[ v07 p596 ]
07:0596(92)CA
The decision of the Authority follows:
7 FLRA No. 92
INTERNAL REVENUE SERVICE
NORTH ATLANTIC SERVICE CENTER
(Andover, Massachusetts)
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION,
LOCAL 69
Charging Party
Case No. 1-CA-269
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 AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED JUDGE'S RECOMMENDED
DECISION AND ORDER. THE JUDGE ALSO FOUND THAT THE RESPONDENT HAD NOT
ENGAGED IN OTHER UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
ORDERED THAT THOSE ALLEGATIONS BE DISMISSED. THE CHARGING PARTY AND THE
RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE JUDGE'S RECOMMENDED
DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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 RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
SUBJECT CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS AS INDICATED BELOW. /1/
THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT THE DISTRIBUTION OF
UNION LITERATURE BY EMPLOYEES IN THE EMPLOYEE CAFETERIA DURING NON-WORK
TIME IS A PROTECTED ACTIVITY UNDER THE STATUTE. SECTION 7102 OF THE
STATUTE PROVIDES IN PERTINENT PART:
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT.
THE RIGHT TO "JOIN, OR ASSIST ANY LABOR ORGANIZATION" ENCOMPASSES THE
DISTRIBUTION OF UNION LITERATURE IN NON-WORK AREAS, DURING NON-WORK
TIME. CF. OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC) TINKER AIR FORCE
BASE, OKLAHOMA, 6 FLRA NO. 32 (1981), INVOLVING SOLICITATION DURING
NON-WORK TIMES. THE ENFORCEMENT OF NO-DISTRIBUTION RULES AGAINST
EMPLOYEES DISTRIBUTING UNION LITERATURE IN NON-WORK AREA DURING NON-WORK
TIME VIOLATES SECTION 7116(A)(1) OF THE STATUTE, WHICH MAKES IT AN
UNFAIR LABOR PRACTICE FOR ANY AGENCY "TO INTERFERE WITH, RESTRAIN, OR
COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT" UNDER
THIS CHAPTER. ACCORDINGLY, THE RESPONDENT'S REMOVAL OF SUCH LITERATURE
FROM THE CAFETERIA VIOLATED SECTION 7116(A)(1) OF THE STATUTE.
THE AUTHORITY ALSO ADOPTS THE JUDGE'S FINDING THAT THE ACTIONS OF A
SUPERVISOR IN REQUESTING HER EMPLOYEES TO READ PART OF THE LITERATURE
DID NOT, UNDER ALL OF THE CIRCUMSTANCES, CONSTITUTE A VIOLATION OF
SECTION 7116(A)(1) OF THE STATUTE. AS FOUND BY THE JUDGE, THE REQUEST
WAS CASUALLY MADE WITHOUT ANY ENFORCEMENT OR POLICING BY THE SUPERVISOR.
ADDITIONALLY, THE AUTHORITY ADOPTS THE JUDGE'S DISMISSAL, IN EFFECT, OF
THAT PART OF THE COMPLAINT ALLEGING THAT THE SUPERVISOR ATTRIBUTED
RESPONSIBILITY FOR THE UNION LITERATURE TO A PARTICULAR EMPLOYEE.
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 INTERNAL REVENUE SERVICE, NORTH
ATLANTIC SERVICE CENTER, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 7102 OF THE STATUTE, BY
REMOVING UNION LITERATURE PLACED IN THE CAFETERIA OR OTHER NON-WORK
AREAS BY ITS EMPLOYEES DURING NON-WORKING TIME.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
SECTION 7102 OF THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) POST AT THE NORTH ATLANTIC SERVICE CENTER, ANDOVER,
MASSACHUSETTS, AND THE WILMINGTON ANNEX TO THE SERVICE CENTER, COPIES OF
THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE NORTH
ATLANTIC SERVICE CENTER, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE SECTION 7116(A)(1) ALLEGATIONS OF THE
COMPLAINT PREDICATED ON THE ACTIONS OF THE SUPERVISOR, WHICH HAVE BEEN
FOUND SUPRA NOT TO BE VIOLATIVE OF THE STATUTE, BE, AND HEREBY ARE,
DISMISSED.
