[ v11 p77 ]
11:0077(24)CA
The decision of the Authority follows:
11 FLRA No. 24
DEPARTMENT OF LABOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
BRANCH OF SPECIAL CLAIMS
Respondent
and
STEPHANIE E. GARLAND
Charging Party
Case No. 3-CA-2180
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Exceptions to the Judge's Decision were filed by the Respondent, to the
effect that the violations found by the Judge were de minimus.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations.
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 Department of Labor, Office of Workers'
Compensation Programs, Branch of Special Claims, shall:
1. Cease and desist from:
(a) Removing and prohibiting the posting of union notices on employee
bulletin boards, where there is a past practice permitting such posting.
(b) Informing newly appointed stewards that they were not, and could
not act as, stewards until their supervisor had been notified of their
appointment by the agency's labor-management relations office.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their 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) Post at its facilities at 711 14th Street, N.W., Washington, D.C.
copies of the attached Notice on forms to be furnished by the Authority.
Upon receipt of such forms, they shall be signed by the Assistant
Deputy Commissioner, Branch of Special Claims, or his designee, and
shall be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(b) 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.
Issued, Washington, D.C., January 20, 1983
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 remove and prohibit the posting of union notices on
employee bulletin boards, where there is a past practice permitting such
posting.
WE WILL NOT inform newly appointed stewards that they are not, and
cannot act as, stewards until their supervisor had been notified of
their appointment by the agency's labor-management relations office.
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
Federal Service Labor-Management Relations Statute.
(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 its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority whose address
is: 1111 18th Street, Rm. 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Ronald S. Robins, Esquire
For the Respondent
Donna M. Ditullio, Esquire
For the General Counsel
Before: Randolph D. Mason
Administrative Law Judge
DECISION
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., as a result of
an unfair labor practice complaint filed on July 28, 1981, by the Acting
Regional Director, Region III, Federal Labor Relations Authority,
against the Department of Labor, Office of Workers' Compensation
Programs, Branch of Special Claims ("respondent").
The complaint alleges three separate violations of Sec. 7116(a)(1) of
the Statute since respondent allegedly (1) removed a union notice from
an employee bulletin board, (2) told employees not to post such notices
and directed the removal of a duplicate union notice from the board, and
(3) told employees not to assist or act on behalf of the union.
Respondent denies that any violation of the Statute occurred.
A hearing was held in this matter before the undersigned in
Washington, D.C., on September 22, 1981. All parties were afforded full
opportunity to be heard, adduce relevant evidence, and examine and
cross-examine witnesses. Counsel for the General Counsel made an oral
argument and respondent filed a brief; all arguments have been duly
considered. Based on the entire record herein, including my observation
of the witnesses and their demeanor, the exhibits, and other relevant
evidence adduced at the hearing, I make the following findings of fact,
conclusions of law, and recommended order.
Findings of Fact
At all times material herein, the respondent, Office of Workers'
Compensation, Branch of Special Claims, was located at 711 14th Street,
N.W., Washington, D.C., ("711 building"). Prior to September 30, 1980,
Local 12 of the American Federation Of government Employees, the
employees' exclusive representative, did not have any stewards
physically located in that building.
During September of 1980, union members at the 711 building were duly
notified that nominations for union steward and alternate steward
positions should be submitted to the election committee. Thereafter,
the following nominations were submitted: Maureen Gorman, steward;
Joyce Rumore, first alternate steward; and Stephanie Garland, second
alternate steward. The nominations were uncontested, and the union
appointed these individuals to their positions on or about October 1,
1980.
On the evening of October 1, Stephanie Garland posted the following
handwritten notice on the employees' bulletin board:
As a result of uncontested union nominations, the following
people have been appointed to union positions:
Maureen Gorman-- Union Steward
Joyce Rumore-- 1st Alternate
Stephanie Garland-- 2nd Alternate
The above bulletin board was the only one located in the 711
building. It was typically used for employees' personal notices, cards,
"thank-you" notes, carpool requests, and job announcements. During the
summer and fall of 1980, the following union notices were also posted on
that board without any objection by respondent: a notice of a speech by
the union president, and two notices relating to meetings for the
purpose of nominating union stewards at the 711 building.
At about 7:30 a.m. on October 2, the Chief of the Branch of Special
Claims, Richard Larson, removed Garland's union notice concerning newly
appointed stewards from the bulletin board. Garland, who was present at
the time, protested the removal of the notice. Larson was visibly upset
and angry and told Garland that he would see her later. About a half
hour later Garland posted a duplicate of the original notice on the
bulletin board.
At 8:30 a.m. on October 2, Larson called Garland, Gorman and Rumore
into his office. Another supervisor was also present at the meeting.
Larson stated that he had heard that they had put the notice back up on
the bulletin board. He was clearly upset. He instructed them to take
it down and told them not to put up any more signs notifying people of
their appointment as stewards. He also said that they could not
participate in union activities until he was notified by the
respondent's labor-management relations office that they had been
appointed as stewards. Although it at first appeared that he was saying
that they could not participate in any union activities in any capacity,
it became clear during the conversation that he meant to say that they
were not stewards, and could not act as such, until he was duly notified
of their appointments. /1/
After the meeting, the stewards removed the notice from the board.
Later that day at 2:45 p.m., after being advised by the union that they
had a right to post such notices, they re-posted a copy of the notice on
the bulletin board. Larson also removed this copy, but put the notice
back up on the board about 15 minutes later.
The collective bargaining agreement between respondent and the union
provided in the "Official Time" article that the union would provide the
Department of Labor with a complete list of officers, stewards, and
other representatives within 30 days after each general election; it
also provided that within the first five days of each month, the
Department would be informed by the union of any change in the list that
occurred during the preceding month. Although it is arguable that the
contract denies a steward the right to official time for representation
purposes until management is duly notified of the steward's appointment,
the contract clearly does not preclude the performance of such duties
while not on official time.
