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43 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

8-CA-00110

DECISION AND ORDER

November 27, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to permit the Union to distribute a memorandum regarding a labor relations matter to employees in work areas during duty hours, although there was a practice of permitting employees to deliver other kinds of materials to each other's desks.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with this decision.

II. Background and Judge's Decision

The Union represents employees in the Respondent's Riverside District Office in Riverside, California. Keith Wooten, a bargaining unit employee, is the Union's representative in that office.

Wooten received an oral warning on June 22, 1989, for distributing documents concerning labor relations matters to the desks of employees during duty hours. He was told by David Bornstein, a management representative, that he had failed to abide by Article 12, Section 2 of the parties' national collective bargaining agreement. That section provides, in pertinent part:

A. Official publications of the Union may be distributed on SSA property by union representatives during the non-duty time of the union representatives who are distributing and the employees receiving the materials. . . .

Joint exhibit 1.

Wooten filed a grievance on July 14, 1989, over the oral warning (Grievance I). He sought the retraction of the reprimand. On that same date, he sent a memorandum, which constituted another grievance, to District Manager Lorraine Brannen concerning a separate matter involving an alleged failure by the Respondent to notify the Union in advance of employee rotations (Grievance II). At the same time, by a note attached to the memorandum, Wooten asked Brannen for an immediate ruling on the applicability of Article 12, Section 2, to the distribution of that memorandum:

Please let me know in writing by 2:40 pm today, as to whether you consider this memo to be an internal union publication. If you don't let me know exactly by 2:40 pm, then this will serve as proof that you don't consider this to be an internal publication, and thus I will pass it out on the floor.

Judge's Decision at 3.

Brannen responded that same day:

You are not authorized to distribute your union memoranda [sic] except as specified in Article 12 Section 2 of the National Agreement. You are not allowed to copy and distribute the subject memorandum on your duty time or that of the employees receiving the material. This section of the contract is quite clear.

Id.

A third grievance was filed on August 18, 1989, concerning the Respondent's answer to the Union's inquiry as to whether the July 14 memorandum was an "internal union publication" (Grievance III). Respondent's Exh. 5. Grievance III concerns the interpretation of Article 12, Section 2A of the negotiated agreement. The grievance requests that "[b]efore you prohibit me from passing out materials make sure that all such materials meet the criteria of Section 2A." Id. Further, the grievance states, "Article 12 of the contract was not meant to suppress legitimate communications of labor officials with employees. Section 2A of Article 12 was meant for things such as newsletters and recruitment." Id. Grievance III concludes: "In your decision show how you think that my July 14, 1989 memo and any other materials meet all aspects of Article 12 Section 2." Id.

The original charge in this case was filed on November 29, 1989. As amended, the charge alleged that the Respondent interfered with and coerced the Union by treating Wooten disparately, refusing to allow him to distribute Union materials to bargaining unit employees on duty time. As noted above, the complaint alleged that by its conduct the Respondent violated section 7116(a)(1) of the Statute.

The record indicates that employees distributed numerous non-work related items to unit employees' desks, during work time. The Respondent concedes that it had knowledge of this activity.

The Judge stated that the "gravamen of the General Counsel's case is that the Union should have been permitted to distribute materials to employees at their desks during duty hours, because there was a practice of permitting employees to drop other kinds of materials on each other's desks." Judge's Decision at 3. However, the Judge declined to reach the question of whether there was disparate treatment because "under Authority precedent the Union is precluded from pursuing this claim in an unfair labor practice proceeding." Id.

The Judge based his finding on his view that the dispute was essentially one over contract interpretation.

In that posture, he stated that "even an employer agency's denial of employees' statutory rights is a matter for grievance and arbitration procedures rather than unfair labor practice procedures, if that denial is based on a plausible interpretation of a collective bargaining agreement." Id. He cited 22nd Combat Support Group (SAC), March Air Force Base, California, 30 FLRA 331 (1987) (22nd Combat Support Group) and United States Marine Corps, Washington, D.C., 33 FLRA 105, 114 (1988) (Marine Corps I).^(*) Underlying this view of the case, according to the Judge, was a finding that "the attention of the parties was focused exclusively on the applicability and effect of Article 12, Section 2, of the contract. Judge's Decision at 4. The Judge concluded that it was the Union that had formulated the issue as being whether the contract prohibited it from distributing the memorandum during duty hours. According to the Judge, management responded that the contract prohibited the distribution, and neither party "evidenced an understanding that an issue of statutory rights was involved, much less that a statutory right to distribute during duty hours may have arisen because other distributions were permitted." Id.