ISSUED, WASHINGTON, D.C., JANUARY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 7102 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BY REMOVING UNION LITERATURE
PLACED IN THE CAFETERIA OR OTHER NON-WORK AREA BY OUR EMPLOYEES DURING
NON-WORKING TIME.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
7102 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 411
STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS 02116, AND WHOSE
TELEPHONE NUMBER IS: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ELLIOT CARLIN, ESQUIRE
FOR THE RESPONDENT
RICHARD ZAIGER, ESQUIRE
CAROL WALLER POPE, ESQUIRE
FOR THE GENERAL COUNSEL
BARBARA J. COLLINS, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
CASE NO.: 1-CA-269
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
SEQ.
PURSUANT TO A CHARGE FILED ON FEBRUARY 15, 1980, BY THE NATIONAL
TREASURY EMPLOYEES UNION AND NTEU LOCAL 69, (HEREINAFTER CALLED THE NTEU
OR UNION, A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON APRIL 30,
1980,BY THE REGIONAL DIRECTOR FOR REGION I, FEDERAL LABOR RELATIONS
AUTHORITY, BOSTON, MASSACHUSETTS. THE COMPLAINT ALLEGES THAT THE
INTERNAL REVENUE SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER,
MASSACHUSETTS, (HEREINAFTER CALLED THE RESPONDENT OR IRS) VIOLATED
SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
CONFISCATING UNION LITERATURE FROM THE EMPLOYEE CAFETERIA AND
SUBSEQUENTLY, DURING AN INFORMAL MEETING, REQUIRING A NUMBER OF
EMPLOYEES TO READ THE UNION LITERATURE AND, IN RESPONSE TO AN INQUIRY,
ATTRIBUTING RESPONSIBILITY FOR THE UNION LITERATURE TO A PARTICULAR
EMPLOYEE.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 26, 1980, IN
BOSTON, MASSACHUSETTS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES HEREIN. ALL PARTIES SUBMITTED BRIEFS BY OCTOBER
20, 1980, WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
IN 1979, THE NTEU WAS CONDUCTING AN ORGANIZING CAMPAIGN AT
RESPONDENT'S NORTH ATLANTIC SERVICE CENTER LOCATED IN ANDOVER,
MASSACHUSETTS, AND THE WILMINGTON, MASSACHUSETTS ANNEX TO THE NORTH
ATLANTIC SERVICE CENTER LOCATED SOME SEVEN MILES AWAY FROM THE SERVICE
CENTER. AT THE TIME OF THE ORGANIZING CAMPAIGN, THE EMPLOYEES WORKING
IN THE SERVICE CENTER AND THE ANNEX WERE REPRESENTED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES. THE NTEU WAS SUCCESSFUL IN ITS
ORGANIZING CAMPAIGN AND RECEIVED CERTIFICATION FROM THE FLRA ON AUGUST
12, 1980.
THE EVENTS UNDERLYING THE INSTANT COMPLAINT OCCURRED AT THE
WILMINGTON, MASSACHUSETTS ANNEX. MR. ARTHUR KALIVAS, CHIEF OF THE
RETURNS SECTION AT THE ANNEX, IS IN CHARGE OF THE ANNEX WHICH HOUSES SIX
OTHER SUPERVISORS AND BETWEEN 115 AND 130 EMPLOYEES.
BETWEEN 9:00 A.M. AND 9:45 A.M. THE EMPLOYEES WERE ALLOWED TO TAKE
ONE OF THREE SCHEDULED 15 MINUTE WORK BREAKS. /2/ LUNCH HOUR BREAKS
WERE SCHEDULED AT HALF-HOUR INTERVALS STARTING AT 11:30 AND ENDING AT
1:00 P.M. THERE WAS ONE AFTERNOON BREAK FROM 2:00 P.M. TO 2:15 P.M.
THE RECORD INDICATES THAT MANY OF THE EMPLOYEES TOOK THEIR BREAKS IN THE
CAFETERIA LOCATED ON THE FIRST LEVEL OF THE ANNEX.
