[ v20 p20 ]
20:0020(3)CA
The decision of the Authority follows:
20 FLRA No. 3
FEDERAL ELECTION COMMISSION
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 3-CA-30508
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. Thereafter, the General Counsel filed
exceptions to the Judge's Decision and a supporting brief, and the
Respondent filed a response in opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and Section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
Thus, in agreement with the Judge, the Authority concludes that the
Respondent did not, in the specific circumstances of this case, violate
section 7116(a)(1) of the Statute. /1/ As found by the Judge, the
complaint alleges that the Respondent interfered with the protected
right of a unit employee, who is also a Union officer, by ordering the
employee to remove a poster from a passageway, or hallway, outside the
employee's office space. The Authority has 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. Department of Defense, Department of the
Air Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA
239(1983). The Authority has found, however, that the right of access
to a bulletin board may arise from a negotiated agreement or a "past
practice" allowing the Union and individuals to post material on
bulletin boards. Department of Labor, Office of Workers' Compensation
Programs, Branch of Special Claims, 11 FLRA 77 (1983). /2/ Since unions
and employees do not have a statutory right to post material on bulletin
boards, if 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. As the Authority
finds, in agreement with the Judge, that there is no evidence of an
agreement between the parties, or a past practice giving rise to a right
of the employees or the Charging Party to post notices in the hallways
or passageways of the Respondent's facility, no basis exists to support
a finding that the Respondent violated section 7116(a)(1) of the Statute
by requiring the removal of such material. /3/
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-30508 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 10, 1985
Henry B. Frazier, III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-60508
David B. Scholl, Esq.
Bruce D. Rosenstein, Esq.
For the General Counsel
Matthew D. Rennert, Esq.
For the Charging Party
David S. Orr
Colleen Newth
For the Respondent
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Regional Director of the
Third Region of the Federal Labor Relations Authority by the issuance of
a complaint and notice of hearing dated August 31, 1983. The complaint
was issued following an investigation of an unfair labor practice charge
filed on May 16, 1983 by National Treasury Employees Union, herein
referred to as Charging Party, Union, or NTEU. The complaint alleges
that the Federal Election Commission, herein the Respondent or FEC,
violated section 7116(a)(1) of the Statute when its agent, John D.
Gibson, on or about April 7, 1983, ordered a unit employee to remove an
NTEU poster which had been affixed to the unit employee's work desk /4/
located in the Reports Analysis Division on the third floor of the
building where Respondent is located. In its answer filed September 23,
1983, Respondent denies any statutory violations.
A hearing was held in Washington, D.C. at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by Respondent, Charging Party and the General Counsel have been
duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. The Union is a labor organization within the meaning of section
7103(a)(4) of the Statute.
2. The Respondent is an agency within the meaning of section
7103(a)(3) of the Statute. John D. Gibson is a supervisor and/or
management official within the meaning of section 7103(a)(10) and (11)
and an agent of Respondent.
3. Kathleen Kenney Brennan, herein referred to as Brennan, /5/ was
employed by Respondent from August of 1981 to August of 1983. From
July, 1982 until she voluntarily left the Respondent, she worked as a
reports analyst under the immediate supervision of Michael Filler. Her
third-line supervisor was John Gibson, Assistant Staff Director for
Respondent's Reports Analysis Division. As a reports analyst Brennan
was responsible for evaluating reports filed by political action
committees (PACs) as well as advising representatives of the PACs on
their legal reporting obligations. In performing these duties Brennan
and her co-workers would regularly come into contact with PAC
representatives via telephone and also would meet with such
representatives at Respondent's location.
4. Brennan also served as vice-president of the Union's Chapter 204
for approximately a year prior to leaving her job with Respondent. As
vice-president of Chapter 204, Brennan's duties were primarily
intra-union in nature, although she did have occasion to take part in
negotiations in which Gibson also played a role for Respondent. On
cross-examination, after being shown her pre-trial affidavit, Brennan
admitted she participated in union membership drives. She also admitted
that in April 1983 a membership drive was in progress. However, she
stated that the membership drive was something separate from the "WE'RE
FIGHTING BACK" campaign, which will be discussed later.
