ARMY HAS A RIGHT TO CONTROL THE EMPLOYEES
OF THE FORT BRAGG SCHOOL SYSTEM AND THAT THE LATTER IS AN INTEGRAL PART
OF THE DEPARTMENT OF THE ARMY. RESPONDENT'S ARGUMENT THAT ALL SCHOOL
EMPLOYEES, INCLUDING THE SUPERINTENDENT AND PRINCIPALS, ARE INDEPENDENT
CONTRACTORS IS CONTRARY TO RESPONDENT'S OWN REGULATIONS. IN THIS REGARD
ARMY REGULATION ("AR") 352-3, EFFECTIVE APRIL 1, 1976, STATES IN PART:
SEC. 3-2 . . . PERSONNEL EMPLOYED IN SECTION 6 DEPENDENTS SCHOOLS
(SUCH AS FORT BRAGG) ARE
EMPLOYED UNDER CONDITIONS WHICH MEET THE TESTS OF FEDERAL EMPLOYMENT
IN S3-3A, FEDERAL
PERSONNEL MANUAL SUPPLEMENT 831-1.
SECTION S3-3A, F.P.M. SUPP. 831-1, GENERALLY DEFINES FEDERAL
EMPLOYEES AS THOSE WHO ARE (1) ENGAGED IN FEDERAL FUNCTIONS UNDER AN ACT
OF CONGRESS OR EXECUTIVE ORDER, (2) APPOINTED OR EMPLOYED BY A FEDERAL
OFFICER. THUS AR 352-3 PROVIDES THAT ALL PERSONNEL AT THE FORT BRAGG
SCHOOLS, INCLUDING THE SUPERINTENDENT, WORK UNDER THE SUPERVISION AND
DIRECTION OF FEDERAL OFFICERS OF THE DEPARTMENT OF THE ARMY.
THE ARMY REGULATIONS ALSO PROVIDE FURTHER EVIDENCE THAT THE
DEPARTMENT OF THE ARMY HAS THE POWER TO CONTROL PERSONNEL IN THE INSTANT
SCHOOLS. FOR EXAMPLE, SECTION 2-1 OF AR 352-3 PROVIDES THAT THE ADJUTANT
GENERAL IS RESPONSIBLE FOR THE OPERATION AND ADMINISTRATION OF THE
SECTION 6 SCHOOL PROGRAM, AND THAT THE DIRECTOR OF PERSONNEL AND
COMMUNITY ACTIVITIES IS NORMALLY RESPONSIBLE AT THE INSTALLATION LEVEL.
SECTION 2-2 STATES THAT THE INSTALLATION COMMANDER IS RESPONSIBLE FOR
APPROVING THE REVIEWING THE ACTIONS OF THE SCHOOL BOARD. /3/ FINALLY,
ARMY PROCUREMENT PROCEDURE, SECTION 4-5602(A), REFERS TO THESE SCHOOLS
AS "ARMY OPERATED SCHOOLS".
IT IS CLEAR, THEN, THAT FORT BRAGG SCHOOL PERSONNEL ARE "EMPLOYEES"
AS THAT TERM IS USED IN THE LAW OF AGENCY, /4/ AND THAT ALL SUCH
EMPLOYEES, INCLUDING THE SUPERINTENDENT, ARE SUBJECT TO THE SUPERVISION
AND CONTROL OF THE DEPARTMENT OF THE ARMY. THEREFORE, I MUST DISAGREE
WITH RESPONDENT'S ARGUMENT THAT THE SCHOOL SYSTEM IS A SEPARATE AND
AUTONOMOUS ENTITY FROM THE DEPARTMENT OF THE ARMY.