Accordingly, the Judge recommended dismissing the complaint based on his conclusion that the Respondent's denial of the right to distribute the memorandum was grounded in a plausible interpretation of the parties' agreement.

III. Positions of the Parties

A. The General Counsel's Exceptions

The General Counsel argues that the Judge was incorrect to view the dispute as one that involved a matter of contract interpretation. The General Counsel frames the issue as one involving the denial of a statutory right, "which also happens to be addressed in the parties' collective bargaining agreement[.]" General Counsel's Brief at 8.

Viewed in the unfair labor practice context, the General Counsel argues that the facts show that the Respondent violated the Statute when it permitted employees to circulate non-work related materials during duty time by dropping materials at employees' desks but denied that right to the Union.

Finally, the General Counsel notes that if the complaint is not dismissed because it presents only a question of contract interpretation and the facts show disparate treatment, a determination must be made as to whether section 7116(d) of the Statute is a bar to the unfair labor practice proceeding, because the Respondent asserted that certain grievances were filed that barred the processing of the complaint. The General Counsel asserts that the grievances do not concern issues identical to those raised in the complaint and argues that, therefore, section 7116(d) is not a bar.

B. The Respondent's Opposition

In its opposition to the exceptions, the Respondent argues that the distribution of literature at issue in this case "is not a right flowing out of the Statute, as it involves the distribution of literature during duty hours in work areas." Respondent's opposition to the General Counsel's exceptions at 2. The Respondent concedes, however, that it was aware that non-work materials were distributed during work time. "In fact," the Respondent states, "the employees would come to management to get approval of the distribution." Id. at 3.

Among other things, the Respondent argues that the Judge correctly relied on Marine Corps I and 22nd Combat Support Group to recommend dismissal of the complaint because the Respondent's denial of the right to distribute was based on a plausible interpretation of the contract. The Respondent cites Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 1129, 1137 (1990) (Scott Air Force Base), for the holding that "[w]here a union's right of access to agency property is established through collective bargaining, . . . the remedy for a violation of that right in most instances is contractual, not statutory."

As to the section 7116(d) issue, the Respondent submits that there are three grievances that bar the unfair labor practice proceeding. According to the Respondent, the first two, Grievance I and Grievance II, involved the June 1989 incident that resulted in the oral warning to Wooten. The Respondent contends that the issues involved in the grievances are the same as those connected with the July 14 incident, which is the subject of the unfair labor practice allegation. In addition to Article 12, Section 2, Grievance I cited, as contractual bases for the grievance, Article 3, Sections 1 and 2, Article 30, Section 3, "and any other applicable sections of the national contract, existing MOUs, side agreements, government-wide rules, regulations, laws or case decisions." Respondent's opposition at 14-15. Article 3, Section 1, concerns employees' rights to join or assist the union; Article 30, Section 3, concerns allegations of abuse of official time. The Respondent argues that if these specific references do not cover the issues involved in the unfair labor practice case, "certainly, the reference to all other rules, regulations and laws does." Id. at 15-16. The Respondent contends that Grievance II makes the same arguments.

Grievance III, also asserted as a section 7116(d) bar to the unfair labor practice proceeding, is the grievance directly related to the July 14 incident, which is the subject of the complaint. According to the Respondent, "[t]he issue of the grievance is management not allowing Mr. Wooten to distribute his union publications on duty time, which is the issue of the unfair labor practice." Id. at 16. Accordingly, the Respondent asserts that the unfair labor practice proceeding is barred by section 7116(d) of the Statute.

IV. Analysis and Conclusions

A. Section 7116(d) Does Not Preclude Consideration of the Complaint

The threshold question in this case is whether the complaint is barred by the second sentence of section 7116(d), which provides in pertinent part: ". . . issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice . . . but not under both procedures." The Judge dismissed the complaint on other grounds, and did not address this issue in his decision.