5. During the relevant time period Brennan's desk was located on
Respondent's third floor in an open area along with desks occupied by
three other employees. These four desks were in an area enclosed by
partitions except for entrances and exits to other work areas. There
were approximately by a total of five such partitioned work areas on
Respondent's third floor occupied by about thirty-five bargaining unit
employees. Supervisory and managerial employees occupied their own
offices. Someone from the public visiting Respondent's third floor
during the time period in question would come out of the elevators and
most likely go left, the direction opposite Brennan's work area, towards
the reception area. Gibson's office is directly adjacent to the
reception area.
6. In order to enter Brennan's work area one would go to the right
when coming off the elevator, in the direction opposite the reception
area, through a set of marked double doors, take three steps, turn left
and proceeded down a "hallway" about twelve feet long. Directly at the
end of this hallway was Brennan's desk facing anyone coming down the
hallway. Her view of the hallway (as well as anyone's view of her) was
blocked by a bookcase with four shelves which was placed upon the front
of her desk and which also served as a partition. When sitting at her
desk, Brennan faced the open book shelves. Thus, the back or outside
portion of her bookcase faced the hallway. As a result, any materials
or objects affixed to the outside of the bookcase would be in full view
of any employee or visitor utilizing this hallway.
7. A visitor seeking the office of Supervisor Michael Filler had a
choice of two routes after entering through the double doors. Based
upon the testimony of Brennan and Filler (Tr. 18, 33, 58), I conclude
that the normal route was to proceed down the twelve foot hallway to
Brennan's desk, turn right, and proceed past another employee's desk to
Filler's corner office. However, an alternate route was to proceed
straight ahead after entering through the double doors and eventually
turn left to Filler's corner office. Testimony was taken concerning the
frequency of public visitors to Filler's office. Ms. Brennan testified
as follows:
Q. Did you ever have occasion to meet with any of these people
from the public in an around your work area?
A. On occasion, Mike Filler would bring people back to his
office. These meetings were, I would say, were maybe three, four
times a week, but some weeks maybe there wouldn't be any.
And they were rare meetings really. And then, you know, very
few occasions, Mike might-- Mr. Filler might bring someone back
into his office.
Q. How many times would you say that you had a meeting with
somebody-- that Mr. Filler would meet with somebody from the
outside a week or on a monthly basis?
A. Well maybe two or three times, but maybe some weeks no one.
/6/
Q. And how many people would come at a single time?
A. Oh, from one to four.
Q. Where was your particular work area in relation to Mr.
Filler's office?
A. There was a desk next to mine and then Mr. Filler's office
was next to that.
Q. So when you did have these meetings, these occasional
meetings-- when Mr. Filler met with these people from the public
on occasion, would those people come by your work area?
A. Yes, they would.
Therefore, if I accept Brennan's testimony Filler had public visitors
3 or 4 times per week, or 2 or 3 times per week (but not every week),
for meetings which were "rare", "very few" or "on occasion." Filler, on
the other hand provided a different estimate, stating that he had
visitors from outside the Commission on the average of once a month, or
12 to 15 times per year.
Obviously there is a substantial difference between the estimates
provided by Brennan and Filler. Of the two witnesses, I found Brennan
less reliable generally and therefore I conclude that the frequency of
visitors was not quite as much as she indicated. Filler, who was only
asked one question on this subject, was probably being too conservative,
when his testimony is considered in the light of Brennan's. Therefore,
I conclude that the frequency of public access was somewhere in between
these two accounts. In sum, I find that ingress and egress by the
public to Filler's office was sufficiently frequent so that the hallway
through this work area may be referred to as a public hallway.
