[ v09 p213 ]
09:0213(32)CA
The decision of the Authority follows:
9 FLRA No. 32
GENERAL SERVICES ADMINISTRATION
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1705
Charging Party
Case No. 3-CA-1016
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN OF THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTION. THE JUDGE FOUND THAT THE RESPONDENT HAD NOT
ENGAGED IN ANOTHER UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND
RECOMMENDED DISMISSAL OF THAT PORTION OF THE COMPLAINT. THEREAFTER, THE
GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S DECISION AND THE
RESPONDENT FILED AN OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS.
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
ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED HEREIN.
THE COMPLAINT ALLEGED THAT THE "RESPONDENT DISPARATELY ENFORCED
AGAINST THE UNION A POLICY REGARDING NO-DISTRIBUTION DURING EMPLOYEES'
NON-WORK TIME TO THE EMPLOYEES' DESKS AND ON WINDSHIELDS OF EMPLOYEES'
CARS IN THE EMPLOYEES' PARKING LOT, THEREBY INTERFERING WITH,
RESTRAINING, AND COERCING EMPLOYEES" IN VIOLATION OF SECTION 7116(A)(1)
OF THE STATUTE. THE JUDGE CONCLUDED, AMONG OTHER THINGS, THAT THE
COMPLAINT SHOULD BE DISMISSED WITH RESPECT TO THE ALLEGATION THAT
RESPONDENT'S REFUSAL TO ALLOW DESK-TO-DESK DISTRIBUTION OF THE UNION
LEAFLET CONSTITUTED UNLAWFUL INTERFERENCE WITH EMPLOYEE RIGHTS IN
VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE. THE JUDGE REASONED THAT
THE CASE INVOLVED "A SPECIFIC REQUEST BY THE UNION TO DISTRIBUTE THE
(LEAFLET) AND THE ACTIVITY'S RESPONSE," RATHER THAN A QUESTION OF
WHETHER OR NOT THE RESPONDENT "FORMULATED SOME TYPE OF AN OVERBROAD 'NO
DISTRIBUTION' RULE." THE JUDGE FOUND, IN THIS REGARD, THAT AS THE
INITIAL REQUEST TO DISTRIBUTE THE LEAFLET DESK-TO-DESK WOULD HAVE
INVOLVED EITHER THE DISTRIBUTOR'S OR THE RECIPIENT'S WORK TIME, THE
REQUEST TO DISTRIBUTE WAS EFFECTIVELY A REQUEST FOR OFFICIAL TIME
PURSUANT TO SECTION 7131(D) OF THE STATUTE. /1/ FURTHER, THE JUDGE
FOUND "(E)VEN IN LIGHT OF THE ALLEGED DISPARATE TREATMENT . . .
(S)ECTION 7131(D) SPECIFICALLY STATES THAT THE GRANTING (OF) OFFICIAL
TIME FOR THE CONDUCT IN QUESTION IS A MATTER FOR COLLECTIVE BARGAINING
AND THUS, IN EVENT OF AN IMPASSE, TO BE DISPOSED OF BY THE FEDERAL
SERVICES IMPASSE (SIC) PANEL." THEREFORE, THE JUDGE CONCLUDED THE UNION
WAS NOT ENTITLED, IN THE ABSENCE OF AN AGREEMENT, TO DUTY TIME TO
DISTRIBUTE THE LEAFLETS.
WHILE AGREEING WITH HIS CONCLUSION, THE AUTHORITY DOES NOT ADOPT THE
JUDGE'S REASONING. IN THE VIEW OF THE AUTHORITY, THE ISSUE INVOLVED
HEREIN CONCERNS THE UNION'S RIGHT TO DISTRIBUTE LITERATURE. /2/ UNDER
SIMILAR FACTUAL CIRCUMSTANCES, THE AUTHORITY HAS CONCLUDED THAT A UNION
HAS A RIGHT TO DISTRIBUTE LITERATURE "IN NON-WORK AREA(S) DURING
NON-WORK TIME . . . " /3/ SUCH RIGHT FLOWS FROM SECTION 7102 OF THE
STATUTE WHICH GUARANTEES TO EMPLOYEES THE RIGHT TO "FORM, JOIN, OR
ASSIST" A LABOR ORGANIZATION. HOWEVER, THERE IS NO STATUTORY RIGHT TO
DISTRIBUTE LITERATURE IN WORK AREAS DURING WORK TIME, AND ABSENT
AGREEMENT BY AN AGENCY AND BARGAINING REPRESENTATIVE, AN AGENCY MAY
VALIDLY PROHIBIT SUCH DISTRIBUTION. THEREFORE, THE UNION HEREIN HAD NO
STATUTORY RIGHT TO DISTRIBUTE ITS LEAFLET "DESK-TO-DESK" AS REQUESTED,
AS THIS DISTRIBUTION WOULD HAVE TAKEN PLACE IN WORK AREAS. /4/
THE GENERAL COUNSEL ALSO URGES THAT BECAUSE DESK-TO-DESK DISTRIBUTION
OF THE UNION'S LITERATURE HAD OCCURRED PREVIOUSLY, AND BECAUSE OTHER
TYPES OF LITERATURE ARE ROUTINELY DISTRIBUTED TO RESPONDENT'S EMPLOYEES,
RESPONDENT'S REFUSAL OF THE UNION'S REQUEST HEREIN CONSTITUTED DISPARATE
TREATMENT OF THE UNION IN VIOLATION OF SECTION 7116(A)(1) OF THE
STATUTE. EXAMPLES OF LITERATURE ROUTINELY DISTRIBUTED ARE: NOTICES
FROM THE GENERAL SERVICES EMPLOYEE ASSOCIATION; NOTICES OF PROFESSIONAL
ASSOCIATION MEETINGS; NOTICES OF BLOOD, SAVINGS BONDS AND COMBINED
FEDERAL CAMPAIGN DRIVES; INFORMAL NOTICES OF EMPLOYEE RETIREMENT
PARTIES; AND TWO PRIOR UNION FLYERS DEALING WITH INFORMATION CONCERNING
A PROPOSED PAY CAP AND MANAGEMENT'S CONDUCT OF NEGOTIATIONS. THE RECORD
REFLECTS THAT MOST OF THE ABOVE-NOTED SUBMISSIONS WERE AGENCY-SPONSORED
LITERATURE DISTRIBUTED THROUGH THE AGENCY MAIL SYSTEM AND NOT
DESK-TO-DESK. WITH RESPECT TO THOSE MATERIALS WHICH WERE NOT
AGENCY-SPONSORED AND WHICH MAY HAVE BEEN DISTRIBUTED DESK-TO-DESK, SUCH
AS INFORMAL RETIREMENT PARTY NOTICES, AND THE TWO FLYERS, THE RECORD
DOES NOT ESTABLISH THAT RESPONDENT'S PERMISSION WAS SOUGHT OR THAT
RESPONDENT KNEW OF THE DISTRIBUTIONS, THAT SUCH ACTIONS WERE
SUBSEQUENTLY CONDONED, OR THAT SUCH DISTRIBUTIONS WERE ACTIVITY-WIDE.