ON DECEMBER 11, 1979, AT APPROXIMATELY 9:15 A.M. MS. MARGARET SNOW,
WHO WAS THEN ON A 9:15 - 9:30 A.M. BREAK, PLACED APPROXIMATELY FIFTY
COPIES OF EACH OF TWO LEAFLETS ON A CAFETERIA TABLE LOCATED NEXT TO THE
ENTRANCE TO THE CAFETERIA. /3/ ONE LEAFLET WAS ENTITLED "AFGE CONTINUES
TO HOLD UP THE ANDOVER SERVICE CENTER ELECTION," AND THE SECOND LEAFLET
WAS ENTITLED "SUPERVISOR OF THE MONTH." THE LATTER DOCUMENT MADE
REFERENCE TO MS. FRANCIS VERVILLE, SUPERVISOR OF THE DOCUMENT RETENTION
UNIT AS "THIS SEASON'S HOLIDAY TURKEY" AND CRITICIZED HER BEHAVIOR.
(THE LEAFLET IS ATTACHED HERETO AS ATTACHMENT A). MS. SNOW HAD OBTAINED
THE LEAFLETS FROM MS. DOROTHY CORMIER, A QUALITY REVIEWER AT THE ANNEX.
SHORTLY AFTER 9:15 A.M., MS. EUNICE MARTINO, A BARGAINING UNIT
EMPLOYEE FROM MS. VERVILLE'S UNIT, ENTERED THE CAFETERIA AND JOINED MS.
SNOW AND MR. FRANK KEMPTON AT A TABLE LOCATED SOME THREE TO FOUR TABLES
AWAY FROM THE DOORWAY TO THE CAFETERIA. MS. MARTINO READ THE UNION
LEAFLET WHICH MADE A REFERENCE TO MS. VERVILLE AND EXPRESSED
DISAPPROVAL. MS. MARTINO LEFT THE CAFETERIA AND RETURNED TO HER UNIT AT
ABOUT 9:25 A.M. /4/
SHORTLY AFTER MS. MARTINO'S DEPARTURE, MR. KALIVAS, WHO HAD BEEN
INFORMED BY ONE OF HIS SUPERVISORS OF THE UNION LITERATURE DISPARAGING
MS. VERVILLE, ENTERED THE CAFETERIA AND WENT DIRECTLY TO THE CAFETERIA
TABLE WHERE THE LITERATURE HAD BEEN PLACED. MR. KALIVAS QUICKLY SCANNED
THE LITERATURE AND THEM REMOVED ALL THE REMAINING COPIES OF THE UNION
LITERATURE FROM THE TABLE. MR. KALIVAS THEN TOOK THE LITERATURE OVER TO
THE MAIN BUILDING IN ANDOVER AND SHOWED THE LITERATURE TO HIS
SUPERVISORS AND MS. LILLIAN HENSHAW, A LABOR RELATIONS SPECIALIST. UPON
BEING ADVISED BY MS. HENSHAW THAT THE LITERATURE SHOULD BE RETURNED, MR.
