[ v13 p7 ]
13:0007(3)CA
The decision of the Authority follows:
13 FLRA No. 3
U.S. CUSTOMS SERVICE
REGION VIII
SAN FRANCISCO, CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-564
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practice alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision and a supporting brief, and both the General Counsel
and the Charging Party filed responses in opposition thereto.
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. /1A/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
U.S. Customs Service, Region VIII, San Francisco, California, , shall:
1. Cease and desist from:
(a) Preventing employees from displaying small, unobtrusive signs on
their desks identifying themselves as union stewards.
(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 in order to effectuate the
purposes and policies of the Federal Service Labor-Management a
Relations Statute:
(a) Allow Donna Richardson to display her "STEWARD IS IN" sign on her
desk.
(b) Post at its 211 Main Street, San Francisco, California, offices
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 Regional Commissioner of U.S. Customs Service, for Region
VIII, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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., September 15, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 prevent employees from displaying small, unobtrusive signs
on their desks identifying themselves as union stewards. WE WILL NOT in
any like or related manner interfere with, restrain, or coerce our
employees in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute. WE WILL allow Donna Richardson,
steward of the National Treasury Employees Union, to display her
"STEWARD IS IN" sign on her desk.
(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, Federal Labor
Relations Authority, Region IX, whose address is: 530 Bush Street, Room
542, San Francisco, California 94108, and whose telephone number is:
(415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-564
Carl D. Cammarata
Counsel for Respondent
Andrew R. Krakoff
Counsel for the Charging Party
Josanna Berkow
Counsel for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, Chapter 71 of Title 5 of the U.S. Code
(hereinafter referred to as the Statute), and the Rules and Regulations
issued thereunder and published in 45 Fed.Reg. 3482-3524
(1/17/80), 5 CFR 2421 et seq.
Pursuant to a Charge filed on June 30, 1980, and amended on August
25, 1980, by the National Treasury Employees Union (hereinafter, the
Union), a Complaint and Notice of Hearing was issued on September 29,
1980, by the Regional Director, Region IX, of the Federal Labor
Relations Authority (hereinafter, the Authority). Case No. 9-CA-239,
which was consolidated with this case, was later severed; and the
Complaint in that case was withdrawn.
The Complaint here alleges that on or about June 16, 1980, and
continuing to date, Respondent violated Section 7116(a)(1) of the
Statute /1/ by ordering Donna Richardson, a Union steward, to remove a
sign from her desk which stated "The Steward Is In." Respondent admits
that one of its agents committed the alleged act, but denies that the
act constitutes a statutory violation.
A hearing was held on February 5, 1981, in San Francisco, at which
the parties were afforded a full opportunity to be heard and present
evidence. Briefs were submitted by Respondent on March 12, 1981 and by
the General Counsel on March 13, 1981. A late-filed exhibit, consisting
of a diagram of the 10th and 11th floors of Respondent's office, is
marked as Joint Exhibit 1 and is received into evidence.
Upon the basis of the entire record, my observation of the work area
involved and the witnesses and their demeanor, and the briefs, the
following findings of fact, conclusions, and recommendations are made.
Findings of Fact /2/
1. Donna Richardson is a clerk-typist in the Liquidation Branch of
Respondent. She works in Respondent's office at 211 Main Street, San
Francisco. Respondent occupies the 10th and 11th floor of the building.
The Branch processes Government documents concerning the import and
export of goods and is located on the 11th floor of the building.
2. Ms. Richardson described her duties as being preparation of
internal statistical reports on production of employees, typing, mailing
and filing of correspondence, distribution of mail, answering the phone,
and directing callers to the proper authority.
3. In redescribing Ms. Richardon's duties, on December 20, 1979, Ms.
Richardson's supervisor listed her "Primary," "Secondary," and
"Tertiary" duties. (GC 2.1) The direction of callers was not listed in
any of these categories. This redescription was done at Ms.
Richardson's request, pursuant to a grievance she had filed over a bad
performance appraisal. Her position description, signed January 18,
mentions receiving personal callers and referring them to appropriate
staff members, but does not list this duty among the "Major" ones. See
GC 2.4.5.
4. The parties conducted the Judge on a tour of the 10th and 11th
floors of the 211 Main Street building. Ms. Richardson's desk is
located on the 11th floor. The reception area for Respondent's visitors
is on the 10th floor. A visitor wishing to visit someone in the
Liquidation Branch reports to the 10th floor. The receptionist calls
Ms. Richardson, who goes down to the 10th floor and escorts the visitor
to the proper liquidator. If the liquidator is out of the office, Ms.
Richardson has the visitor wait in the liquidator's office. A sign on
the 11th floor, at the elevator, states that visitors must check in at
the 10th floor receptionist desk. Other signs at the elevator point to
the various branches of Respondent which are located on the 11th floor.