We have developed a test for determining whether issues raised in a grievance proceeding are the same as the issues that are raised in an unfair labor practice proceeding, relying on the decision of the United States Court of Appeals for the District of Columbia Circuit in Overseas Education Association v. FLRA, 824 F.2d 61, 72 (D.C. Cir. 1987). That test is set out in U.S. Department of Defense, Marine Corps Logistics Base, Albany, Georgia, 37 FLRA 1268, 1272 (1990).

For a grievance to be precluded under section 7116(d) by an earlier-filed unfair labor practice charge: (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the unfair labor practice; (2) such issue must have been earlier raised under the unfair labor practice procedures; and (3) the selection of the unfair labor practice procedures must have been in the discretion of the aggrieved party.

Only the first of the three elements is at issue in this case. With regard to the determination of whether the unfair labor practice charge and the grievance involve the same issue,

the Authority will look at whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the theories advanced in support of the ULP charge and the grievance are substantially similar. (Citations omitted).

Id.

The Respondent asserts that three separate grievances involve the same issue that is raised as an unfair labor practice in this case, and points out that all were filed before the date of the filing of the unfair labor practice charge.

Two of the grievances were filed July 14, 1989. Grievance I concerned the reprimand given to Wooten on June 22, 1989, for distributing Union publications to employees' workplaces on June 19, 20 and 21, while he was on official time, assertedly in violation of Article 12, Section 2 of the negotiated agreement. The grievance sought retraction of the reprimand "as to [Wooten's] alleged violation of Article 12, Sec. 2 of the National Contract." Respondent's Exh. 2. The basis for the grievance was that management had circumvented the negotiated agreement "by personally charging the Union Representative for conduct that could only be chargeable against the Union since Art. 12 National Contract only applies to Union-Management disagreement." Respondent's Exh. 3.

Grievance II concerned the Respondent's alleged failure to notify the Union in advance of employee rotations, specifically referring to "Article 24 and any other available articles of the National Agreement." Respondent's Exh. 4. The request to distribute that grievance to the employees, which led to the unfair labor practice complaint in this proceeding, was attached to the grievance on a separate sheet.

Grievance III was filed on August 18, 1989. Grievance III concerned the Respondent's answer to the Union's inquiry as to whether the July 14 memorandum was an "internal union publication" that could not be distributed at the workplace on duty time under Article 12, Section 2A of the negotiated agreement. Respondent's Exh. 5. Thus, the dispute in Grievance III related only to the interpretation of a specific term of Article 12, Section 2A.

The facts underlying the unfair labor practice allegation also concern the Respondent's refusal to permit the Union on July 14 to distribute the memorandum. However, the theory of the alleged unfair labor practice is that the refusal to permit distribution of the July 14 memorandum violated section 7116(a)(1) of the Statute because the Union was prohibited from making a distribution during work time to duty stations, while numerous other non-union distributions had been permitted under similar circumstances. In other words, the General Counsel maintains that the Respondent violated the Statute because it treated the Union disparately.

The grievances, on the other hand, involved specifically only the meaning of various articles of the negotiated agreement and, to some extent, earlier incidents. Grievance I involved whether the Agency could give an oral warning to Wooten, in his capacity as an employee, for distributing documents allegedly in violation of Article 12, Section 2A. Grievance II concerned alleged violations of the negotiated agreement regarding the Respondent's alleged failure to notify the Union in advance of employee rotations. We conclude that the factual bases of Grievance I and Grievance II do not involve the same subject matter as that of the alleged unfair labor practice. Therefore, the issues are different for the purposes of section 7116(d).

Finally, Grievance III questioned whether the material the Union sought to distribute was an "official publication" of the Union within the meaning of Article 12, Section 2A. Grievance III sought to require that before the Union would be prohibited from making distributions in the future, the Respondent should "make sure that all such materials meet the criteria of section 2 A." Respondent's Exh. 5. We conclude that although Grievance III and the unfair labor practice allegation both arose from the Respondent's conduct in prohibiting distribution of the July 14 memorandum, the issues involved are completely different. The theory of Grievance III was that the Respondent should not have prohibited the Union's distribution because the Respondent did not first show that the material was an "official publication" within the meaning of the contract, whereas the theory of the unfair labor practice charge was that the Respondent should not have prohibited the Union's distribution because doing so constituted disparate treatment in violation of section 7116(a)(1) of the Statute. Put simply, the grievance sought to establish a solely contractual right to distribute the material, based upon a specific provision of the collective bargaining agreement, while this proceeding seeks to establish a statutory basis for that right, based on discriminatory treatment of the Union.

