[ v13 p239 ]
13:0239(41)CA
The decision of the Authority follows:
13 FLRA No. 41
DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE AIR FORCE,
31st COMBAT SUPPORT GROUP,
HOMESTEAD AIR FORCE BASE
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1167
Charging Party
Case No. 4-CA-1030
DECISION AND ORDER
The Chief 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 in its entirety.
Thereafter, the Charging Party filed exceptions to the Chief Judge's
Decision and the Respondent filed an opposition to the Charging Party's
exceptions and an accompanying brief.
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
Chief Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Chief Judge's Decision and the entire record, the Authority hereby
adopts the Chief Judge's findings, conclusions, and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-1030 be, and it
hereby is, dismissed.
Issued, Washington, D.C., September 30, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CA-1030
Barbara S. Liggett, Esq.
For the General Counsel
James A. Harper, Esq.
For the Respondent
Arthur Schaffer
For the Charging Party
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute (5 U.S.C. 7101 et seq.) and the Final Rules and
Regulations issued thereunder (5 C.F.R. 2423.14 et seq.). It is based
on a Complaint issued by the Regional Director of Region IV, Federal
Labor Relations Authority, alleging that Respondent violated Section
7116(a)(1) on October 13, 1980 and March 5, 1981, when it "reenacted and
reaffirmed" a policy which prohibited the posting of Union literature
during all paid time, including coffee and lunch breaks.
A formal hearing was held in Miami, Florida on May 4, 1982. All
parties were afforded full opportunity to examine witnesses, introduce
evidence and file briefs. Upon the entire record, including 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. Respondent and Local No. 1167 has been parties to successive
collective bargaining contracts since 1976. The contract in existence
at relevant times provided that:
(I)nternal union business such as soliciting membership,
collecting dues, electing officers, meeting and posting and
distributing literature will be conducted during non-duty hours of
the employees involved. However, normal person-to-person
conversation at the work site regarding labor organizations is
permitted providing there is not interference with production of
work. (Art. 5.2(a))
Space on Employer bulletin boards shall be available for use by
NFFE 1167. . . . (T)he work section shop steward will be
responsible for up-keep of the union portion of the bulletin
board. . . . Personnel found tampering or removing materials from
NFFE bulletin boards may be subject to disciplinary action. (Art.
14.2))
2. There is no convincing evidence of discussions, during the
negotiation of either contract, concerning the meaning of "non-duty
hours," i.e., whether it included all time for which an employee is
paid, or excluded "coffee breaks" and paid lunch periods when work was
not expected of an employee. While Union President Schaffer said that
discussions took place indicating that duty hours meant when an employee
is expected to work, the management negotiator recalled no such
discussion and the Chief Steward understood it to include coffee breaks
and paid luncheon periods. The lack of a definition was not remedied in
the contract executed in February of 1982, after the events at issue
here, nor was any effort made to clarify the matter, although the
provision was otherwise modified.
3. In April 1980, the Activity was finally provoked to clarify its
policy. A Union officer, apparently during a coffee break, posted an
item about a perceived threat that work would be contracted out. It was
removed by two master sergeants offended by its content, and a meeting
took place between Union and management officials. As a result,
Respondent's Civilian Personnel Officer issued to his managers and
supervisors a memorandum respecting the "posting of official Union
literature on Base Bulletin Boards by Local 1167 (NFFE)". It said that:
Posting and removal of literature will be done by
representatives of Local 1167 during their non pay status (before
and after work hours and during authorized meal breaks for which
pay is not received).
4. When President Schaffer could not persuade the Civilian Personnel
Officer to remove this restriction on access to the bulletin boards, he
wrote the Base Commander requesting that the memorandum be amended to
explicitly permit Union representatives to post or remove materials
during lunch and rest periods. On May 28, 1980, the Commander replied,
quoting Section 7131(b) of the Statute, /1/ and stating that:
Posting and removal of literature from Union bulletin boards is
internal Union business and, as such, is not authorized during
duty time. Employees are compensated for break periods and 20
minutes on-the-clock lunch periods consequently, these periods
have been determined to be duty time.
5. Schaffer made another effort to secure a change in bulletin board
policy in September. On October 18, 1980, Colonel Scarpino, the new
Base Commander wrote him, concurring in his predecessor's determination
that both breaks and paid lunch periods were duty time, and thus not
available for posting or removing bulletin board materials.
6. Schaffer again asked that the matter be reconsidered and the
April 1980 policy letter rescinded. On March 5, 1981, Colonel Scarpino
responded, reaffirming his conviction that "maintaining Union bulletin
boards is . . . internal union business and therefore is not authorized
during duty time." On June 29, Schaffer filed an unfair labor practice
charge.
Discussion and Conclusions
General Counsel contends that this case is governed by Oklahoma City
Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma (6 FLRA
159), where the Authority found violative of Section 7116(a)(1) a rule
prohibiting solicitation of membership during all paid breaks, on the
ground that "paid free time" falls within the meaning of the term
"nonduty status" as used in Section 7131(b), and hence may be used for
solicitation purposes. From this holding, the General Counsel reasons
that "(r)ules barring union activity by employees during their non-work
time, including breaks and meal periods, have been determined to
constitute violations of Section 7116(a)(1)." Respondent asserts that
the rule first enunciated in April, 1980, did not constitute a
unilateral change, and is, in any event, beyond attack under the
six-months limitation of Section 7118(a)(4), and that the limitation on
access to bulletin boards was negotiated, so as to render this dispute
one of contract interpretation which should be resolved under the
negotiated grievance procedure rather than in this forum.