Certainly, whatever the actual frequency of visits, the number of
visitors was not insubstantial as Brennan's testimony indicates that 1
to 4 persons would visit Filler each time.
8. On April 5, 1983, Brennan affixed a large poster on the back of
the bookcase on her desk. The poster is 21 inches high and 16 inches
wide. Its color is white and the texture of the paper is glossy. Upon
the upper portion of the poster, the following phrase appeared: "WE'RE
FIGHTING BACK." The letters were 2 7/8 inches high and printed in block
capital letters 2 inches wide. They were colored navy blue. On the
lower portion appeared the following: "Join the National Treasury
Employees Union." These letters were 3/4 of an inch high and 1/2 inch
wide. They were colored bright red. In addition to the poster, there
were some other items on the back of the bookcases, such as cartoons,
comic strips and newspaper clippings which had been placed there by
Brennan or her co-workers. There is no evidence, however, that Union
posters had ever been posted there in the past or, for that matter,
anywhere except on bulletin boards. /7/
9. In the afternoon of April 7, 1983, Mr. Gibson approached Brennan
at her desk and asked her to remove the poster in question from the back
of the bookshelf. She asked why and was told that the poster appeared
to be soliciting membership and that this was not an appropriate place
for it to be posted because under Respondent's contract with the Union
there was a specific article addressing the policy on posting of Union
literature. Brennan then proceeded to explain to Gibson that other
items of a solicitous nature had been posted by employees throughout the
work area, such as car sales, van pools and raffles, and even if he
found her poster to be solicitous it was no different from these items
or the other items on the back of the bookshelf. By this time Gibson
appeared to be somewhat agitated, according to Brennan, and he tore down
the other items on the back of the bookshelf and threw them in a trash
can while Brennan simultaneously took the poster down. This
conversation lasted about five minutes.
10. Just prior to his conversation with Brennan on April 7th, Gibson
also requested another employee, Pam Brown, to remove the same poster
from a wall in her work area. However, he did not remain to see whether
she took it down. When he returned on August 11 and saw that it was
still posted, he asked her to take it down and she did. This incident
was not alleged in the complaint. Pam Brown was also a Union
Vice-President. Union President Phillip Kellett also displayed the same
poster on the door of his seventh floor office sometime in late March or
early April 1983. When the door was closed, the poster faced the
hallway. Kellett was not under Gibson's supervision and the evidence
does not establish that Gibson was aware of this poster. Kellett
testified, however, that other management officials including his
supervisor, the General Counsel and David Orr (Director of Personnel and
Labor Relations) came to his officials and "must" have seen it. The
poster remained on his door until he left the agency in December, 1983.
According to Kellett, another Union official, Steve Sanford, displayed
the poster in an area just outside of his office on the fourth floor.
Gibson was not aware of this. What we have here, then, is not evidence
of a past practice of condonation, but rather, inconsistent action by
supervisory officials concerning the same poster; i.e. the poster
involved herein.
11. The parties' collective bargaining agreement provides as
follows:
ARTICLE 9
UNION RIGHTS TO BULLETIN BOARD AND LITERATURE DISTRIBUTION
Section 1. The Employer shall make available to the Union
one-third of existing bulletin board space for its exclusive use,
limited to one such bulletin board per floor. The locked board,
currently existing on the fifth floor and used for the posting of
vacancy announcements, will continue to be used exclusively for
the purpose of the posting of such announcements, and will not be
available to the Union.
Section 2. The Union may distribute literature in work areas.
The Union representatives distributing such literature will,
however, do so only during their non-work time, and will not
interfere with Agency business. The Union is responsible to
assure that litter does not result from its distribution of such
literature. No notices may be affixed to painted surfaces.
Section 3. The Union shall not post nor permit to be posted
material which is libelous or slanderous towards any official of
the Federal Government.