Therefore, we conclude that this unfair labor practice proceeding is not barred by section 7116(d) of the Statute. See U.S. Department of the Army, United States Marine Corps Logistics Base, Albany, Georgia, 37 FLRA at 1271. Accordingly, we shall proceed to consider the merits of the unfair labor practice complaint.

B. The Respondent Violated Section 7116(a)(1) of the Statute

Subsequent to the Judge's decision in this case, the Authority issued its decision in Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (IRS), petition for review filed sub nom. Internal Revenue Service v. FLRA, No. 91-1247 (D.C. Cir. May 24, 1991), which rejected the theory that complaints should be dismissed when, in response to alleged violations of a statutory right, the parties raise "differing and arguable," or "plausible" interpretations of the collective bargaining agreement. We noted that a "differing and arguable" analysis would permit a respondent to violate protected rights based solely on an arguable or plausible interpretation of an agreement without any necessity of proving that its interpretation is correct. We concluded that use of a "differing and arguable" analysis in such cases was inconsistent with the purposes and policies of the Statute and stated that, to the extent that previous Authority decisions applied such an analysis, those decisions would no longer be followed.

We reaffirmed in IRS that "[t]he established approach . . . to resolve defenses based on a collective bargaining agreement to alleged interference with statutory rights is to determine whether the charging party has clearly and unmistakably waived its statutory right." Id. at 1574. Based on IRS, we issued our decision on reconsideration of Marine Corps I, relied on by the Judge in this case. In Marine Corps II, we restated the approach taken in IRS, and cited other cases based on IRS. See, for example, Marine Corps Logistics Base, Barstow, California, 39 FLRA 1126 (1991), petition for review filed sub nom. Marine Corps Logistics Base, Barstow, California v. FLRA, No. 91-1212 (D.C. Cir. May 9, 1991) (union did not clearly and unmistakably waive its right to bargain over the impact and implementation of changes in the agency's performance appraisal system); Department of the Army, U.S. Army Finance and Accounting Center, Indianapolis, Indiana, 39 FLRA 1586 (1991) (Authority agreed with judge's conclusion that, pursuant to collective bargaining agreement and subsequent settlement agreement, the union clearly and unmistakably waived its right to determine the number of union representatives for bargaining). Compare Naval Aviation Depot, Norfolk, Virginia, 39 FLRA 1597 (1991) (as matter over which the union sought to bargain was covered by a provision in the parties' contract and as there was no allegation that the agreed-upon procedures were not followed, agency did not violate the Statute by refusing to bargain over the union proposals concerning the matter).

As noted, we have rejected the approach of the line of cases prior to IRS that analyzed cases such as this essentially as disputes over contract interpretation. Therefore, we must determine whether the Respondent denied the Union a statutory right, and, if so, whether the Union clearly and unmistakably waived that right. For the reasons set forth below, we find that the Union had a statutory right to distribute materials at the workplace on work time because this right had been established by the Respondent's practice of allowing non-union distributions in such circumstances. We also find that the Union did not clearly and unmistakably waive its right. Therefore we conclude that the Respondent treated the Union disparately in violation of section 7116(a)(1) of the Statute, when it denied the Union the right to distribute the July 14 memorandum.

There is a statutory right, protected under section 7102 of the Statute, to publicize matters affecting unit employees' terms and conditions of employment. Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044, 1048 (1987). However, that right is not unfettered. Id. Thus, there is no statutory right to distribute union materials at the workplace during work time; the statutory protection for distribution is limited to non-work time in non-work areas. See General Services Administration, 27 FLRA 643, 645 (1987). Nevertheless, such a right may be established by contract or practice and a unilateral removal of a right established by practice will violate section 7116(a)(1). Cf. Scott Air Force Base, 34 FLRA at 1136 (although union does not have statutory right to advertise in agency-controlled newspaper, it may establish a right to advertise in such a newspaper or a right of access to other agency property by contract or past practice, and a unilateral change in past practice will violate section 7116(a)(1)).