The sign pointing to the Liquidation Branch does not take a visitor by
Ms. Richardson's desk. However, the Chief of the Liquidation Branch
usually makes appointments with first time visitors; and he directs
them to come by a passage that takes them past Ms. Richardson's desk.
Regular visitors to the Liquidation Branch will go directly to the
office of the employee to whom they wish to speak and, on the way, may
pass Ms. Richardson's desk, say hello to her, and ask how things are
going. On rare occasions, a visitor might ask her the whereabouts of a
certain type liquidator or a certain person; and she will point them
out. Passing her desk is a shorter way to reach certain liquidators
than following the directional sign. Ms. Richardson does not make
appointments for liquidators, and does not know when they leave the
office.
5. The Union is the exclusive bargaining representative for certain
employees in Headquarters and Regional Offices. Ms. Richardson became a
steward for the Union sometime in January. /3/ She was the first
in-house steward in Respondent's office. She verbally notified the
employees in her bargaining unit and management of her designation as
Union steward sometime around January 17.
6. The January 17 date is fixed in her mind because she sought
permission from management to post two posters, announcing a Union
meeting on January 17. Approval for the posting of one, on a 10th floor
bulletin board, was given. Posting of the one on the 11th floor was
denied because there was no bulletin board on the 11th floor.
7. Ms. Richardson then proposed to management that a bulletin board
be placed on the 11th floor. The thought also came to her, at this
time, to put a "STEWARD IS IN" sign on the center of her desk, towards
the front. She did so "to identify (her)self as a union steward " (TR
31, 53) and to enable employees to "find" her. (TR 52) The sign is an
exhibit in this proceeding. See GC 4. It is lettered by hand and
measures about one and a half by eight inches.
8. Ms. Richardson placed the sign in a nameplate holder distributed
to her through the mail. Ms. Richardson believes it was to be used to
identify who she was. She was not sure who put the holder in the mail.
9. It is the practice of Respondent to issue nametags to employees.
A majority of employees display them, in nameplate holders, on their
desks. Fifteen of the 18 employees in the Liquidation Branch display
their names, in nameplate holders. There is no regulation requiring the
display of names on desks. No one has been disciplined for failure to
display one, or for the misuse or improper use of a nameplate holder.
10. No member of the public ever complained about the sign on Ms.
Richardson's desk. One visitor did mention to Harold Lemesh, Chief of
the Liquidation Branch: "I see that you have a Union steward also." (TR
112) He was not misled, by the sign, as to what office he was visiting.
11. On occasion, Mr. Lemesh, and Walter Sherman, the Regional
Director of Classification and Value, stop at Ms. Richardson's desk and
inquire as to matters of labor-management relations.
12. Employees wishing to make an appointment to see Ms. Richardson,
as a Union steward, call her by phone, stop her in the office, or stop
by her desk. Such conversations, at her desk, take no longer than three
minutes. The employees briefly describe the problem and then return to
their work area, or go on a break, while Ms. Richardson follows
procedures established in the collective bargaining agreement in effect
between Respondent and the Union. She obtains a written pass from
management, arranges a time and place for a meeting, and informs her
supervisor and the employees' supervisor of the meeting. The meetings
never take place at her desk.
13. Ms. Richardson's desk is located by a door and a passageway. It
is in an open and congested area. There is no room for an extra chair,
and little room for a visitor to stand by her desk and converse. Her
work area provides no privacy, and is not conducive to a confidential
conversation.
14. Employees of Respondent normally talk to each other during
working hours, and visit at each other's desk. These visits range from
30 seconds to seven minutes. There are no regulations which prevent
this type of socializing.
15. Mr. Lemesh, shortly after observing the sign on Ms. Richardson's
desk, discussed it with Respondent's Labor Management Relations Branch
(LMRB). He then told Ms. Richardson, on May 14, that it was
"inappropriate," that the name holder was given to her by Respondent for
use in displaying her name, and that while she was at her desk she was a
clerk-typist, not a Union steward. (TR 105)
16. Mr. Sherman visits the Liquidation Branch about once a month.
He so testified and was corroborated by another witness. Their
testimony is credited rather than that of another witness who testified
that Mr. Sherman visits the Branch more frequently. Mr. Sherman first
became aware of Ms. Richardson's sign sometime in April, when an
employee mentioned it to him. At first, he had no reaction to it. He
assumed that his subordinate and Ms. Richardson's first-line supervisor,
Mr. Lemesh, would deal with the matter. Around June 9, someone from
Respondent's LMRB mentioned to Mr. Sherman about noticing the sign. Mr.
Sherman discussed the matter over the phone with Mr. Lemesh, who was on
sick leave, was advised by LMRB that there was no provision for it in
the Union contract, and then went to see the sign himself. He did
nothing about it until further discussions with LMRB. Based on these
discussions, he decided that the sign ought to be removed. He claims
that he was afraid the public might get the impression that Ms.