KALIVAS RETURNED TO THE ANNEX AND AT ABOUT 1 P.M. RESTORED SOME OF THE
UNION LITERATURE TO THE CAFETERIA TABLE. ACCORDING TO MR. KALIVAS, HE
HAD ORIGINALLY ONLY TAKEN ABOUT EIGHT COPIES OF EACH DOCUMENT. AFTER
LEAVING A NUMBER OF COPIES OF THE LITERATURE WITH HIS SUPERVISORS HE HAD
ONLY ABOUT 3 OR 4 COPIES OF EACH DOCUMENT LEFT, WHICH HE RETURNED TO THE
CAFETERIA TABLE. /5/
AS NOTED ABOVE, MS. MARTINO DISAPPROVED OF THE UNION LEAFLET
CONTAINING DISPARAGING REFERENCES TO MS. VERVILLE. UPON RETURNING TO
MS. VERVILLE'S UNIT AFTER HER MORNING BREAK, MS. MARTINO SHOWED THE
LEAFLET TO MS. VERVILLE, WHO AT THE TIME WAS JUST COMPLETING A
BACKGAMMON GAME WITH ANOTHER EMPLOYEE WHO HAD OPTED TO TAKE THE FIFTEEN
MINUTE MORNING BREAK AT HER PLACE OF WORK. THE RECORD FURTHER INDICATES
THAT A NUMBER OF OTHER EMPLOYEES IN MS. VERVILLE'S UNIT WERE EITHER
RETURNING FROM THEIR BREAKS OR HAD SPENT THEIR BREAKS OBSERVING THE
BACKGAMMON GAME. IN ANY EVENT, AFTER MS. VERVILLE READ THE UNION
LEAFLET IN WHICH SHE WAS AWARDED THE "HOLIDAY TURKEY" SHE THEN ASKED THE
EMPLOYEES IN HER UNIT TO READ THE LEAFLET AND HANDED THE LEAFLET TO THE
EMPLOYEE NEAREST HER. /6/ WHILE THE EMPLOYEES WERE MILLING AROUND AND
READING THE LEAFLET, AN EMPLOYEE ASKED WHO WAS RESPONSIBLE FOR THE UNION
LEAFLET. ACCORDING, MS. VERNON AND MS. WHITAKER, MS. VERVILLE DENIED
POINTING OUT MS. CORMIER OR MOUTHING HER NAME. I CREDIT MS. VERVILLE'S
DENIAL.
DISCUSSION AND CONCLUSIONS
IT IS WELL ESTABLISHED, BOTH IN THE PRIVATE AND FEDERAL SECTOR, THAT
THE RIGHT ACCORDED EMPLOYEES TO "JOIN, OR ASSIST ANY LABOR ORGANIZATION"
ENCOMPASSES THE DISTRIBUTION OF UNION LITERATURE IN NON-WORK AREAS
DURING NONWORKING TIME. CHARLESTON NAVAL SHIPYARD AND FEDERAL EMPLOYEES
METAL TRADES COUNCIL, METAL TRADES DEPT. AFL-CIO, A/SLMR NO. 1;
LETOURNEAU CO. OF GEORGIA V. NLRB, 324 U.S. 793; REPUBLIC AVIATION CORP
V. NLRB 324 U.S. 793.
RESPONDENT ACKNOWLEDGES THE ABOVE INTERPRETATION OF THE LAW, BUT
TAKES THE POSITION THAT "SCURRILOUS AND DEFAMATORY" LITERATURE, SUCH AS
THE "HOLIDAY TURKEY" LEAFLET, IS DISRUPTIVE OF AGENCY DISCIPLINE AND
HENCE OUTSIDE THE AMBIT OF THE PROTECTED ACTIVITY SANCTIONED BY SECTION
7102 OF THE STATUTE. IN SUPPORT OF ITS POSITION, RESPONDENT RELIES ON
MARYLAND DRYDOCK CO. V. NLRB, 183 F2D. 538, (4TH CIR.), WHEREIN THE
COURT FOUND THE DISTRIBUTION OF LITERATURE LAMPOONING A COMPANY OFFICIAL
AND REFERRING TO THE OFFICIAL AS A GOOSE AND VULTURE TO BE UNPROTECTED
ACTIVITY SINCE THE LITERATURE WAS "MANIFESTLY DESTRUCTIVE OF
DISCIPLINE." WITH RESPECT TO THE OTHER OR COMPANION UNION LEAFLET
REMOVED BY RESPONDENT'S MANAGER FROM THE CAFETERIA, RESPONDENT TAKE THE
POSITION THAT ALL SUCH LITERATURE WAS NOT REMOVED, AND EVEN IF IT WERE,
THAT SUCH VIOLATION WAS OF A DE MINIMUS NATURE SINCE THE LEAFLETS WERE
SUBSEQUENTLY RETURNED TO THE CAFETERIA SOME THREE HOURS LATER.
ACCORDINGLY, RESPONDENT TAKES THE POSITION THAT A POSTING REMEDY IS NOT
IN ORDER.