2. FORT BRAGG TEACHERS ARE "EMPLOYEES" PROTECTED BY THE STATUTE.
THE STATUTE DEFINES AN "EMPLOYEE", IN RELEVANT PART, AS AN INDIVIDUAL
EMPLOYED IN AN AGENCY. 5 U.S.C. 7103(A)(2). THAT SECTION THEN
SPECIFICALLY ENUMERATES ONLY FIVE CATEGORIES OF PEOPLE WHO ARE NOT
INCLUDED IN THE DEFINITION (E.G., SUPERVISORS). SINCE TEACHERS EMPLOYED
AT "SECTION 6" SCHOOLS SUCH AS THOSE AT FORT BRAGG ARE NOT LISTED AS AN
EXCLUDED CATEGORY, IT WOULD APPEAR THAT THESE GOVERNMENT EMPLOYEES ARE
PROTECTED BY THE STATUTE. HOWEVER, RESPONDENT ARGUES THAT SECTION 6,
TITLE I OF PUBLIC LAW 81-874, 20 U.S.C. 241, WHICH INITIALLY AUTHORIZED
THE HIRING OF THESE EMPLOYEES, PLACES THEM IN A UNIQUE CATEGORY WHICH
CONGRESS DID NOT SEEK TO PROTECT BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE. SECTION 6 PROVIDES, IN PART, AS FOLLOWS:
. . . TO THE MAXIMUM EXTENT PRACTICABLE . . . THE HEAD OF THE FEDERAL
DEPARTMENT OR AGENCY
. . . SHALL TAKE SUCH ACTION AS MAY BE NECESSARY TO ENSURE THAT THE
EDUCATION PROVIDED
PURSUANT TO SUCH ARRANGEMENT IS COMPARABLE TO FREE PUBLIC EDUCATION
PROVIDED FOR CHILDREN IN
COMPARABLE COMMUNITIES IN THE STATE . . . FOR THE PURPOSE OF
PROVIDING SUCH COMPARABLE
EDUCATION, PERSONNEL MAY BE EMPLOYED AND THE COMPENSATION, TENURE,
LEAVE, HOURS OF WORK, AND
OTHER INCIDENTS OF THE EMPLOYMENT RELATIONSHIP MAY BE FIXED WITHOUT
REGARD TO THE CIVIL
SERVICE ACT AND RULES AND THE FOLLOWING: (1) THE CLASSIFICATION ACT
OF 1949, AS AMENDED; (2)
THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED; (3) THE FEDERAL
EMPLOYEES' PAY ACT OF 1945,
AS AMENDED; (4) THE VETERANS' PREFERENCE ACT OF 1944, AS AMENDED,
AND (5) THE PERFORMANCE
RATING ACT OF 1950, AS AMENDED. 20 U.S.C. 241(A).
RESPONDENT ARGUES THAT THE ABOVE-QUOTED SECTION "MANDATES" THAT THE
WORKING CONDITIONS AND RIGHTS OF THE FORT BRAGG TEACHERS BE EQUIVALENT
TO THOSE OF NORTH CAROLINA STATE PUBLIC SCHOOL TEACHERS. THE LATTER ARE
FORBIDDEN FROM ENTERING INTO COLLECTIVE BARGAINING AGREEMENTS BY STATE
LAW. N.C. GEN. STAT. SEC. 95-98 (REPL. VOL. 1965). I DISAGREE WITH
RESPONDENT'S CONSTRUCTION.
FIRST, CONGRESS WAS ATTEMPTING TO PROVIDE "COMPARABLE EDUCATION" FOR
CHILDREN WHERE LOCAL AGENCIES WERE UNABLE TO SUPPLY FACILITIES. IT WAS
ONLY "FOR THE PURPOSE OF PROVIDING SUCH COMPARABLE EDUCATION" THAT
CONGRESS SAID PERSONNEL, SUCH AS TEACHERS, "MAY" BE EMPLOYED AND THE
INCIDENTS OF THE EMPLOYMENT RELATIONSHIP "MAY" BE FIXED WITHOUT REGARD
TO CERTAIN SPECIFICALLY ENUMERATED ACTS OF CONGRESS. THUS IN ORDER TO
ATTAIN THE DESIRABLE END OF COMPARABLE EDUCATION, CONGRESS GAVE THE
RESPONSIBLE AGENCIES THE OPTION OF EXEMPTING THEIR SCHOOL PERSONNEL FROM
CERTAIN SPECIFIED STATUTES. THUS CONGRESS DID NOT INTEND TO "MANDATE"
ANYTHING REGARDING WORKING CONDITIONS AS THEY RELATE TO THE ENUMERATED
ACTS.