AS THE RECORD DOES NOT SUPPORT THE ALLEGATION THAT THE RESPONDENT HAD
PREVIOUSLY MAINTAINED A PAST PRACTICE OR PERMITTED OR CONDONED HEREIN,
THE AUTHORITY FINDS THAT THE GENERAL COUNSEL HAS FAILED TO MEET ITS
BURDEN OF ESTABLISHING THAT THE RESPONDENT'S REFUSAL TO PERMIT THE
DISTRIBUTION HEREIN AMOUNTS TO DISPARATE TREATMENT OF THE UNION IN
VIOLATION OF THE STATUTE.
HOWEVER, IN AGREEMENT WITH THE JUDGE, AND NOTING PARTICULARLY THE
ABSENCE OF EXCEPTIONS BY THE RESPONDENT, THE AUTHORITY FINDS THAT
RESPONDENT'S REFUSAL TO PERMIT DISTRIBUTION OF THE LEAFLETS IN THE
PARKING AREA, A NON-WORK AREA, DURING THE NON-WORK TIME OF THE
DISTRIBUTOR CONSTITUTES A VIOLATION OF THE STATUTE. AS NOTED ABOVE, THE
AUTHORITY HAS CONCLUDED, IN SIMILAR FACTUAL CIRCUMSTANCES, THAT
DISTRIBUTION OF UNION LITERATURE BY AN EMPLOYEE DURING NON-WORK TIME IN
A NON-WORK AREA IS A RIGHT ASSURED BY THE STATUTE. ACCORDINGLY, THE
AUTHORITY CONCLUDES THAT RESPONDENT'S CONDUCT IN THIS REGARD WAS
VIOLATIVE OF SECTION 7116(A)(1) OF THE STATUTE, AND THE RESPONDENT SHALL
BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE APPROPRIATE
AFFIRMATIVE ACTION.
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE GENERAL SERVICES ADMINISTRATION SHALL:
(1) CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF RIGHTS
ASSURED BY THE STATUTE BY REFUSING PERMISSION TO LOCAL 1705, NATIONAL
FEDERATION OF FEDERAL
EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION, TO HAVE EMPLOYEES
DISTRIBUTE LEAFLETS DURING
NON-WORK TIME IN THE EMPLOYEE PARKING LOT IN THE GSA MAIN BUILDING AT
18TH & F STREETS, N.W.,
WASHINGTON, D.C.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) PERMIT EMPLOYEE REPRESENTATIVES OF LOCAL 1705, NATIONAL
FEDERATION OF FEDERAL
EMPLOYEES, TO DISTRIBUTE LEAFLETS DURING NON-WORK TIME IN THE
EMPLOYEE PARKING LOT IN THE GSA
MAIN BUILDING AT 18TH AND F STREETS, N.W., WASHINGTON, D.C.
(B) POST AT THE GSA MAIN BUILDING, 18TH & F STREETS, N.W.,
WASHINGTON, D.C., 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 ADMINISTRATOR OF
THE GENERAL SERVICES
ADMINISTRATION AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE ADMINISTRATOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SAID
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, REGION III, 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 ALLEGATION OF THE COMPLAINT IN CASE
NO. 3-CA-1016 THAT RESPONDENT'S REFUSAL TO PERMIT DESK-TO-DESK
DISTRIBUTION OF THE LEAFLETS WAS VIOLATIVE OF THE STATUTE BE, AND IT
HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 24, 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 ASSURED BY THE STATUTE BY REFUSING PERMISSION
TO LOCAL 1705, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
LABOR ORGANIZATION, TO HAVE EMPLOYEES DISTRIBUTE LEAFLETS DURING
NON-WORK TIME IN THE EMPLOYEE PARKING LOT IN THE GSA MAIN BUILDING AT
18TH & F STREETS, N.W., WASHINGTON, D.C.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PERMIT EMPLOYEE REPRESENTATIVES OF LOCAL 1705, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES TO DISTRIBUTE LEAFLETS DURING NON-WORK
TIME IN THE EMPLOYEE PARKING LOT IN THE GSA MAIN BUILDING AT 18TH & F
STREETS, N.W., WASHINGTON, D.C.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION III, FOR THE FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS: 1111 18TH STREET, N.W., SUITE 700,
WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE NUMBER IS (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SAM LIVENGOOD
HENRY LEIBOWITZ
FOR THE RESPONDENT
EILEEN H. HAMAMURA, ESQ.
HENRY T. WILSON, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
ET SEQ (HEREINAFTER CALLED THE STATUTE) AND THE RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY 5 C.F.R. CHAPTER XIV, SEC. 2410 ET
SEQ.
PURSUANT TO A CHARGE FILED ON MARCH 21, 1980, A FIRST AMENDED CHARGE
FILED ON JUNE 19, 1980, AND A SECOND AMENDED CHARGE FILED ON JUNE 20,
1980, BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1705,
(HEREINAFTER CALLED THE UNION AND/OR CHARGING PARTY), AGAINST THE
GENERAL SERVICES ADMINISTRATION FEDERAL LABOR RELATIONS AUTHORITY, BY
THE ACTING REGIONAL DIRECTOR FOR REGION 3, ISSUED A COMPLAINT AND NOTICE
OF HEARING ON JUNE 25, 1980 ALLEGING THAT RESPONDENT HAD ENGAGED IN AND
WAS ENGAGING IN UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTION
7116(A)(1) OF THE STATUTE. THE COMPLAINT ALLEGES THAT ON MARCH 14, 1980
RESPONDENT DISPARATELY ENFORCED A POLICY REFUSING TO PERMIT THE UNION TO
DISTRIBUTE A LEAFLET DURING EMPLOYEES NON-WORK TIME TO EMPLOYEES' DESKS
AND WINDSHIELDS OF EMPLOYEES' CARS IN THE EMPLOYEE PARKING LOT.