12. Later on April 7, Gibson was confronted by Union President
Kellett who was defiantly wearing the NTEU poster on his chest and
contending that Brennan's bookcase was a "bulletin board." I agree with
Respondent that the bookcase was not a bulletin board. Even Brennan
conceded that if she were trying to sell a car or some other object, she
would post her announcement near the elevators, presumably referring to
the bulletin board. According to Gibson there is a bulletin board on
the third floor and this is where Union literature is to be posted.
13. The credited testimony of Filler discloses that Respondent would
not permit employees to post pornographic materials and, due to the
function of the FEC, items supporting political candidates. However,
Gibson conceded-- quite readily-- that Respondent does not have a policy
which prohibits employees from posting non-work related materials in
their work areas. The unrebutted testimony of Brennan indicates that
Respondent has over a period of time permitted employees to post such
things as movie posters, airline travel posters, clothing
advertisements, union buttons, cartoons, newspaper clippings and notices
of raffles, van pools and the selling of automobiles. According to
Brennan these items might be posted anywhere, including the partitions
used to separate work areas. Therefore, her bookcase was just one of
many places where such items might be observed. In my opinion, the NTEU
poster which is the subject of this case, was not located in Brennan's
work area. From where she sat, she could not see the poster because it
was on the opposite side of the bookcase facing the hallway. In fact,
her bookcase served the very same purpose as the partition which
separated work sites from the hallway. In my opinion, the poster was
located in a hallway used by employees and the public alike. Moreover,
since it was directly at the end of a 12 foot hallway it was
particularly visible to anyone coming down this hallway enroute to
Filler's office.
14. Union President Kellett testified that the National Headquarters
Office of the NTEU was undertaking "a legislative grass roots, sort of
lobbying program." Brennan testified that the "WE'RE FIGHTING BACK"
campaign had to do with government employees speaking out against
administrative policies including some key pieces of pending
legislation. Neither Gibson nor Filler had heard of the campaign.
Filler is a former steward and Union Vice-President. Except for the
altogether too brief testimony of Kellett and Brennan, there is really
no evidence as to what the campaign consisted of, where it was taking
place, or how long it lasted. In my opinion, the phrase "WE'RE FIGHTING
BACK" on the poster is not fully nor satisfactorily explained.
15. There is no evidence that Brennan, at the time this notice was
posted, was engaged in the solicitation of employees to become Union
members. The credited testimony of Gibson does reveal that previously,
in February, he found Brennan distributing union literature during
working hours in a work area. From this it does not follow, however,
that Brennan intended to personally engage in the solicitation of union
membership in April when the poster was placed on the bookcase. Nor is
there evidence that the poster, itself, resulted in any internal union
business being conducted while employees were in a duty status. U.S.
Customs Service, 13 FLRA No. 31, 13 FLRA 7. I must, therefore, reject
Respondent's contention that there was sufficient basis for Gibson to
conclude that the poster itself "would lead to on-the-clock
solicitation."
Discussion and Conclusions of Law
A threshold question is whether I should decline jurisdiction on the
ground that the Union should have filed a grievance because this matter
involves an arguable interpretation of the contract. Social Security
Administration, 15 FLRA No. 132, Harry S. Truman Memorial Veterans
Hospital, 11 FLRA No. 90; Food Safety and Quality Service, 7 FLRA No.
103, 7 FLRA 665; and Oklahoma City Air Logistics Center, Tinker Air
Force Base, 3 FLRA No. 82, 3 FLRA 512. From my reading of the cases it
would seem that where a case involves both a question of contract
interpretation and an allegation that a statutory right was violated,
the Union has the discretion under section 7116(d) of the Statute to
utilize either procedure. Federal Aviation Administration, 15 FLRA No.
135 (August 28, 1984). Since the General Counsel and Charging Party
view this case as one involving Brennan's protected right to display a
poster showing her support for the Union, I conclude that this case is
properly before me. Further, I note that the Charging Party, based upon
its assumption that Brennan (as an employee) had a statutory right to do
what she did, argues that the contract did not clearly and unmistakeably
waive such right.