SECONDLY, 20 U.S.C. 241, AS PRESENTLY AMENDED, DOES NOT PROVIDE FOR
AN EXEMPTION FROM THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE. SECTION 241 WAS AMENDED IN 1965 TO NAME FIVE ADDITIONAL ACTS
(ONLY THE CIVIL SERVICE ACT WAS PREVIOUSLY NAMED) FROM WHICH THE
PERSONNEL COULD BE EXEMPTED. AT THAT TIME, EXECUTIVE ORDER 10988, A
PREDECESSOR OF THE FSLMR STATUTE HAD BEEN IN EFFECT SINCE JANUARY OF
1962. HOWEVER, THE RIGHTS CONFERRED BY E.O. 10988 WERE NOT TAKEN AWAY
BY THE 1965 AMENDMENT. IF CONGRESS HAD INTENDED TO DO SO, IT WOULD HAVE
SPECIFICALLY MENTIONED THAT EXECUTIVE ORDER. RESPONDENT'S ARGUMENT THAT
THE ENUMERATED ACTS OF CONGRESS ARE "NOT AN ALL-INCLUSIVE LIST"
CONSTITUTES AN UNREASONABLE CONSTRUCTION OF SECTION 241, 5 U.S.C. 241.
THE COMPTROLLER GENERAL OF THE UNITED STATES HAD HELD THAT SECTION 6
SCHOOL EMPLOYEES ARE ENTITLED TO THE RIGHTS GIVEN BY THE BACK PAY ACT OF
1966, 5 U.S.C. 5596. FORT RUCKER ELEMENTARY SCHOOL EMPLOYEES, . . .
COMP. GEN. . . . (1979), FILE B-102528, APRIL 20, 1979. THAT CASE ALSO
CITES ADDITIONAL COMPTROLLER GENERAL DECISIONS HOLDING THAT SECTION 6
SCHOOL EMPLOYEES ARE SUBJECT TO ALL STATUTES PERTAINING TO GOVERNMENT
EMPLOYMENT EXCEPT THOSE FOR WHICH AN EXEMPTION IS SPECIFICALLY
AUTHORIZED. SECTION 241 DOES NTO SPECIFICALLY AUTHORIZE AN EXEMPTION
WITH RESPECT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
THEREFORE, I MUST CONCLUDE AND HOLD THAT THE FORT BRAGG TEACHERS ARE
"EMPLOYEES" PROTECTED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, 5 U.S.C. 7101, ET SEQ. /5/ RESPONDENT'S MOTION TO DISMISS FOR
LACK OF JURISDICTION IS DENIED.
SURVEILLANCE
THE NEXT ISSUE IS WHETHER THE ATTENDANCE OF SCHOOL PRINCIPALS AT
SEVERAL UNION INFORMATIONAL MEETINGS HELD FOR THE TEACHERS CONSTITUTED A
VIOLATION OF 5 U.S.C. 7116(A)(1).
DURING THE FIRST FEW MONTHS OF 1979, VIRGINIA D. RYAN, STATE DIRECTOR
OF THE NORTH CAROLINA FEDERATION OF TEACHERS, AFT, AFL-CIO, ("AFT")
CONTACTED DR. HAYWOOD DAVIS, THE SUPERINTENDENT OF THE FORT BRAGG
SCHOOLS. HER PURPOSE WAS TO GET PERMISSION TO USE SCHOOL MAILBOXES,
BULLETIN BOARDS, AND ROOMS IN ORDER TO ORGANIZE A NEW AFT CHAPTER AND
SOLICIT MEMBERSHIP AMONG THE TEACHERS. /6/ ON APRIL 19 DAVIS GRANTED
HER REQUEST AND TOLD HER THAT MEETINGS COULD BE HELD IN THE VARIOUS
SCHOOLS AT 3:30 P.M. /7/
ON APRIL 24, 1979, RYAN CONTACTED DONALD H. ORR, PRINCIPAL OF THE
IRWIN JUNIOR HIGH SCHOOL. SHE SCHEDULED A MEETING WITH THE IRWIN
TEACHERS FOR MAY 2 AND TOLD ORR THAT HE SHOULD NOT ATTEND UNION
INFORMATIONAL MEETINGS. SHE EXPLAINED THE HISTORY AND OBJECTIVES OF AFT
OR ORR AT AN INFORMAL GATHERING ON APRIL 24.