RESPONDENT ADMITS JURISDICTION BUT DENIES THAT IT VIOLATED THE STATUTE.
A HEARING IN THIS MATTER WAS CONDUCTED ON SEPTEMBER 22 AND 23 IN
WASHINGTON, D.C. AT WHICH TIME THE GENERAL COUNSEL AND RESPONDENT WERE
REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
HEREIN AND TO ARGUE ORALLY. BRIEFS WERE FILED BY RESPONDENT AND COUNSEL
FOR THE GENERAL COUNSEL ON NOVEMBER 6, 1980 AND HAVE BEEN FULLY
CONSIDERED. /5/
UPON THE ENTIRE RECORD /6/ IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
A. INCIDENT AT ISSUE
AT ALL RELEVANT TIMES THE UNION HAS BEEN RECOGNIZED AS THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE FOR A UNIT COMPOSED OF ALL GENERAL
SCHEDULE AND WAGE GRADE NON-PROFESSIONAL EMPLOYEES OF THE RESPONDENT'S
CENTRAL OFFICE IN THE METROPOLITAN WASHINGTON, D.C. AREA. THE UNION AND
RESPONDENT WERE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT WHICH WAS
EFFECTIVE DURING MARCH OF 1980. FURTHER THE CONTRACT HAD BEEN MODIFIED
BY THE PARTIES BY A SEPARATE AGREEMENT. ARTICLE XX SECTION 1 OF THE
COLLECTIVE BARGAINING AGREEMENT PROVIDES THAT THE INTERNAL MAIL SYSTEM
OF THE RESPONDENT MAY BE USED BY THE UNION TO COMMUNICATE WITH THE
EMPLOYEES AND UNION OFFICIALS BUT THAT " . . . IT SHALL NOT BE USED FOR
THE SOLICITATION OF MEMBERSHIP OR DUES, OR OTHER INTERNAL UNION
BUSINESS." ARTICLE VII SECTION 6 PROVIDES THAT THE UNION CAN POST
NOTICES ON OFFICIAL BULLETIN BOARD SPACE AND THE SUPPLEMENTAL AGREEMENT
PROVIDES THE UNION WITH BULLETIN BOARD SPACE AT 5 DIFFERENT LOCATIONS.
APPROXIMATELY 3,000 GSA EMPLOYEES WORK IN THE GSA MAIN BUILDING AT
18TH AND F STREET, N.W., WASHINGTON, D.C. THE SUBJECT BARGAINING UNIT
REPRESENTED BY THE UNION IS COMPOSED OF APPROXIMATELY 1,600-1,700
EMPLOYEES, WITH SOME 1,300-1,400 OF THEM EMPLOYED AT THE GSA MAIN
BUILDING. THE REMAINING 300 EMPLOYEES IN THE SUBJECT WORK UNIT WORK
ELSEWHERE. THE GSA MAIN BUILDING HAS AN EMPLOYEE PARKING LOT WITH
APPROXIMATELY 141 SPACES IN THE EAST AND WEST COURT, AND ALSO HAS A
CAROUSEL, OR STACKING RAMP, WITH ADDITIONAL PARKING SPACES.
EMPLOYEE-DRIVERS HAVE IDENTIFICATIONS THAT PERMIT THEM TO UTILIZE THE
PARKING FACILITIES. AT ALL TIMES MATERIAL HEREIN GUARDS WERE STATIONED
AT THE TWO PARKING LOT ENTRANCES TO CHECK THE DRIVER IDENTIFICATIONS.
THERE ARE ALSO PEDESTRIAN ACCESS DOORS FROM THE GSA MAIN BUILDING TO THE
PARKING AREA.
ON MARCH 14, 1980, AT ABOUT 12:15 PM UNION PRESIDENT SALLY JOYCE
HYMES WAS ADVISED, TELEPHONICALLY, BY NATIONAL FEDERATION OF FEDERAL
EMPLOYEES DIRECTOR OF CIVILIAN AGENCIES BRANCH, CHARLES BERNHARDT THAT,
BECAUSE CONGRESS MIGHT PASS A PENDING PAY REFORM BILL BEFORE PROPER
HEARINGS COULD BE HELD, HE WAS CALLING VARIOUS NFFE LOCALS, DIRECTOR
BERNHARDT STATED THAT BECAUSE THIS PAY REFORM BILL WAS OF A CRITICAL
IMPORTANCE TO FEDERAL EMPLOYEES NFFE'S NATIONAL OFFICE WANTED THE LOCAL
UNIONS TO ENCOURAGE EMPLOYEES TO CONTACT THEIR REPRESENTATIVES IN
CONGRESS, SPECIFICALLY HOUSE SPEAKER O'NEIL, TO ENSURE THAT PROPER
HEARINGS WOULD BE HELD.
UNION PRESIDENT HYMES TYPED A UNION FLYER ENTITLED "URGENT NOTICE TO
ALL UNIT EMPLOYEES, UNION MEMBERS, PROFESSIONALS, MANAGERS, SUPERVISORS,
ETC.", WHICH OUTLINED THE INFORMATION CONVEYED BY BERNHARDT AND WHICH
URGED THE READERS TO CONTACT THE HOUSE SPEAKER AND THEIR OWN
REPRESENTATIVES AND/OR SENATORS WITH RESPECT TO THE NECESSITY OF HAVING
HEARINGS ON THE PAY REFORM BILL. UNION PRESIDENT HYMES THEN DISTRIBUTED
ABOUT 15 TO 20 FLYERS IN HER IMMEDIATE WORK AREA AND IN SURROUNDING
AREAS BY PLACING THEM ON DESKS OR IN "IN-BOXES". IN THOSE INSTANCES
WHERE THE EMPLOYEE RECEIVING THE DOCUMENT WAS WORKING AT HIS DESK, UNION
PRESIDENT HYMES SUMMARIZED THE FLYER, ASKED THE PERSON TO READ IT AND TO
TAKE THE IMMEDIATE ACTION REQUESTED. THE EMPLOYEE RECEIVING THE FLYER
THEN READ IT.