Where the statutory right to distribute materials at the workplace has been expanded by past practice, an employer would reasonably tend to discourage union activity in violation of section 7116(a)(1) of the Statute if the employer denies the union the right to distribute its materials, while allowing others the right to distribute non-union materials. Thus, the Authority has long held that where an agency grants employees a privileged means of communication for personal items and messages that are not related to their work, it cannot prohibit the union from using that means for disseminating messages and notices related to union activity. See Department of Defense Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy), 21 FLRA 849, 850 (1986) (activity violated Statute by prohibiting posting of union literature, in view of past practice allowing employees to post notices of all kinds); see also Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, 11 FLRA 77, 83 (1983) (agency unlawfully removed union messages from employees' bulletin board, which was commonly used for personal notices).

Accordingly, employees have the right to have their exclusive representative treated without discrimination regarding such matters as the distribution of materials. Thus, although there is no statutory right to distribute union materials at the workplace during work time, if individual employees are allowed to make such distributions of non-work materials, an exclusive representative would have a similar right, unless it has waived that right.

In this case, the record indicates that employees distributed numerous non-work related items to unit employees' desks, during work time, and that the Respondent admittedly had knowledge of this activity. As the Union would be entitled under the Statute to similar treatment, the Respondent violated section 7116(a)(1) of the Statute by treating the Union disparately, unless the Union waived its right.

We conclude that the Union did not waive its right to be treated equally regarding distribution of materials on duty time by agreeing to Article 12, Section 2A of the negotiated agreement. That provision bestows on the Union the right to distribute official publications in work areas, a right that it would not have had in the absence of an established practice to the contrary. The provision says nothing, however, that would limit the Union's existing statutory right to be treated equally regarding distributions. As there is no express language in the agreement or demonstration in the bargaining history that the provision granting a contractual right was intended to limit other statutory rights, we view Article 12, Section 2A as merely a grant of permission to the Union to exercise broader distribution rights than those granted by the Statute and not a limitation on any other statutory rights the Union might have. Stated otherwise, there is no indication that the intent of the parties in agreeing to a contractual right was to preclude the Union from exercising its statutory rights. Therefore, we conclude that Article 12, Section 2A is not a waiver of the Union's right to be treated equally regarding the distribution of materials at the workplace on duty time.

Accordingly, as we have concluded that there was not a clear and unmistakable waiver of the Union's right to be free of disparate treatment in distributing materials that relate to its representative function, we conclude that the Respondent has violated section 7116(a)(1) of the Statute by refusing to allow the Union to distribute the grievance to employees' desks on July 14, 1989.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, shall:

1. Cease and desist from:

(a) Interfering with the rights of its employees in its Riverside, California, District Office guaranteed by section 7102 of the Statute, by refusing to permit American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, to distribute materials that relate to the Union's function as exclusive representative but which are not official publications of the Union, on the same basis that it allows non-union related materials to be distributed.

(b) In any like or related manner, interfering with, restraining, or coercing any of its employees in its Riverside, California, District Office in the exercise of 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) Rescind and revoke the memorandum of July 14, 1989, prohibiting the circulation of the Union's grievance of the same date.

(b) Post at its Riverside, California District Office copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Manager of the Riverside, California District Office and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with the rights of our employees in our Riverside, California, District Office by refusing to permit American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, to distribute materials that relate to the Union's function as exclusive representative but which are not official publications of the Union, on the same basis that we allow non-union related materials to be distributed.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce any of our employees in our Riverside, California, District Office in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL rescind and revoke the memorandum of July 14, 1989, prohibiting the circulation of the Union's grievance of the same date.

________________________
(Activity)

Dated________ By:________________________

(Signature) (Title)

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 questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Authority subsequently issued its decision on reconsideration of Marine Corps I in 42 FLRA 3 (1991) (Marine Corps II) (Member Armendariz dissenting), petition for review filed sub nom. United States Marine Corps, Washington, D.C., et. al. v. FLRA, No. 91-1527 (D.C. Cir. Nov. 1, 1991).

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