RYAN MET WITH SUPERINTENDENT DAVIS ON MAY 2 AND REQUESTED THAT HE ASK
THE SCHOOL PRINCIPALS NOT TO ATTEND AFT INFORMATIONAL MEETINGS. DAVIS
IMMEDIATELY GOT A LEGAL OPINION ON THE MATTER BY TELEPHONE AND INFORMED
HER THAT HE COULD NOT PREVENT THEIR ATTENDANCE. SUBSEQUENTLY, AT 3:30
P.M., RYAN HELD THE SCHEDULED MEETING AT IRWIN SCHOOL WITH ABOUT 12
TEACHERS. PRINCIPAL ORR AND HIS ASSISTANT WERE IN ATTENDANCE. RYAN
DISCUSSED THE HISTORY OF AFT AND SOME OF THE BENEFITS, GOALS AND
OBJECTIVES OF THE ORGANIZATION; SHE ALSO DISCUSSED THE RIGHTS GRANTED
TO EMPLOYEES AND EXPLAINED HOW AFT COULD HELP THE FORT BRAGG TEACHERS IN
THIS REGARD. AFT LITERATURE AND MEMBERSHIP APPLICATIONS WERE MADE
AVAILABLE TO THE TEACHERS AT THE MEETING. THE MEETING INCLUDED A
QUESTION AND ANSWER PERIOD.
SUBSEQUENTLY, RYAN HELD IDENTICAL MEETINGS WITH SEVEN TO 10 TEACHERS
AT THE MCNAIR ELEMENTARY SCHOOL (MAY 3), BOWLEY ELEMENTARY SCHOOL (MAY
8), AND BUTNER ELEMENTARY SCHOOL (MAY 10). THE MAY 3 MEETING WAS
ATTENDED BY PRINCIPAL RICHARD M. ENSLEY, THE MAY 8 MEETING BY PRINCIPAL
FORREST H. DESHIELDS, AND THE MAY 10 MEETING BY PRINCIPAL STAHLE H.
LEONARD, JR. IN EACH CASE THE PRINCIPAL WAS SITTING IN FULL VIEW OF ALL
TEACHERS ATTENDING. DESHIELDS ATTENDED IN SPITE OF RYAN'S SPECIFIC
REQUEST TO HIM JUST BEFORE THE MAY 8 MEETING THAT HE NOT ATTEND AND HER
WARNING THAT SHE MIGHT HAVE TO FILE A CHARGE AGAINST HIM IF HE DID.
COUNSEL FOR THE GENERAL COUNSEL ARGUES THAT THE PRESENCE OF THE
PRINCIPALS AT THE FOUR ABOVE-MENTIONED INFORMATIONAL AND ORGANIZATIONAL
MEETINGS CONSTITUTED A VIOLATION OF 5 U.S.C. 7116(A)(1) BECAUSE, IN EACH
CASE, IT INTERFERED WITH, RESTRAINED, OR COERCED THE EMPLOYEES IN THE
EXERCISE OF THEIR SEC. 7102 RIGHTS TO FORM, JOIN OR ASSIST A LABOR
ORGANIZATION. IT IS WELL SETTLED IN THE PRIVATE SECTOR THAT OVERT
SURVEILLANCE BY MANAGEMENT SUPERVISORS OF EMPLOYEES WHILE THE LATTER ARE
ATTENDING UNION ORGANIZATIONAL MEETINGS IS PROHIBITED BY SEC. 8(A)(1) OF
THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 158(A)(1) BECAUSE IT
INTERFERES WITH COMPARABLE PROTECTED RIGHTS. NATIONAL LABOR RELATIONS
BOARD V. COLLINS & AIKMAN CORP., 146 F2D 454 (4TH CIR. 1944); N.L.R.B.