CONTRARY TO RESPONDENT, I FIND THE "HOLIDAY TURKEY" LEAFLET TO BE OF
AN ENTIRELY DIFFERENT CHARACTER THAN THE LITERATURE FOUND TO BE
"SCURRILOUS" AND "DEFAMATORY" IN MARYLAND DRYDOCK, SUPRA. UNLIKE THE
LITERATURE IN MARYLAND DRYDOCK, WHICH IN THE MAIN CONSISTED OF PERSONAL
ATTACK ON RESPONDENT'S OFFICERS, THE "HOLIDAY TURKEY" LEAFLET ENUMERATED
THE WORKING CONDITIONS AND PRACTICES THE UNION WAS UNHAPPY WITH AND
AWARDED MS. VERVILLE THE "HOLIDAY TURKEY" FOR BEING THE MANAGEMENT
OFFICIAL RESPONSIBLE THERFORE. IN MARYLAND DRYDOCK THE UNION
PUBLICATION CONSISTED OF GENERAL INSULTS TO MANAGEMENT WITHOUT ANY
REFERENCE TO, OR CONNECTION WITH, WORKING CONDITIONS OR PRACTICES.
ACCORDINGLY, I FIND THE COURT'S DECISION IN MARYLAND DRYDOCK, SUPRA, TO
BE DISTINGUISHABLE AND HENCE NOT CONTROLLING.
MOREOVER, IT IS NOTED THAT THE ASSISTANT SECRETARY HAS CONSIDERED
SIMILAR LITERATURE AS THAT UNDER CONSIDERATION HEREIN AND FOUND THAT THE
INCLUSION OF INSULTING AND DEROGATORY REFERENCES TO MANAGEMENT OFFICIALS
IN SUCH LITERATURE TO BE AN INSUFFICIENT BASIS FOR REMOVING THE
DISTRIBUTION OF THE LITERATURE FROM THE PROTECTION OF THE EXECUTIVE
ORDER. DEPARTMENT OF NAVY, NAVAL AIR REWORK FACILITY 7 LODGE 39,
DISTRICT 74, IAM, A/SLMR NO. 543. IN REACHING HIS CONCLUSION IN THE
AFOREMENTIONED RESPECT THE ASSISTANT SECRETARY RELIED ON THE SUPREME
COURT'S DECISION IN OLD DOMINION BRANCH NO. 496, NATIONAL ASSOCIATION OF
LETTER CARRIERS, AFL-CIO V. AUSTIN, 418 U.S. 264, WHEREIN THE COURT MADE
IT CLEAR THAT EMPLOYEES IN THE PUBLIC SECTOR WERE ENTITLED TO THE SAME
COMMUNICATION RIGHTS ACCORDED TO EMPLOYEES IN THE PRIVATE SECTOR. THE
COURT WENT ON TO CITE ITS OWN DECISION IN LINN V. PLANT GUARD WORKERS,
383 U.S. 53, WHEREIN THE USE OF SUCH EPITHETS AS "SCAB," "LIAR",
"UNFAIR" IN UNION LITERATURE WERE FOUND TO BE AN INSUFFICIENT BASIS FOR
REMOVING THE LITERATURE FROM THE PROTECTION OF THE NATIONAL LABOR
RELATIONS ACT. ACCORDINGLY, IN VIEW OF THE ABOVE CONSIDERATIONS, I FIND
THAT THE "HOLIDAY TURKEY" LEAFLET FALLS WITHIN THE PROTECTION OF THE
STATUTE AND THAT RESPONDENT'S ACTION IN REMOVING IT AND THE OTHER
COMPANION PIECE OF UNION LITERATURE FROM THE CAFETERIA WAS VIOLATIVE OF
SECTION 7116(A)(1) OF THE STATUTE. CONTRARY TO RESPONDENT, I DO NOT
CONSIDER SUCH VIOLATION TO BE DE MINIMUS AND SHALL THEREFORE RECOMMEND
AN APPROPRIATE REMEDIAL ORDER.