UNION PRESIDENT HYMES DECIDED TO SEEK MANAGEMENT'S APPROVAL TO
DISTRIBUTE THE FLYER "ON THE CLOCK" AND IN THE WORK AREAS. TO SECURE
SUCH APPROVAL UNION PRESIDENT HYMES CALLED THE OFFICE OF THE DIRECTOR OF
EMPLOYEE AND LABOR RELATIONS BUT THE RESPONSIBLE OFFICIALS WERE NOT
AVAILABLE. SHE THEN CALLED TOM GASQUE, ASSISTANT GENERAL COUNSEL OF THE
LABOR LAW DIVISION, WHO SUGGESTED THAT SHE CALL WILLIAM PAZ, ASSISTANT
ADMINISTRATOR FOR HUMAN RESOURCES AND ORGANIZATION. MS. HYMES CALLED
MR. PAZ' OFFICE AND SPOKE WITH MR. PAZ' EXECUTIVE ASSISTANT, BRUCE
HOWARD. MS. HYMES DESCRIBED THE CIRCUMSTANCES AND THE FLYER AND ASKED
PERMISSION TO DISTRIBUTE IT. MR. HOWARD STATED THAT HE COULD NOT GIVE
HER AN ANSWER AND ASKED TO SEE THE FLYER. MS. HYMES WENT TO MR.
HOWARD'S OFFICE TO SHOW HIM THE FLYER AND WAS TAKEN TO SEE MR. HOWARD'S
ASSISTANT, TOM HUIBIN. MS. HYMES AGAIN DESCRIBED THE CIRCUMSTANCES AND
THE FLYER AND ASKED PERMISSION TO IMMEDIATELY DISTRIBUTE THE FLYER,
ON-THE-CLOCK ON A DESK-TO-DESK BASIS. MR. HUIBIN AND MS. HYMES WENT TO
THE OFFICE OF NORMAN L. LINTON, DIRECTOR OF THE OFFICE OF PERSONNEL,
WHERE THEY SPOKE WITH DEPUTY DIRECTOR JOHN P. HANKARD. MS. HYMES
DESCRIBED THE CIRCUMSTANCES TO MR. HANKARD, HANDED HIM A COPY OF THE
FLYER AND ASKED PERMISSION FOR THE UNION TO IMMEDIATELY DISTRIBUTE THE
FLYERS BY A DESK-DROP ON-THE-CLOCK. MR. HANKARD OBJECTED THAT THE FLYER
APPEARED CLOSE TO LOBBYING AND, AFTER CONSULTING WITH LABOR RELATIONS
SPECIALIST WILLIAM CONLEY, INFORMED MS. HYMES THAT BECAUSE IT WAS CLOSE
TO LOBBYING HE COULD NOT PERMIT THE UNION TO DISTRIBUTE THE FLYER AT THE
DESKS AS REQUESTED. MS. HYMES DISPUTED THAT THE FLYER CONSTITUTED
LOBBYING AND INSISTED THAT THE UNION SHOULD HAVE THE RIGHT TO DISTRIBUTE
IT. DURING THE DISCUSSION MS. HYMES POINTED OUT THAT THE UNION
DISTRIBUTED TWO OTHER FLYERS DESK TO DESK, BOTH ON AND OFF THE CLOCK AND
THAT MANAGEMENT HADN'T OBJECTED. /7/ MS. HYMES STATED THAT SHE WANTED
TO DISTRIBUTE THE FLYER IMMEDIATELY BUT MR. HANKARD REPLIED SHE COULD
NOT DO IT ON THE CLOCK. MS. HYMES THEN STATED SHE WOULD DO IT OFF THE
CLOCK AND WOULD DISTRIBUTE IT DESK TO DESK. MR. HANKARD STATED THAT HE
WOULD NOT PERMIT THAT EITHER. MS. HYMES THEN STATED THAT SHE WOULD GO
TO THE PARKING AREA, OFF-THE-CLOCK, AND PUT FLYERS UNDER THE WINDSHIELD
WIPERS OF THE PARKED CARS. MR. HANKARD DENIED HER PERMISSION TO SO
DISTRIBUTE FLYERS IN THE PARKING LOT BUT SAID SHE COULD DISTRIBUTE THE
FLYER IN THE PUBLIC AREAS SUCH AS THE LOBBY, CAFETERIA AND THE ACCESS TO
THE PARKING AREAS.
MS. HYMES THEN WAITED UNTIL THE END OF HER WORKDAY AND DISTRIBUTED
FLYERS IN THE MAIN LOBBY FOR AN HOUR. FURTHER, ON THE FOLLOWING MONDAY
AND TUESDAY, MARCH 17 AND 18, MS. HYMES AND OTHER UNION VOLUNTEERS HAND
OUT FLIERS, ON THEIR OWN TIME, IN THE PUBLIC AREAS AND POSTED THEM ON
THE TWO UNION BULLETIN BOARDS.
B. PRIOR DISTRIBUTIONS
IN JANUARY 1979 MS. HYMES AND THEN UNION PRESIDENT GLENN DISTRIBUTED
A FLIER ON THE SOCIAL SECURITY FEDERAL RETIREMENT ISSUE TO ABOUT
ONE-THIRD TO ONE-HALF OF THE DESKS IN THE MAIN GSA BUILDING. MS. HYMES
AND MR. GLENN MADE A SECOND FLIER DISTRIBUTION IN JUNE 1979 CONCERNING
PICKETING AND THE PAY CAP. THIS DISTRIBUTION WAS MADE DESK TO DESK BOTH
ON AND OFF THE CLOCK. A THIRD DESK TO DESK DISTRIBUTION WAS MADE BY MS.