V. M & B HEADWEAR CO., 349 F2D 170, 172 (4TH CIR. 1965).
RESPONDENTS ARGUE THAT THE EMPLOYEES IN THE INSTANT CASE WERE NOT
SHOWN TO BE AFFECTED BY THE PRESENCE OF THE SCHOOL PRINCIPALS. HOWEVER,
THIS IS NOT A NECESSARY ELEMENT OF PROOF TO SUSTAIN A VIOLATION. THE
TEST IS WHETHER THE ACTION BY THE SUPERVISORS "TENDED" TO HAVE A
CHILLING EFFECT ON THE EXERCISE BY THE EMPLOYEES OF THEIR PROTECTED
RIGHTS. N.L.R.B. V. HUNTSVILLE MANUFACTURING CO., 514 F2D 723, 724
(5TH CIR. 1975). IN THE INSTANT CASE THE TEACHERS WERE AWARE THAT THEIR
IMMEDIATE SUPERVISOR WAS WATCHING THEM AND, FOR EXAMPLE, WAS IN A
POSITION TO TAKE NOTE OF ANY INDICATION DURING THE QUESTION AND ANSWER
PERIOD OF AN EMPLOYEE'S INTEREST IN HOW WORKING CONDITIONS COULD BE
IMPROVED BY MEANS OF COLLECTIVE BARGAINING. IT IS REASONABLE TO INFER
THAT SOME EMPLOYEES MIGHT HAVE FELT INHIBITED BY THE PRESENCE OF THEIR
SUPERVISOR FROM SHOWING AN INTEREST AND ASKING QUESTIONS. SOME MAY HAVE
BEEN CONCERNED THAT THEIR SUPERVISOR EVEN KNEW THAT THEY ATTENDED THE
MEETING FOR FEAR OF SUBSEQUENT REPRISAL. /8/ THE MEETINGS IN QUESTION
WERE DESIGNED AND ADVERTISED FOR TEACHERS, NOT PRINCIPALS; THEREFORE,
THE AWKWARD PRESENCE OF THE PRINCIPALS TENDED TO HIGHLIGHT THEIR ANXIETY
ABOUT UNION ORGANIZATION. /9/ ACCORDINGLY, IT IS HELD THAT THE PRESENCE
OF THE PRINCIPALS TENDED TO INTERFERE WITH, RESTRAIN, OR COERCE THE
TEACHERS IN THE EXERCISE OF THEIR RIGHTS TO FORM, JOIN, OR ASSIST A
LABOR ORGANIZATION.
THE SUPERINTENDENT'S STATEMENT
THE FINAL ISSUE IS WHETHER RESPONDENT VIOLATED SECTION 7116(A)(1) OF
THE STATUTE WHEN THE SUPERINTENDENT OF THE FORT BRAGG SCHOOLS MADE A
STATEMENT TO A GROUP OF EMPLOYEE TEACHERS.
ON MAY 14, 1979, THE NORTH CAROLINA ASSOCIATION OF EDUCATORS ("NCAE")
HELD A MEETING AT THE IRWIN SCHOOL FOR THE PURPOSE OF ENLIGHTENING THE
TEACHERS AT FORT BRAGG ABOUT COLLECTIVE BARGAINING. THE SPEAKER WAS A
REPRESENTATIVE FROM THE STATE OFFICE OF NCAE. THE MEETING WAS ATTENDED
BY ABOUT 50 OR 60 TEACHERS AND THE SUPERINTENDENT OF THE FORT BRAGG
SCHOOLS, DR. HAYWOOD DAVIS.
AT ONE POINT DURING THE QUESTION AND ANSWER PERIOD AFTER THE LECTURE,
THE SPEAKER WAS IN THE PROCESS OF EXPLAINING THE PROCESS BY WHICH THE
TEACHERS COULD OBTAIN COLLECTIVE BARGAINING. HE NOTED THAT IT WOULD BE
NECESSARY FOR A CERTAIN NUMBER OF TEACHERS TO REQUEST IT. AT THIS POINT
SUPERINTENDENT DAVIS WALKED UP TO THE PODIUM AND MADE A STATEMENT TO THE
AUDIENCE. THE INTENT AND EFFECT OF DAVIS' STATEMENT WAS TO DISCOURAGE
THE TEACHERS FROM FILING A PETITION WITH THE AUTHORITY FOR COLLECTIVE
BARGAINING. HE TOLD THE TEACHERS THAT ALTHOUGH HE SUPPORTED THE RIGHT
OF ANY TEACHER TO JOIN ANY LABOR ORGANIZATION, HE DID NOT WANT TO SEE
COLLECTIVE BARGAINING IN HIS SCHOOL SYSTEM BECAUSE IT WOULD PUT
ADMINISTRATORS AND TEACHERS "ON OPPOSITE SIDES OF THE TABLE." HE
PREFACED HIS REMARKS BY ACKNOWLEDGING THAT IT MIGHT BE IMPROPER FOR HIM
TO MAKE SUCH A STATEMENT, BUT THAT HE WISHED ALL OF HIS TEACHERS WERE
THERE TO HEAR IT. /10/
THE GENERAL COUNSEL AND THE CHARGING PARTY BOTH ARGUE THAT THE ABOVE