TURNING NOW TO THE REMAINING ALLEGATION OF THE COMPLAINT, I.E. THE
ACTION OF MS. VERVILLE IN REQUESTING HER EMPLOYEES TO READ THE "HOLIDAY
TURKEY" LEAFLET, I FIND THAT SUCH ACTION DID NOT, UNDER ALL THE
CIRCUMSTANCES, CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) OF THE
STATUTE. THUS, THE RECORD INDICATES THAT THE REQUEST WAS CASUALLY MADE
WITHOUT ANY ENFORCEMENT OR POLICING BY MS. VERVILLE. CONSIDERING THE
FACT THAT HER REQUEST WAS OF A CASUAL NATURE AND ISSUED IMMEDIATELY
AFTER SHE WAS FIRST SHOWN THE LEAFLET, I CAN NOT, AS URGED BY THE
GENERAL COUNSEL, FIND THAT THE REQUEST, STANDING ALONE, CONVEYED THE
"MESSAGE THAT THE VOICING OF COMPLAINTS REGARDING THE POLICIES AND
PRACTICES OF HER UNIT WAS NOT TO BE CONDONED: AND WOULD THUS INHIBIT
THEIR FUTURE ACTIVITIES IN THIS REGARD. HAD MS. VERVILLE DISCOVERED THE
LEAFLET HERSELF AND THEN PROCEEDED TO SUBSEQUENTLY ISSUE INSTRUCTIONS TO
EMPLOYEES TO READ SAME, A DIFFERENT CONCLUSIONS MIGHT BE IN ORDER,
HOWEVER SUCH IS NOT THE CASE. ACCORDINGLY, I SHALL RECOMMEND THAT THIS
ALLEGATION OF THE COMPLAINT BE DISMISSED.
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. SECTION 7118(A) (7)(A), AND
SECTION 2423,29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SECTION
2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE
SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERRING, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 7102 OF THE STATUTE, BY
REMOVING UNION LITERATURE PLACED IN THE CAFETERIA OR OTHER NON-WORK
AREAS BY ITS EMPLOYEES DURING NON-WORKING TIME.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN
SECTION 7102 OF THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE:
(A) POST AT THE NORTH ATLANTIC SERVICE CENTER, ANDOVER,
MASSACHUSETTS, AND THE WILMINGTON
ANNEX TO THE SERVICE CENTER, 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 DIRECTOR
OF THE NORTH ATLANTIC SERVICE CENTER, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE 7116(A)(1) ALLEGATION OF THE COMPLAINT
PREDICATED ON THE ACTIONS OF MS. VERVILLE, WHICH HAS BEEN FOUND SUPRA
NOT TO BE VIOLATIVE OF THE STATUTE, BE, AND HEREBY IS, DISMISSED. /7/
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 30, 1981
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 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 7102 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BY REMOVING UNION LITERATURE
PLACED IN THE CAFETERIA OR OTHER NON-WORK AREAS BY OUR EMPLOYEES DURING
NON-WORK TIME.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
7102 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 441
STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS, AND WHOSE TELEPHONE
NUMBER IS (617) 223-0920.
ATTACHMENT A
NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 68
SUPERVISOR OF THE MONTH
CONGRATULATIONS FRANNY. YOU HAVE BEEN CHOSEN SUPERVISOR OF THE
MONTH. DUE TO THE FACT THAT YOU HAVE THE MOST EMPLOYEE COMPLAINTS, WE
AT CHAPTER 68 OF NTEU FIND THIS AWARD THE MOST APPROPRIATE.
EMPLOYEES ARE COMPLAINING THAT THOSE WHO NEED REGULAR MEDICAL
ATTENTION (NO FAULT OF YOURS, OF COURSE) SHOULD NOT BE TOLD TO REPORT TO
WORK BEFORE OR AFTER THEIR APPOINTMENTS, NOR DO EMPLOYEES WHO ARE TOO
SICK TO GET OUT OF BED FEEL THAT THEY MUST MAKE A PERSONAL PHONE CALL TO
JUSTIFY THEIR SICK LEAVE.