Conclusions of Law
The first issues for consideration arise out of Larson's removal of a
union notice from the employees bulletin board and his subsequent
instruction to the new union stewards to remove a similar notice and to
refrain from posting any similar notices in the future. The notice in
question had informed unit employees of the recent appointment of the
three new stewards. The General Counsel takes the position that
respondent's actions violated Sec. 7116(a)(1) because they interfered
with, restrained, or coerced employees in the exercise of rights
protected by the Statute. Section 7102(a) gives each employee the right
to form, join, or assist any labor organization, and this specifically
includes the right to act as a union representative. For the reasons
set forth below I agree with the General Counsel.
It has been held that an employer may not remove a union newsletter
from the employer's bulletin board if the employees and the union had
been permitted to post personal and official union notices. Container
Corp. of America, 244 NLRB No. 53, 102 LRRM 1162 (1979). There is no
reason why this rule should not be applied in the public sector as long
as the posted material meets the agency's established standards of
propriety. The posting in question was a simple communication to
bargaining unit employees announcing the recent appointment of one
steward and two alternate stewards. By removing and prohibiting the
future posting of such notices, respondent directly interfered with the
stewards' right to communicate with and represent employees in the unit.
Further, respondent's action interfered with the right of unit
employees to seek the assistance of their union representatives.
Respondent argues that the respondent's action resulted in only
minimal impact and did not have a chilling effect on unit employees. In
the first place, a violation of Sec. 7116(a)(1) will be found even if
respondent's action merely "tends" to produce a chilling effect on the
exercise of protected activity. Department of the Army, Fort Bragg
Schools, 3 FLRA No. 57 (1980). In the instant case, the stewards
removed their notice from the board as soon as they were told by Larson
to do so. The fact that they replaced the notice a few hours later upon
the advice of a higher union official does not detract from the fact
that respondent's action tended to have a chilling effect.
Respondent also appears to be arguing that any violation that may
have occurred was de minimus in nature. In this regard, where a
supervisor violates the Statute but immediately rectifies his error, the
Authority has found that it would not effectuate the purposes of the
Statute to find a violation and issue a remedial order. Norfolk Naval
Shipyard, Norfolk, Virginia, 4 FLRA No. 91 (1980). In the instant case,
Larson did replace the union's notice on the bulletin board about 6 1/2
hours after initially demanding its removal and forbidding any future
posting of such notices. But this re-posting by Larson only partially
rectified his error. There is no evidence that he notified the union
and the employees that other union postings would be permitted;
furthermore, it does not even appear that he publicized the fact that
he, rather than the union, had replaced the notice on the board. Since
Larson only partially rectified his error, I conclude and hold that
respondent violated Sec. 7116(a)(1) of the Statute and that a remedial
order would be appropriate.
The final issue for consideration is whether Larson told the three
new stewards not to assist or act on behalf of the union. There is no
question that such a statement, if made to employees, would constitute a
violation of Sec. 7116(a)(1). I find that the statement actually made
was not as broad as the one alleged by the charging party; however, the
statements, when taken in their proper context, were still violative of
the Statute. I have found that Larson told Garland, Gorman, and Rumore
that they were not stewards, and could not act as such, until he was
officially notified of their appointments by respondent's
labor-management relations office. /2/ The fact that he had not yet
been notified did not mean that they were not, or could not act as,
stewards. The most that could be argued under the collective bargaining
agreement was that they could not be entitled to take official time for
such activities until Larson was notified by the agency. Thus, prior to
such notification they could have at least performed representational
functions, e.g., while on annual leave, at lunch time, and after regular
working hours. Respondent's statement clearly interfered with the
stewards' right under Sec. 7102(a) to act as a union representative, and
violated Sec. 7116(a)(1) of the Statute.
In view of the foregoing conclusions I recommend that the Authority
adopt the following order:
ORDER
Pursuant to 5 U.S.C. 7118(a)(7) and Sec. 2423.26 of the Authority's
Rules and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby
ORDERED that the Department of Labor, Office of Workers' Compensation
Programs, Branch of Special Claims, shall:
1. Cease and desist from:
(a) Removing and prohibiting the posting of union notices on
employee bulletin boards.
(b) Stating to newly appointed stewards that they were not, and
could not act as, stewards until their supervisor had been
notified of their appointment by the agency's labor-management
relations office.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute, 5 U.S.C. 7101, et seq.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities at 711 14th Street, N.W.,
Washington, D.C. 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 Assistant Deputy Commissioner,
Branch of Special Claims, 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. He shall take reasonable steps
to insure that such notices are not altered, defaced, or covered
by any other material.
(b) Pursuant to Sec. 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, Suite
700, 1111 18th Street, N.W., Washington, D.C. 20036.
RANDOLPH D. MASON
Administrative Law Judge
Dated: December 31, 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 remove and prohibit the posting of union notices on
employee bulletin boards.
WE WILL NOT tell newly appointed stewards that they are not, and
cannot act as, stewards until their supervisor has been notified of
their appointment by the agency's labor-management relations office.
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
Federal Service Labor-Management Relations Statute.
(Agency of 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 question concerning this notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: Suite 700, 1111 18th Street, N.W., Washington, D.C. 20036 and
whose telephone number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ Respondent was not formally notified of these appointments until
October 23, 1980.
/2/ I have resolved certain conflicts in testimony in favor of
Gorman, who was the most convincing and credible witness; Larson
admittedly had difficulty remembering the events of October 2.