STATEMENT VIOLATED 5 U.S.C. 7116(A)(1) BECAUSE IT INTERFERED WITH,
RESTRAINED, OR COERCED THE EMPLOYEE TEACHERS IN THE EXERCISE OF THEIR
RIGHTS UNDER THE STATUTE. SECTION 7102 GIVES EACH EMPLOYEE THE RIGHT TO
FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL. THIS RIGHT SPECIFICALLY INCLUDES THE RIGHT TO
ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF EMPLOYMENT
THROUGH CHOSEN REPRESENTATIVES. 5 U.S.C. 7102(2). THE SUPERINTENDENT'S
STATEMENT AT THE MAY 14 MEETING CLEARLY INTERFERED WITH AND RESTRAINED
THE FORT BRAGG TEACHERS FROM EXERCISING THEIR PROTECTED RIGHT TO ENGAGE
IN COLLECTIVE BARGAINING. THE CHARGING PARTY, AFT, ONLY A FEW DAYS
EARLIER, HAD CONDUCTED SEVERAL MEETINGS WITH THE TEACHERS TO EXPLAIN
COLLECTIVE BARGAINING AND SOLICIT MEMBERSHIP. DAVIS' STATEMENT HAD THE
EFFECT OF DISCOURAGING THIS EFFORT. MOREOVER, DAVIS' REMARKS WERE
PARTICULARLY COERCIVE SINCE HE WAS IN CHARGE OF THE ENTIRE FORT BRAGG
SCHOOL SYSTEM, INCLUDING THE DISCIPLINE AND ANNUAL REHIRING OF THE
TEACHERS. IT IS IRRELEVANT THAT DAVIS DID NOT SPECIFICALLY THREATEN THE
EMPLOYEES WITH REPRISAL IF THEY DID NOT ACT IN ACCORDANCE WITH HIS
WISHES. /11/ ACCORDINGLY, IT IS HELD THAT RESPONDENT VIOLATED SECTION
7116(A)(1) OF THE STATUTE.
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT THE DEPARTMENT OF THE ARMY, FORT BRAGG SCHOOLS, FORT BRAGG,
NORTH CAROLINA, SHALL:
1. CEASE AND DESIST FROM:
(A) PERMITTING SCHOOL PRINCIPALS OR OTHER SUPERVISORS TO ATTEND DULY
AUTHORIZED INFORMATIONAL MEETINGS DESIGNED TO SOLICIT THE MEMBERSHIP OF
TEACHERS IN THE NORTH CAROLINA FEDERATION OF TEACHERS, AFT, AFL-CIO, OR
ANY OTHER LABOR ORGANIZATION;
(B) PERMITTING THE SUPERINTENDENT OF SCHOOLS, OR ANY OTHER
REPRESENTATIVE OF MANAGEMENT, TO MAKE STATEMENTS WHICH TEND TO
DISCOURAGE EMPLOYEES FROM ENGAGING IN COLLECTIVE BARGAINING.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101, ET
SEQ.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE.
(A) POST AT ITS FACILITIES IN FORT BRAGG, NORTH CAROLINA, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
INSTALLATION COMMANDER AT FORT BRAGG, FORT BRAGG, NORTH CAROLINA, AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE INSTALLATION
COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
45 FED.REG. 15 3511, NOTIFY THE REGIONAL DIRECTOR OF REGION IV, SUITE
501, 1776 PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309, IN WRITING,
WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN
TAKEN TO COMPLY HEREWITH.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 14, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NTO PERMIT SCHOOL PRINCIPALS OR OTHER SUPERVISORS TO ATTEND
DULY AUTHORIZED INFORMATIONAL MEETINGS DESIGNED TO SOLICIT THE
MEMBERSHIP OF TEACHERS IN THE NORTH CAROLINA FEDERATION OF TEACHERS,
AFT, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION;
WE WILL NOT PERMIT THE SUPERINTENDENT OF SCHOOLS, OR ANY OTHER
REPRESENTATIVE OF MANAGEMENT, TO MAKE STATEMENTS WHICH TEND TO
DISCOURAGE EMPLOYEES FORM ENGAGING IN COLLECTIVE BARGAINING.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THE STATUTE.
. . . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 4, WHOSE
ADDRESS IS: SUITE 501, NORTH WING, 1776 PEACHTREE STREET, N.W.,
ATLANTA, GEORGIA 30309.
SERVICE SHEET
"DECISION" ISSUED BY ADMINISTRATIVE LAW JUDGE RANDOLPH D. MASON WAS
SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
SIGNATURE . . .
SAMULE S. HORN, ESQ.
OFFICE OF THE JUDGE ADVOCATE GENERAL
FORT BRAGG, NORTH CAROLINA 20310
CAPTAIN JAMES J. LYNCH, ESQ.
CAPTAIN ALLAN AIRMANS, ESQ.
OFFICE OF THE STAFF JUDGE ADVOCATE
18TH AIRBORNE CORPS
FORT BRAGG, NORTH CAROLINA 28307
DOUGLAS E. CANDERS, ESQ.
112 OLD STREET
FAYETTEVILLE, NORTH CAROLINA 28301
WILLIAM N. CATES, ESQ.
REGIONAL ATTORNEY
MATHILDA L. GENOVESE, ESQ.
ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
SUITE 501, NORTH WING
1776 PEACHTREE STREET, N.W.
ATLANTA, GEORGIA 30309
REGULAR MAIL:
FEDERAL LABOR RELATIONS AUTHORITY
1900 "E" STREET, N.W., RM. 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR
OFFICE OF THE GENERAL COUNSEL
1900 "E" STREET, N.W., RM. 7469
WASHINGTON, D.C. 20424
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, N.W.
WASHINGTON, D.C. 20415
/1/ RESPONDENT ADMITS, AND I FIND, THAT THESE INDIVIDUALS ARE PAID BY
THE ARMY, AND ARE ELIGIBLE FOR CIVIL SERVICE RETIREMENT, FEDERAL
EMPLOYEES GROUP LIFE INSURANCE, FEDERAL EMPLOYEES HEALTH BENEFITS
COVERAGE, AND SEVERANCE PAY.
/2/ THE TRADITIONAL COMMON LAW TESTS ARE DISPOSITIVE IN THE PRIVATE
SECTOR, WHERE INDEPENDENT CONTRACTORS ARE SPECIFICALLY EXCLUDED FROM THE
PROTECTION OF THE NATIONAL LABOR RELATIONS ACT AS AMENDED, 29 U.S.C.
152(3). N.L.R.B. V. UNITED INSURANCE COMPANY OF AMERICA, 390 U.S. 254,
88 S.CT. 988(1968). UNLIKE ITS PRIVATE SECTOR COUNTERPART, THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE DOES NOT SPECIFICALLY EXCLUDE
INDEPENDENT CONTRACTORS FROM PROTECTION. IN VIEW OF MY FINDING BELOW
THAT THE FORT BRAGG PERSONNEL ARE GOVERNMENT EMPLOYEES AND NOT
INDEPENDENT CONTRACTORS, I NEED NOT DECIDE WHETHER INDEPENDENT
CONTRACTORS MIGHT IN CERTAIN CASES BE PROTECTED BY THE STATUTE.
/3/ THE BOARD'S DUTIES INCLUDE ESTABLISHING POLICY, APPROVING THE
BUDGET, EXPENDITURES, PERSONNEL SELECTIONS, AND SELECTING THE
SUPERINTENDENT. ID.
/4/ RESPONDENT HAS NEVER SERIOUSLY ARGUED THAT THE RELATIONSHIP
BETWEEN THE SCHOOL PRINCIPALS AND THE TEACHERS WAS ANYTHING OTHER THAN A
"MASTER-SERVANT" RELATIONSHIP UNDER AGENCY LAW. ON BRIEF RESPONDENT
STATED THAT "THE POWER TO CONTROL THE DETAILED PERFORMANCE OF THE
PERSONNEL EMPLOYED BY THE FORT BRAGG SCHOOLS IS VESTED IN . . . (THE
SUPERINTENDENT AND PRINCIPALS) AND NOT THE DEPARTMENT OF THE ARMY."