ANOTHER EMPLOYEE PROBLEM AREA IS YOUR FURNITURE MOVING. PERMANENTS
FEEL THEY SHOULD BE SEATED WHERE THEY WORK. SOME EMPLOYEES HAVE
SUGGESTED MOVING YOUR DESK CLOSER TO THE DOCK (OF COURSE, THEY WOULD BE
SURE TO CHECK WITH THE UNION).
THERE IS A UNION CONTRACT (A LITTLE RED BOOK) AT YOUR DISPOSAL AND
EMPLOYEES THINK "DISPOSAL" IS WHERE YOU PUT IT; ALONG WITH YOUR
COMPASSION -
A JOB WELL DONE . . .
FRANNY, BECAUSE YOU EXCEL AT DISCONTENT AND DISRUPTION, WE AT NTEU
CHAPTER 68 ARE PLEASED TO AWARD YOU THIS DISTINGUISHED RECOGNITION AS
"SUPERVISOR OF THE MONTH" OR, THIS SEASON'S HOLIDAY TURKEY.
NTEU CHAPTER 68
--------------- FOOTNOTES: ---------------
/1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
RESOLUTION IS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD
CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
FINDINGS.
/2/ THE BREAKS WERE AS FOLLOWS: 9:00 A.M. - 9:15 A.M., 9:15 A.M. -
9:30 A.M., 9:30 A.M. - 9:45 A.M.
/3/ THE RECORD REVEALS THAT THE CAFETERIA TABLE NEAR THE DOOR WAS
GENERALLY USED FOR PURPOSES OF DISTRIBUTING LITERATURE CONCERNING UNION
ACTIVITIES, BLOOD DONOR DRIVES, ETC. THE TABLE WAS ALSO USED FOR THE
STORAGE OF STRAWS, NAPKINS AND SPOONS. FURTHER ACCORDING TO MS. SNOW,
SHE HAD IN THE PAST PUT UNION LITERATURE ON THE TABLE WITHOUT INCIDENT.
/4/ THE FACT SURROUNDING MS. MARTINO'S RETURN TO HER UNIT WITH A COPY
OF THE UNION LITERATURE WILL BE DISCUSSED INFRA.
/5/ CONTRARY TO THE TESTIMONY OF MS. SNOW AND MR. KEMPTON, WHOM I
CREDIT, MR. KALIVAS STATED THAT HE DID NOT REMOVE ALL THE UNION
LITERATURE FROM THE CAFETERIA TABLE. ASIDE FROM DEMEANOR AND THE FACT
THAT MS. SNOW AND MR. KEMPTON CORROBORATED EACH OTHER'S TESTIMONY
CONCERNING THE AMOUNT OF LITERATURE REMOVED BY MR. KALIVAS, I FIND IT
HARD TO BELIEVE THAT RESPONDENT'S LABOR RELATIONS SPECIALIST WOULD HAVE
ORDERED THE RETURN OF THE UNION LITERATURE IF MR. KALIVAS HAD ONLY TAKEN
A FEW RATHER THAN ALL THE COPIES OF THE UNION LITERATURE ON THE
CAFETERIA TABLE.
/6/ THE EXACT WORDS USED BY MS. VERVILLE ARE IN DISPUTE. THUS, MS.
MARTINO TESTIFIED THAT MS. VERVILLE STATED "EXCUSE ME, PLEASE, I HAVE
SOMETHING I'D LIKE TO READ;" MS. VERNON RECALLED MS. VERVILLE SAYING
"BEFORE ANY OF YOU LEAVE THIS WORK AREA, I WANT YOU TO READ THIS;" MS.
WHITAKER TESTIFIED THAT MS. VERVILLE "ASKED THE EMPLOYEES WHO WERE ABOUT
TO GO BACK TO THEIR DESKS TO WAIT, BECAUSE SHE HAD A PAPER THAT SHE
WANTED THEM TO READ." MS. VERVILLE TESTIFIED THAT SHE MERELY "ASKED SOME
OF MY EMPLOYEES TO READ IT."
/7/ IN THE ABSENCE OF ANY OBJECTION, RESPONDENT'S MOTION TO CORRECT
TRANSCRIPT, SHOULD BE, AND HEREBY IS, GRANTED.