HYMES AND UNION NEGOTIATOR TEAMS ON OR ABOUT JUNE 23, 1979 REGARDING THE
STATUS OF CONTRACT NEGOTIATIONS. AFTER DISTRIBUTION RESPONDENT'S LABOR
RELATIONS SPECIALIST NICK CAVE EXPRESSED CONCERN THAT THE UNION
REPRESENTATIVES HAD GOTTEN INTO LOCKED OFFICES. NO MANAGEMENT
PERMISSION WAS SOUGHT AT ANY OF THESE DISTRIBUTIONS AND, OTHER THAN THE
CONVERSATION ALREADY DESCRIBED, RESPONDENT MADE NO OBJECTION TO THESE
UNION DISTRIBUTIONS.
THE RECORD ESTABLISHES THAT FLIERS BY VARIOUS KINDS OF ORGANIZATIONS
AND FOR VARIOUS PURPOSES ARE DISTRIBUTED AND CIRCULATED. ALTHOUGH THESE
FLIERS ENDED UP ON INDIVIDUAL DESKS, THE RECORD DOES NOT ESTABLISH
WHETHER THEY WERE DISTRIBUTED "DESK-TO-DESK" OR THROUGH THE INTERNAL
MAIL SYSTEM, THROUGH WHICH FLIERS ALSO END UP ON INDIVIDUAL DESKS
IN-BOXES. THE RECORD DOES ESTABLISH THAT SOME NOTICES AND FLIERS
REGARDING RETIREMENT AND BIRTHDAYS WERE DISTRIBUTED IN LOCAL WORK AREAS
ON A DESK TO DESK BASIS DURING WORK TIME.
DISCUSSION AND CONCLUSIONS
THE AGENCY CONTENDS THAT IT WAS PRIVILEGED TO REFUSE THE UNION'S
REQUEST TO DISTRIBUTE THE FLIERS BECAUSE THE FLIERS WERE AIMED AT
LEGISLATION PENDING BEFORE CONGRESS AND THUS THE SUBJECT MATTER OF THE
FLIER WAS OUTSIDE AGENCY CONTROL AND OUTSIDE EMPLOYER-EMPLOYEE
RELATIONSHIP. FURTHER RESPONDENT URGES THAT BECAUSE THE FLIER WAS
DIRECTED TO MANAGERS, SUPERVISORS AND PROFESSIONALS, IN ADDITION TO
EMPLOYEES, THE UNION HAD ABANDONED ALL CLAIMS TO PROTECTION UNDER THE
STATUTE.
A UNION'S CONDUCT IN ATTEMPTING TO INFLUENCE CONGRESS, ESPECIALLY
WITH RESPECT TO MATTERS THAT DIRECTLY AFFECT WORKING CONDITIONS, AS
WOULD THE PROPOSED PAY REFORM LEGISLATION, HAS BEEN RECOGNIZED AS
LEGITIMATE UNION CONDUCT WHICH IS ENTITLED TO FULL PROTECTION. SECTION
7102(1) OF THE STATUTE PROTECTS THE RIGHTS OF EMPLOYEES ACTING FOR LABOR
ORGANIZATIONS TO "PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO . . .
THE CONGRESS . . . " SEE ALSO U.S. DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, A/SLMR NO. 925, 7 A/SLMR 948(1977); AND EASTEX VS. NLRB,
437 U.S. 556(1978). THIS RIGHT OF A UNION TO COMMUNICATE WITH CONGRESS
IS ESSENTIAL IN THE FEDERAL SECTOR BECAUSE SO MANY FUNDAMENTAL WORKING
CONDITIONS ARE DIRECTLY DETERMINED BY CONGRESS THROUGH LEGISLATION.
THEREFORE, THE AGENCY'S ARGUMENT THAT THE UNION CONDUCT IN THE INSTANT
CASE, ATTEMPTING TO GET EMPLOYEES, UNION MEMBERS AND OTHERS, TO
COMMUNICATE WITH CONGRESS, WAS SOMEHOW UNPROTECTED BECAUSE IT DID NOT
INVOLVE THE "EMPLOYER-EMPLOYEE RELATIONSHIP" MUST BE REJECTED AS TOO
NARROW AN INTERPRETATION OF THE STATUTE'S PROTECTION OF UNION CONDUCT.
CF. EASTEX VS. NLRB, SUPRA. IN THE INSTANT CASE THE FLIER WAS DIRECTED
BOTH TO EMPLOYEES WITHIN THE UNIT REPRESENTED BY THE UNION AND TO THOSE
NOT REPRESENTED AND EVEN TO THOSE WHO COULD NOT BE REPRESENTED BY THE
UNION, I.E. MANAGEMENT OFFICIALS. IT IS FURTHER URGED THAT, BECAUSE
THE FLIER WAS DIRECTED TO A GROUP BROADER THAN THE GROUP REPRESENTED BY
THE UNION, THE DISTRIBUTION OF THE FLIER WAS SOMEHOW NOT PROTECTED UNION
CONDUCT, OR THAT THE CONDUCT LOST ITS PROTECTION. HERE AGAIN WHERE THE
UNION WAS AIMING ITS OTHERWISE PROTECTED CONDUCT AT A GROUP WHOM IT
SUBSTANTIALLY REPRESENTED OR COULD LAWFULLY REPRESENT, THAT CONDUCT MUST
BE PROTECTED. /8/
THE COUNSEL FOR THE GENERAL COUNSEL URGES THAT THE AGENCY, IN THIS
CASE, FORMULATED SOME TYPE OF AN OVERBROAD "NO DISTRIBUTION" RULE THAT
IS UNLAWFUL. RATHER THIS CASE INVOLVES A SPECIFIC REQUEST BY THE UNION
TO DISTRIBUTE THE SUBJECT FLIERS AND THE ACTIVITY'S RESPONSE. MS. HYMES
AT FIRST ASKED, DURING THE EARLY AFTERNOON, FOR PERMISSION TO DISTRIBUTE
THE FLIERS, ON THE CLOCK, DESK TO DESK. PERMISSION WAS DENIED. THEN
MS. HYMES ASKED FOR PERMISSION TO DISTRIBUTE THE FLIERS IMMEDIATELY,
DESK TO DESK OFF-THE-CLOCK. PERMISSION TO DO THIS WAS DENIED BUT SHE
WAS TOLD SHE COULD DISTRIBUTE THE FLIERS "OFF-THE-CLOCK" IN THE PUBLIC
AREAS (CAFETERIA, LOBBY, ETC.), WHICH SHE DID. SHE WAS ALSO DENIED
PERMISSION TO DISTRIBUTE THE FLIERS IN THE EMPLOYEE PARKING AREA,
"OFF-THE-CLOCK". SECTION 7131(A) OF THE STATUTE PROVIDES THAT, WITH
CERTAIN LIMITATIONS, EMPLOYEES WHILE "REPRESENTING AN EXCLUSIVE
REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT .
. . " SHALL BE AUTHORIZED OFFICIAL TIME. SECTION 7131(B) PROVIDES
HOWEVER THAT AN EMPLOYEE ENGAGING IN ACTIVITIES "RELATING TO THE
INTERNAL BUSINESS OF A LABOR ORGANIZATION . . . " SHALL PERFORM SUCH
ACTIVITIES ON A NON-DUTY STATUS.
SECTION 7131(D) OF THE STATUTE PROVIDES:
"(D) EXCEPT OR PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS
SECTION--
'(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
'(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
GRANTED OFFICIAL TIME IN
ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
TO BE REASONABLE,
NECESSARY, AND IN THE PUBLIC INTEREST . . . "
THE AGENCY URGES THAT THERE WAS NO VIOLATION OF THE STATUTE PROVEN
BECAUSE THE GENERAL COUNSEL'S EVIDENCE OF DISPARATE TREATMENT WAS
INADEQUATE; BECAUSE THERE WERE SPECIAL CIRCUMSTANCES RELATING TO THE
PARKING LOT; AND FINALLY, BECAUSE THE UNION HAD WAIVED ANY RIGHT IT HAD
BY NEGOTIATING METHODS OF COMMUNICATIONS IN ITS CONTRACT.
THE GENERAL COUNSEL URGES THAT SECTION 7131(B) LIMITATIONS ON USE OF
OFFICIAL TIME RELATE ONLY TO THE DISTRIBUTOR OF LEAFLETS, NOT TO THE
RECIPIENTS, AND THAT, IN ANY EVENT, THE DISTRIBUTION OF THE FLIERS IN
THE INSTANT SITUATION DOES NOT RELATE "TO THE INTERNAL BUSINESS OF A
LABOR ORGANIZATIONS . . . " AS SET FORTH IN SECTION 7131(B).
THE FLRA ANALYZED AND CONSTRUED SECTIONS 7131(A)(B) AND (D) IN TWO
NEGOTIABILITY CASES. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2823 AND VETERANS ADMINISTRATION REGIONAL OFFICE,
CLEVELAND, OHIO, 2 FLRA NO. 1(1979), (HEREINAFTER REFERRED TO AS THE VA
CASE); AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1692 AND HEADQUARTERS, 323RD FLYING TRAINING WING (ATC), MATHER AIR
FORCE BASE, 3 FLRA NO. 47(1980), (HEREINAFTER REFERRED TO AS THE MATHER
AIR FORCE BASE CASE). IN THESE CASES THE FLRA CONSTRUED SEC. 7131(B)'S
REFERENCE TO "INTERNAL BUSINESS OF A LABOR ORGANIZATION" RATHER NARROWLY
STATING THAT IT REFERS TO MATTERS "SOLELY RELATED TO THE INSTITUTIONAL
STRUCTURE OF A LABOR ORGANIZATION" VA CASE, SUPRA, SL. OP. PAGE 6.
HOWEVER IN DISCUSSING CONGRESSIONAL INTENT WITH RESPECT TO THE ENACTMENT
OF SEC. 7131(B) OF THE STATUTE THE AUTHORITY STATED "IN THIS REGARD,
CONGRESS INTENDED TO PROSCRIBE THE USE OF DUTY TIME FOR ONLY THOSE
ACTIVITIES RELATING TO THE UNION AS AN ORGANIZATION AND PERTAINING TO
THE OPERATION OF THAT ORGANIZATION, SUCH AS UNION BUSINESS MEETINGS,
COMMUNICATION WITH MEMBERS, CONTRACTING FOR GOODS AND SERVICES, PAYMENT
OF BILLS, AND OTHER SIMILAR AND ASSOCIATED ACTIVITIES . . . ", VA CASE,
SUPRA, SL. OP/ PAGE 5. THUS THE AUTHORITY SOMEWHAT BROADENED ITS
CONSTRUCTION OF "INTERNAL BUSINESS OF A LABOR ORGANIZATION" SO AS TO
INCLUDE "COMMUNICATION WITH MEMBERS". HOWEVER, SINCE THE UNION, IN
DISTRIBUTING THE FLIERS, WAS NOT SOLELY ATTEMPTING TO COMMUNICATE WITH
MEMBERS, THE AUTHORITY'S CONSTRUCTION WOULD NOT COVER THE CONDUCT IN
QUESTION AND THUS IT MUST BE CONCLUDED THAT THE UNION WAS NOT ENGAGING
IN "INTERNAL BUSINESS OF A LABOR ORGANIZATION" AS DEFINED IN SECTION
7131(B).