(P.2). RESPONDENT WAS MERELY ATTEMPTING TO DIVORCE THE SCHOOL SYSTEM
FROM THE DEPARTMENT OF THE ARMY BY URGING THAT THE SCHOOL SUPERVISORS
WERE INDEPENDENT CONTRACTORS. IN ANY EVENT, THE FACTS OF RECORD CLEARLY
ESTABLISH THAT THE PRINCIPALS CONTROLLED THE DAILY DUTIES OF THE
TEACHERS.
/5/ RESPONDENT ALSO ARGUED THAT THE APPLICATION OF THE GRIEVANCE AND
ARBITRATION PROCEDURES OF THE STATUTE TO THESE EMPLOYEES WOULD
ULTIMATELY CONFLICT WITH PROCEDURES PROVIDED BY THE CONTRACT DISPUTES
ACT OF 1978, 41 U.S.C. 601, ET SEQ. SINCE NO SUCH CONFLICT EXISTS IN
THE INSTANT CASE, I NEED NOT ADDRESS THAT ISSUE. RESPONDENT ALSO ARGUED
THAT THE SECTION 6 SCHOOL PROGRAM IS ONLY TEMPORARILY BEING ADMINISTERED
BY THE FEDERAL GOVERNMENT, AND THAT IT WILL EVENTUALLY BE TURNED OVER TO
THE STATE GOVERNMENTS. THIS ARGUMENT FINDS NO SUPPORT IN THE LAW OR
LEGISLATIVE HISTORY; MOREOVER, THE FORT BRAGG SECTION 6 SCHOOL PROGRAM
HAS BEEN IN EXISTENCE FOR AT LEAST 25 YEARS.
/6/ THE FORT BRAGG FEDERATION OF TEACHERS, LOCAL 3976, WAS CHARTERED
ON JULY 1, 1979.
/7/ CHILDREN WERE EXPECTED TO BE OFF SCHOOL GROUNDS BY THAT TIME AND
THE TEACHERS' "NORMAL" DUTY DAY WAS OVER AT 3:45 P.M. (G.C. EX. 4, P.
32-33).
/8/ IN AN ANALOGOUS CASE IT WAS HELD THAT MANAGEMENT CANNOT
INTERROGATE AN EMPLOYEE CONCERNING THE NAMES AND NUMBER OF EMPLOYEES
WHO
HAD SIGNED A REPRESENTATION PETITION. FEDERAL ENERGY ADMINISTRATION,
REGION IV, ATLANTA, GEORGIA, A/SLMR NO. 541, 5 A/SLMR 509(1975).
/9/ RESPONDENT ARGUES THAT THE PRINCIPALS HAD A RIGHT TO ATTEND THE
MEETINGS SINCE THEY WERE ON FEDERAL PROPERTY. HOWEVER, MANAGEMENT
AUTHORIZED THE USE OF CERTAIN ROOMS FOR THE MEETINGS AND THERE IS NO
EVIDENCE THAT ANY APPROPRIATE FUNCTION OF MANAGEMENT WAS SERVED BY THE
ATTENDANCE OF THE PRINCIPALS.
/10/ FINDINGS WITH RESPECT TO DAVIS' STATEMENT ARE BASED ON THE
CREDIBLE TESTIMONY OF THREE TEACHERS; I DO NOT CREDIT DAVIS' TESTIMONY
THAT HE WAS MERELY TRYING TO SAY THAT IT IS POSSIBLE TO HAVE EXCLUSIVE
REPRESENTATION WITHOUT COLLECTIVE BARGAINING.
/11/ A CONTRARY RESULT MAY HAVE OBTAINED UNDER ONE UNENACTED BILL
WHICH PROVIDED THAT THE EXPRESSION OF ANY PERSONAL VIEWS WOULD NOT
CONSTITUTE AN UNFAIR LABOR PRACTICE IF IT DID NOT CONTAIN A "THREAT OF
REPRISAL OR FORCE OR PROMISE OF BENEFIT OR UNDUE COERCIVE CONDITIONS."
S.2640, 95TH CONG.,2D SESS., 7216(G). THIS SUBSECTION WAS ULTIMATELY
MODIFIED TO PROVIDE FOR LIMITED FREEDOM OF EXPRESSION IN THREE INSTANCES
NOT APPLICABLE HEREIN. 5 U.S.C. 7116(E).