In reaching the conclusions discussed more fully below, I find that
Brennan, whether acting as an individual employee or as a Union agent,
did not have a protected right to affix the poster on the back of her
bookcase. Therefore, there was no statutory right to be waived in the
contract. The Authority has held that neither a Union nor an employee
have a statutory right to the use of bulletin boards. Department of
Defense, Homestead Air Force Base, 13 FLRA No. 41, 13 FLRA 239. It
seems to me that if they do not have the statutory right to use bulletin
boards, they certainly do not have the unfettered right to post notices
or posters elsewhere on an agency's premises.
Before discussing the cases cited by the parties, some preliminary
findings and conclusions are warranted. The only Union poster which is
the subject of this proceeding is the one displayed by Union Vice
President Kathleen Kenney Brennan. Similar posters were displayed by
only three other persons, each of whom were a Union official.
Accordingly, I conclude that in affixing the poster to the back of the
bookcase Brennan was acting in her capacity as a Union official and
acting as its agent.
The poster itself contained two phrases (1) "WE'RE FIGHTING BACK."
and (2) "Joint the National Treasury Employees Union." I am not
satisfied, based upon the paucity of evidence in the record, that there
even was a "fighting back" campaign, or what it really amounted to or
consisted of. However, assuming the existence of such a campaign, the
placement of the language on the poster is, at best, ambiguous. It does
not clearly convey one message only; i.e. joint the Union in its
"Fighting Back" campaign. On the contrary, the poster language is just
as easily susceptible to an interpretation that the Union itself is
soliciting employees to join and become members of the NTEU. This
latter interpretation is especially supported by the fact that the Union
was conducting a membership drive at the same time. /8/ It also strains
credulity to hold that Brennan's poster was merely her personal
expression of support for the "campaign". As noted by Respondent in its
brief, it's a strange coincidence that the only employees who found it
necessary to express their personal feelings were those NTEU officials
who were responsible for the success of the simultaneous membership
drive. Moreover, one of Brennan's duties as Vice-President was the
recruitment of new members. I conclude that the preparation and
distribution of the posters was orchestrated by the Union as part of its
membership drive. Essentially, then, it is the Union's conduct which is
at issue.
The poster in question was not placed within the work area of
Brennan. It was not visible to her. Rather, it was located on the back
of her bookcase which, like the adjacent partitions, served as a wall
separating the corridor from the work areas. Therefore, the poster was
being displayed in a corridor which was used primarily by employees, but
also by members of the public who were enroute to Filler's office. Not
only was it located in the corridor but it was in a very prominent
position where it couldn't be missed, especially considering its large
size (21 inches X 16 inches). While it is true that the public's use of
the hallway may not have been on a daily basis, such use was on a fairly
regular basis with 1 to 4 people coming each time, as indicated by
Brennan's own testimony. In my view, it is these facts that constitute
the kind of "special circumstances" more fully discussed in the cases
cited to me by the parties.
As a starting point for their legal argument, both the General
Counsel and the Charging Party cite Republic Aviation, /9/ an NLRB
decision adopted by the Supreme Court. There, the NLRB upheld the right
of employees to wear union steward buttons, absent special circumstances
justifying a rule prohibiting such activity. Contrary to both the
General Counsel and the Charging Party, Republic Aviation did not
involve the display of union insignia. Rather, it has been in other
NLRB decisions (Union's brief, fn. 12) that wearing insignia has been
extended to displaying insignia. But even those cases are confined to
shirts, clothes, hats, coffee cups, tool boxes and lockers of the
employee. Secondly, the Authority has not specifically adopted Republic
Aviation, in toto. That case not only involved wearing buttons, but
also involved soliciting union membership and distributing union
literature. On these latter subjects, the Authority's views are
apparently being explicated on a case-by-case basis.
I do agree, however, that the Authority has held that "in the absence
of special circumstances, employees have a right under the Statute to
wear union insignia at the work place." United States Army Support
Command, Fort Shafter, Hawaii, 3 FLRA No. 121, 3 FLRA 796(1980).