SECTION 7131(D) APPLIES TO GRANTING UNION OFFICIALS DUTY TIME FOR
ACTIVITIES NOT COVERED BY SEC. 7131(A) OR (B) AND WOULD THEREFORE APPLY
TO THE SUBJECT CONDUCT, THE DISTRIBUTING FLIERS. SECTION 7131(D)
PROVIDES THAT OFFICIAL TIME SHALL BE GRANTED "IN ANY AMOUNT THE AGENCY
AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE TO BE REASONABLE,
NECESSARY AND IN THE PUBLIC INTEREST . . . " THE CONTRACT DOES NOT
CONTAIN ANY AGREEMENT THAT THE OFFICIAL DUTY TIME SHALL BE GRANTED TO
ENGAGE IN THE CONDUCT WHICH IS THE SUBJECT OF THIS CASE AND THE RECORD
DOES NOT ESTABLISH THAT ANY SUCH AGREEMENT WAS OTHERWISE ENTERED INTO BY
THE PARTIES. FURTHER, SINCE IT IS, PURSUANT TO SECTION 7131(D), THE
SUBJECT OF COLLECTIVE BARGAINING, THE UNION CAN NOT BYPASS THE IMPASS
PROVISIONS OF THE STATUTE BY DEMANDING THAT IT IMMEDIATELY BE GRANTED
DUTY TIME TO DISTRIBUTE FLIERS AND CONTENDING THAT FAILURE TO DO SO
CONSTITUTES AN UNFAIR LABOR PRACTICE. RATHER THE STATUTE ENVISIONS, IF
SUCH A REQUEST IS MADE AND THE PARTIES CAN NOT AGREE AFTER NEGOTIATION
THAT SUCH AN IMPASS GO TO THE FEDERAL IMPASS PANEL FOR DISPOSITION. /9/
EVEN IN THE LIGHT OF THE ALLEGED DISPARATE TREATMENT /10/ SECTION
7131(D) SPECIFICALLY STATES THAT THE GRANTING OFFICIAL TIME FOR THE
CONDUCT IN QUESTION IS A MATTER FOR COLLECTIVE BARGAINING AND THUS, IN
EVENT OF AN IMPASS, TO BE DISPOSED OF BY THE FEDERAL SERVICES IMPASS
PANEL.
IN LIGHT OF THE FOREGOING THEREFORE, AND IN THE ABSENCE OF AN
AGREEMENT TO THE CONTRARY, THE UNION WAS NOT ENTITLED TO DUTY TIME TO
DISTRIBUTE THE FLIERS IN QUESTION. THIS LIMITATION PLACED BY SECTION
7131(D) ON THE USE OF OFFICIAL TIME TO DISTRIBUTE THESE FLIERS MUST
APPLY TO THE RECIPIENTS AS WELL AS THE DISTRIBUTORS. MS. HYMES
TESTIFIED, WITH RESPECT TO THE 15 OR 20 FLIERS WHICH SHE DID DISTRIBUTE
DESK-TO-DESK, THAT WHEN A WORKING EMPLOYEE RECEIVED THE FLIER MS. HYMES
EXPLAINED IT TO THE EMPLOYEE AND ANSWERED THE EMPLOYEE'S QUESTIONS AND
THAT THE EMPLOYEE THEN READ THE FLIER. THE RECIPIENT, WHO WAS AT WORK,
INTERRUPTED HIS WORK TO READ AND DISCUSS THE FLIER. THUS THE WORK OF
THE EMPLOYEE WAS DISRUPTED AND THE EMPLOYEE WAS ENGAGING IN THE VERY
CONDUCT COVERED BY SECTION 7131(D) WHILE ON DUTY STATUS, IN THE ABSENCE
OF ANY AGREEMENT PERMITTING SUCH CONDUCT. ACCORDINGLY, IT IS CONCLUDED
THAT IN THE LIGHT OF SECTION 7131(D), AND IN THE ABSENCE OF ANY
AGREEMENT, THE RESPONDENT DID NOT VIOLATE THE STATUTE BY REFUSING TO
PERMIT THE UNION TO DISTRIBUTE THE FLIERS DURING THE WORKING TIME OF THE
DISTRIBUTOR OR DURING THE WORKING TIME OF THE RECIPIENT.
HOWEVER IT IS CONCLUDED THAT RESPONDENT DID VIOLATE SECTION
7116(A)(1) OF THE STATUTE WHEN IT REFUSED THE UNION PERMISSION TO
DISTRIBUTE FLIERS IN THE PARKING AREA DURING THE DISTRIBUTOR'S NON DUTY
TIME. RESPONDENT DID NOT SUBMIT ANY EVIDENCE TO ESTABLISH THAT IT WOULD
HAVE BEEN DANGEROUS, UNDULY DISRUPTIVE, ETC. TO PERMIT DISTRIBUTION IN
THE PARKING AREA. THUS SINCE THE DISTRIBUTION, AS DISCUSSED ABOVE IS
PROTECTED CONDUCT /11/ AND IT WAS TO BE CONDUCTED DURING NON-WORK TIME
IN A NON-WORK AREA, REFUSING TO PERMIT IT CONSTITUTED UNLAWFUL
INTERFERENCE WITH PROTECTED UNION ACTIVITY AND THUS VIOLATED SECTION
7116(A)(1) OF THE STATUTE.
THE GENERAL COUNSEL URGES THAT WHEN RESPONDENT LIMITED ITS PERMISSION
TO "PUBLIC AREAS" RATHER THAN "NON-WORKING AREAS" THIS WAS TOO
RESTRICTIVE. THIS CONTENTION MUST BE REJECTED BECAUSE THE RECORD DOES
NOT ESTABLISH THAT, EXCEPT FOR THE PARKING AREAS, THERE ARE ANY
"NON-WORK AREAS" OTHER THAN THE "PUBLIC AREAS". IT IS CLEAR THAT IN THE
CONTEXT OF THE INSTANT SITUATION RESPONDENT WAS MERELY INSTRUCTING MS.
HYMES THAT EVEN IF SHE WAS IN NON-DUTY STATUS, SHE COULD NOT DISRUPT
EMPLOYEES WHILE WORKING, AND THUS HAD TO LIMIT THE DISTRIBUTION TO THE
PUBLIC AREAS. /12/
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTION
7116(A)(1) OF THE STATUTE, I RECOMMEND THE AUTHORITY ISSUE THE
FOLLOWING:
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY
RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY
HEREBY ORDERS THAT GENERAL SERVICES ADMINISTRATION SHALL:
(1) CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS
ASSURED BY THE STATUTE BY REFUSING PERMISSION TO LOCAL 1705, NATIONAL
FEDERATION OF FEDERAL
EMPLOYEES OR ANY OTHER LABOR ORGANIZATION, TO DISTRIBUTE FLIERS IN
THE EMPLOYEE PARKING LOT IN
GSA MAIN BUILDING AT 18TH & F STREETS, N.W., WASHINGTON, D.C.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) PERMIT LOCAL 1705, NATIONAL FEDERATION OF FEDERAL EMPLOYEES TO
DISTRIBUTE UNION FLIERS
IN THE EMPLOYEE PARKING LOT IN GSA MAIN BUILDING AT 18TH AND F
STREETS, N.W., WASHINGTON, D.C.