It should first be observed that this is not a case involving a rule
restricting the rights of employees to engage in union activity, whether
for or against the incumbent union. The relevant contract provisions
have to do with the conduct of internal union business, and the use, by
Local 1167, of the Activity's bulletin boards. Looking to the private
sector for guidance, it is to be noted that, while unions cannot bargain
away the statutory rights of employees to engage in solicitation or to
distribute literature, whether for or against an incumbent, /2/ neither
unions /3/ nor employees /4/ have a statutory right to bulletin boards.
In the absence of a showing that an employer has discriminatorily denied
the use of a bulletin board to a union or employees attempting to
disseminate their views about a union, access to a bulletin board, and
limitations on its use, are governed by an employer's rules or by a
collective bargaining agreement. In the absence of any evidence, here,
as to the practice concerning the posting of other matters on the
Activity's bulletin boards, we are not presented with a case where the
Union was denied access which was available to others.
The collective bargaining agreements contain no definition of
"nonduty hours", and there is no persuasive evidence that any definition
was agreed upon during negotiations. Even though the Base Commander's
letter of May 28, 1980 suggests that he drew upon Section 7131(b) in
justifying his prohibition of posting or removal of bulletin board
materials during all time for which compensation is received, it does
not follow that his rule (or interpretation of the contract) was
rendered invalid by the Authority's quite different construction of
Section 7131(b) in Tinker. As noted, Tinker declared invalid a rule
prohibiting the employees' exercise of statutory rights during their
paid free time, holding such time falls within the meaning of the term
"nonduty status" and is therefore not affected by the Statute's
constraints on the conduct of a union's internal business when an
employee is in duty status. We are not confronted here with
restrictions upon statutory rights, but rather, a limited, contractual,
right to bulletin boards. Whatever the parties meant in their
agreement, we are at most faced with a dispute over the interpretation
of a contract, or with promulgation of a rule which arguably violates
the contract. The meaning of that contract is not affected by the
Authority's holding in Tinker, for the Authority is powerless to alter
the agreement reached, except where it encroaches upon statutory rights
which a collective bargain representative may not waive. /5/
Thus, in my view, the General Counsel erroneously equates "the right"
to use an Activity's bulletin boards with the right of employees
otherwise to disseminate their views regarding the exercise of rights
protected by Section 7102 on the Activity's premises and during times
when they are being paid but not required to work. They are not
equitable, /6/ and Respondent does not violate the law by treating them
differently. /7/
Having concluded that it is not unlawful for Respondent to so limit
the posting or removal of Union materials on its bulletin boards, but
that their conduct is at most an arguable breach of contract for which
contractual grievance machinery exists, I recommend that the Authority
dismiss this complaint in its entirety. /8/
JOHN H. FENTON
Chief Administrative Law Judge
Dated: November 19, 1982
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ Which states that " . . . activities . . . relating to the
internal business of a labor organization . . . shall be performed
during the time the employee is in a nonduty status."
/2/ NLRB v. Magnavox Company of Tennessee, 415 US 322, 85 LRRM 2475.
/3/ Container Corporation of America, 244 NLRB 318, enf. 649 F.2d
1213 (CCA6); Davis Company v. Furniture Workers, 109 LRRM 3192.
/4/ Group One Broadcasting Co., West, 222 NLRB 993; Challenge-Cook
Brothers of Ohio, Inc., 153 NLRB 92, 99, 374 F.2d 149, 152-154 (CCA6).
/5/ See NLRB v. Magnavox Company of Tennessee, supra, fn. 2.
/6/ General Motors Corp., 212 NLRB 133, 135.
/7/ While beyond the scope of this decision, it is to be noted that
Respondent's interpretation of "non-duty hours", as used in its contract
with Local 1167, would appear to apply to solicitation and distribution
as well as posting, as all such subjects are dealt with in the same
paragraph. If so, such restrictions would appear to be unlawful. This
case is, however, confined to the question whether Respondent could
lawfully prohibit access to bulletin boards during paid time.
/8/ I of course need not reach Respondent's defenses grounded on the
six-months limitation of Section 7118(a)(4) and the claim that the rule
promulgated in April of 1980 was not a unilateral change but a
codification of existing policy which was thereafter reaffirmed. Having
been required to give some thought to such matters, I think it useful to
note that the rule promulgated was not alleged to constitute a
unilateral change, but simply an unlawful interference with the rights
of employees to communicate about Union matters. If such a rule is
maintained and enforced into the period within six months of the filing
of the unfair labor practice charge, Section 7118(a)(4) provides no
defense because the rule's existence constitutes a continuing violation,
even though no violation may be found based on its original promulgation
more than six months before the charge was filed. Cone Mills Corp.,
White Oak Plant, 174 NLRB 1015, 1021. Here the charge was filed on June
29, 1981, and could not embrace promulgation of the rule in October of
1980, as the Complaint seems to allege.