Moreover, its holding in Fort Shafter was recently reaffirmed in Federal
Aviation Administration, Spokane Tower/Approach Control, 15 FLRA No.
135, a case involved the wearing of T-shirts containing certain types of
union emblems and insignia. In my opinion the foregoing cases involving
the wearing of union buttons or insignia are inapplicable to the present
case. Assuming, however, that the Republic Aviation and Fort Shafter
line of cases is applicable here, I would-- as noted above-- find
special circumstances existing which warranted Respondent's action in
removing the poster.
The General Counsel and the Charging Party seems to believe that the
Authority has extended its Fort Shafter holding concerning the wearing
of union insignia to the display of union insignia by its decision in
U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA
No. 3, 13 FLRA 7(1983). In that case an employee displayed a "small,
unobtrusive" sign on her desk stating "The Steward Is In." Although the
judge discussed at length Republic Aviation and its progeny and found
"no special circumstances warranting removal of the sign", the Authority
in its decision did not address the Respondent's contentions and the
Judge's analysis. Rather, it seems to me, the Authority seemed to treat
that as a "solicitation" case by stating that "the Authority
specifically notes the lack of evidence to sustain an allegation that
the sign, itself, resulted in any internal union business being
conducted while employees were in a duty status. See Section 7131(b) of
the Statute." In my opinion, Customs is distinguishable from the instant
case in the following respects: (1) the steward's sign was located on
her desk and clearly was confined to her work area; it wasn't located
out in the corridor or hallway used by the public; (2) the sign's
purpose was to identify the employee as a steward; the sign itself did
not appear to be intended to solicit union membership; (3) the sign was
small and unobtrusive; it was not like the large glossy poster in this
case; and (4) Respondent herein contends the existing contract
restricts the placement of such posters to bulletin boards.
Also cited by the General Counsel is the Authority's decision in
Social Security Administration, 13 FLRA No. 69, 13 FLRA 409(1983)
wherein the union was permitted to show a film strip with accompanying
sound track in a work area during non-work time as part of its
membership recruitment effort. In my view, this case comes closest to
supporting the General Counsel's position, because the poster is, in my
view, a tool for solicitation of membership. In other words, if a union
can show a film strip to a captive audience (employees eating lunch at
their desks), one might ask what's the harm of putting up a poster on
the agency's premises to accomplish the same objective. The answer, I
believe, is that the film strip showing was a single event of limited
duration during non-work time. The display of a membership recruiting
poster is a continuing act occurring during both work and non-work time,
not confined to the employees work area, and in a hallway to which the
public has access. Further, this case involves the use of government
facilities and a contract provision dealing specifically with the
matter.
There is no question, of course, that the solicitation of union
membership is a right protected by the Statute. However, the Authority
has noted in the SSA and Customs decisions that section 7131(b) of the
Statute specifically requires that "such solicitation . . . be performed
during the time the employee is in a nonduty status." Respondent argues
that "what we have here is a large, conspicuous poster, the primary
purpose of which is to serve as a tool to solicit new members." Given
the fact that Brennan's duties included recruitment, the fact that a
membership drive was in progress, and the location of this large, glossy
poster in a prominent location at the end of a hallway used by both
employees and the public, Respondent argues that it is more reasonable
to conclude that Brennan's display of the poster is not protected. I
agree.
In addition to the foregoing reason, I rely on the contractual
language of Article 9 Section 1 which requires the employer to "make
available to the Union one-third of existing bulletin board space for
its exclusive use." Gibson interpreted this as restricting the Union
from placing posters elsewhere. I find that Gibson's interpretation was
reasonable and, therefore, he acted reasonably in requiring Brennan to
remove the poster. To reach a different conclusion, I would have to
hold that the Union had unfettered authority to place posters anywhere
it chooses on the employer's premises unless specifically restricted by
the terms of the contract. I am not prepared to go that far, especially
in the absence of a past practice conclusively establishing that
Respondent permitted Union literature to be posted in places other than
on the specified bulletin board space. Accordingly, in the
circumstances of this case, Gibson's directive to remove the poster was
an exercise of Respondent's right to enforce the terms of the contract.