(B) POST AT ITS MAIN BUILDING, 18TH & F STREETS, N.W., WASHINGTON,
D.C., COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE
FURNISHED BY THE REGIONAL
DIRECTOR FOR REGION 3, AFTER BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE, SHALL BE POSTED BY
IT IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR FOR REGION 3, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 28, 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 EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY REFUSING PERMISSION
TO LOCAL 1705, NATIONAL FEDERATION BY OF FEDERAL EMPLOYEES, OR ANY OTHER
LABOR ORGANIZATION, TO DISTRIBUTE UNION FLIERS IN THE EMPLOYEE PARKING
LOT IN GSA MAIN BUILDING AT 18TH & F STREETS, N.W., WASHINGTON, D.C.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL PERMIT LOCAL 1705 NATIONAL FEDERATION OF FEDERAL EMPLOYEES TO
DISTRIBUTE UNION FLIERS IN THE EMPLOYEE PARKING LOT IN GSA MAIN BUILDING
AT 18TH AND F STREETS, N.W., WASHINGTON, D.C.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005
AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7131(D) READS AS FOLLOWS:
(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE,
SHALL BE GRANTED OFFICIAL TIME IN ANY AMOUNT THE AGENCY AND THE
EXCLUSIVE REPRESENTATIVE
INVOLVED AGREE TO BE REASONABLE, NECESSARY, AND IN THE PUBLIC
INTEREST.
/2/ THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE JUDGE'S
DISCUSSION AT P. 5 OF HIS DECISION REGARDING THE APPLICATION OF
DISTRIBUTION, NOT THE CONTENTS OF THE MATERIALS.
/3/ INTERNAL REVENUE SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER,
MASSACHUSETTS, 7 FLRA NO. 92(1982).
/4/ MOREOVER, THE UNION'S REQUEST DOES NOT APPEAR TO HAVE BEEN A
REQUEST TO NEGOTIATE TO EXPAND UPON ITS STATUTORY RIGHT.
/5/ COUNSEL FOR THE GENERAL COUNSEL FILED A MOTION AND BRIEF IN
SUPPORT ON DECEMBER 1, 1980 TO STRIKE CERTAIN PORTIONS OF RESPONDENTS
BRIEF BECA0SE THEY ALLEGEDLY RAISED MATTERS NOT SUPPORTED BY THE RECORD.
RESPONDENT FILED AN OPPOSITION TO THE MOTION ON DECEMBER 5, 1980. THE
MATTERS RAISED IN THE MOTION ARE DEALT WITH IN THE DISPOSITION OF THIS
CASE AND THEREFORE NEED NOT BE DEALT WITH SEPARATELY.
/6/ THE TRANSCRIPT OF HEARING IN THIS MATTER IS CORRECTED AS FOLLOWS:
(TABLE OMITTED)
/7/ THE TWO PRIOR FLYERS DEALT WITH PICKETING INFORMATION CONCERNING
A PROPOSED PAY CAP AND DEALT WITH MANAGEMENTS CONDUCT AT NEGOTIATIONS.
/8/ I NEED NOT REACH THE ISSUE OF WHETHER THE CONDUCT WOULD BE
PROTECTED IF IT WERE AIMED SOLELY AT PERSONS WHOM THE UNION COULD NOT
REPRESENT.
/9/ SECTION 7119 OF THE STATUTE.
/10/ IN ANY EVENT, WITH RESPECT TO THE ALLEGED DISPARATE TREATMENT,
THE RECORD DOES NOT ESTABLISH INSTANCES WHERE EMPLOYEES MADE DESK TO
DESK DISTRIBUTION OF NON-AGENCY SPONSORED FLIERS THROUGHOUT THE ENTIRE
AGENCY DURING WORKING HOURS. IN THIS REGARD IT SHOULD BE NOTED THAT THE
MATTERS THAT WERE APPARENTLY DISTRIBUTED BUILDING WIDE MIGHT HAVE BEEN
DISTRIBUTED BY THE INTERNAL MAIL SYSTEM. THE COLLECTIVE BARGAINING
AGREEMENT SPECIFICALLY LIMITS THE UNION'S ACCESS TO THE INTERNAL MAIL
SYSTEM.
/11/ I REJECT RESPONDENT'S CONTENTION THAT BECAUSE THE RECORD DOES
NOT ESTABLISH THAT BARGAINING UNIT EMPLOYEES PARK THEIR CARS OR FREQUENT
THE EMPLOYEES' PARKING LOT IT COULD LIMIT THE DISTRIBUTION IN THE
PARKING LOT. AS DISCUSSED ABOVE, THE CONDUCT DERIVES THE PROTECTION
FROM THE STATUTE NOT BECAUSE IT IS AIMED AT UNIT EMPLOYEES, BUT RATHER
BECAUSE IT IS AIMED PRIMARILY AT EMPLOYEES.
/12/ THE RECORD DOES NOT ESTABLISH THAT THERE WAS ANYTIME DURING THE
DAY THAT THERE WERE NOT SOME EMPLOYEES WORKING AND ON DUTY STATUS. THUS
I NEED NOT REACH THE QUESTION OF WHETHER RESPONDENT COULD HAVE
RESTRICTED DISTRIBUTION OF FLIERS DURING SUCH NON-WORK TIMES TO NON-WORK
AREAS. I NEED NOT DECIDE WHETHER THE STANDARD PRIVATE SECTOR LIMITATION
ON DISTRIBUTION TO NON WORK AREAS IN FACTORIES AND INDUSTRIAL FACILITIES
BECAUSE OF WORK DANGER, LITTER, HAZARD, ETC. E.G. STODDARD-QUIRK MFG.
CO., 138 NLRB 75(1962) AND REPUBLIC AVIATION CORP. V. NLRB, 324 U.S.
793(1945) WOULD BE APPLICABLE TO AN OFFICE AND CLERICAL OPERATION WHERE
PAPERS AND MEMORANDA ABOUND AND ONE MORE PIECE OF PAPER MIGHT NOT EVEN
BE NOTICED CF. DEPARTMENT OF NAVY, NAVAL AIR REWORK FACILITY, A/SLMR NO.
513(1975).