/10/ As noted previously, the Union could have filed a grievance, but it
elected to file an unfair labor practice charge instead and the
Authority has upheld its right to make such a choice. /11/
For the foregoing reasons, I find and conclude that the Federal
Election Commission has not violated section 7116(a)(1) of the Statute.
Therefore, I recommend that the Authority adopt the following:
ORDER
The Complaint in Case No. 3-CA-30508 be, and it hereby is, dismissed.
FRANCIS E. DOWD
Administrative Law Judge
Dated: September 24, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) provides:
Sec. 7116. Unfair Labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter(.)
/2/ See also U.S. Department of Justice, Federal Prison System,
Federal Correctional Institution, Milan, Michigan, 17 FLRA No.
138(1985), wherein the Authority found a violation of section 7116(a)(1)
of the Statute when the Activity removed, albeit inadvertently, union
material from a part of the bulletin board which the Union had
permission to use pursuant to the parties' negotiated agreement. In
this regard, the Authority adopted the Judge's conclusion that the
Activity's conduct in the circumstances of that case would reasonably
tend to interfere with and discourage the employees' protected right to
engage in activities on behalf of the Union.
/3/ In agreement with the Judge, we find the Authority's decision in
U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA
7(1983), inapplicable herein. Thus, in the Customs case, the Authority
adopted a Judge's finding that the Respondent violated section
7116(a)(1) of the Statute by requiring an employee to remove from her
desk a small sign stating "the Steward is in." The Judge in Customs
reached such conclusion by treating the case as analogous to an
employee's wearing union insignia. In adopting the Judge's finding in
Customs, the Authority noted further the absence of evidence that the
sign was an improper solicitation to conduct internal union business
while employees were in a duty status. As noted above, the instant case
is distinguishable from Customs as it involves an issue concerning the
right of an employee or a union to post union material in a public
passageway without permission of the Activity.
/4/ The evidence offered at the hearing shows that the poster was not
affixed to the desk itself but, rather, was affixed to the back of a
bookcase which was placed upon the employee's desk.
/5/ Ms. Brennan's full name appears as she identified herself for the
record. However, during the hearing and in two of the briefs she is
referred to as Ms. Kenney, her name at all times material herein.
/6/ I interpret this response as meaning two or three times per week,
but maybe some weeks no one. This interpretation is consistent with
Brennan's answer to the preceding questions.
/7/ I am inclined to find, as contended by Respondent, that the
evidence is insufficient to conclude that a past practice existed
whereby Respondent condoned the use of places other than bulletin boards
for the display of union posters soliciting union membership.
/8/ Where the legend on a poster is ambiguous and susceptible to more
than one interpretation, the person or organization that prepared the
poster can hardly complain when a fact-finder places more emphasis on
the objective evidence rather than the Union's self-serving
interpretation as to what message was intended to be conveyed by the
poster. At best, this was a poster with a dual purpose.
/9/ Republic Aviation Corp. v. NLRB, 324 U.S. 793, 16 LRRM 620(1945).
/10/ McGurran v. Veterans Administration, 665 F.2d 321(1981) where
the 10th Circuit Court of Appeals affirmed enforcement of a similar
contract provision and found no First Amendment violation by the
agency's decision to order removal of posters displayed on places other
than the union bulletin board.
/11/ Indeed, if the Union had filed a grievance there would be two
issues to resolve: (1) whether Article 9, Section 1 limited the Union
to bulletin board space only, and (2) whether the back of a bookcase
serving as a partition separating a work area from a corridor or hallway
is a "painted surface" within the meaning of Article 9, Section 2.