Richardson's desk was a Union station; that the 18 employees in the
Liquidation Branch who were in the bargaining unit might construe the
sign as an invitation to go there and conduct business with the steward;
and that the sign served no useful purposes, as a nearby bulletin board
identified Ms. Richardson by name and as the steward. This bulletin
board was erected on January 25 and is about 15 to 20 feet from Ms.
Richardson's desk.
17. No management official ever approved the use of Ms. Richardson's
sign. On June 16, Mr. Sherman ordered Ms. Richardson to remove the
sign. She did so.
18. Other employees maintain signs and personal items on their desks
and doors.
a. One says "Smoke Kills." (TR 27, 28) It appeared around
October. It measures about two by four inches in size. It
originally covered the employee's nameplate holder. In January
1981, it was moved into a photo holder on the desk of the
employee.
b. Another employee maintains two nameplates holders on her
desk. In one is a sign that reads "part-time big shot." (TR 30)
It is about an inch or half or an inch high. This sign is on a
desk immediately in front of Mr. Sherman's office. It was first
observed by Ms. Richardson in May, when Mr. Lemesh requested Ms.
Richardson to remove her sign.
c. Kim Colburn, one of Respondent's labor relations
specialists, has a sign covering the place where a name normally
appears outside an office. It says: "this office . . . shall
henceforth be known as Kim's place." (TR 65)
d. Around November, Ms. Richardson observed picture holders on
some employees' desks with "cartoons and things like that" in
them. (TR 30)
e. A Union steward employed at another office building of U.S.
Customs, in San Francisco, maintained a sign on the worktable next
to his desk, which was similar in size to Ms. Richardson's sign,
and which read: "THE STEWARD IS IN - 25[." It was seen by
employees. But it was not established that management ever saw or
approved of this sign. It was displayed from May or June, and
until the steward was transferred on January 17, 1981.
19. Employees who saw Ms. Richardson's sign took it to mean "we now
have a Union steward" (TR 144) and that "she (Ms. Richardson) was the
Union representative." (TR 149) One employee joined the Union when he
saw the sign.
20. Respondent's Director of Labor Relations does not consider the
agreement's language to address the issue of whether a sign such as Ms.
Richardson's may be placed on a steward's desk.
Issues Posed by the Parties
1. "Whether (Ms.) Richardson's display (of) a sign upon her desk
stating 'Steward is in' is protected activity within the meaning of 5
U.S.C. 7102." (GCBr 1)
2. "If so, whether Respondent violated 5 U.S.C. for its unlawful
interference with such protected activity absent a showing of 'special
circumstances,'" (GCGr 2)
3. "Has the General Counsel met its burden of showing a prohibition
against an employee placing a 'Steward Is In' sign on her desk is a
violation of the provisions of 5 U.S.C. 7116(a)(1) as charged in this
case?" (RBr 1)
4. "In the circumstances of this case does Section 7102 of the
Statute confer a right to an employee to display a "Steward Is In' sign
on her Government desk?" (RBr. 3)
5. "Is the use of a 'Steward Is In' sign on a Government desk an
institutional concern to be bargained for rather than an individual
employee concern." (RBr 9)
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, that Respondent violated Section 7116(a)(1) of the Statute
when its agent ordered the Union steward to remove a sign from her desk
which read "STEWARD IS IN."
The Supreme Court first established the right of an employee to wear
or display union insignia, at work, in Republic Aviation Corporation v.
National Labor Relations Board. 324 U.S. 793, 16 LRRM 620 (1945). In
Republic, three employees were discharged for wearing union steward
buttons, in the plant, after being requested to remove the insignia. At
the time of the discharges the union was active in seeking to organize
the plant; and there was no competing union in the plant. Id. at 795.
The discharges were not motivated by opposition to the union, or to
unionism. Ibid. Despite the absence of proof of any discriminatory
motive, the Supreme Court upheld the Board's ruling that the employer's
interference with the employees' right to display union insignia, absent
"unusual" or "special circumstances" (id. at 801, 804) constituted
unlawful interference, under the National Labor Relations Act, with the
statutory right, inter alia, "to assist labor organizations." See
Section 7 of the National Labor Relations Act, 29 U.S.C. 157, providing
that "(e)mployees shall have the right to self-organization, to form,
join or assist labor organizations . . . ;" and compare to Section 7102
of the Statute, which provides that "(e)ach employee shall have the
right to form, join, or assist labor organizations . . . ." Compare
also Section 7116(a)(1) of the Statute with Section 8(a)(1) of the
National Labor Relations Act-- both of which make it an unfair labor
practice for an agency "to interfere with, restrain, or coerce"
employees in the exercise of statutory rights. Like the stewards in
Republic, the steward here has been prohibited from displaying union
insignia identifying herself as a union steward.
Respondent notes that the wearing of union insignia is not, per se, a
guaranteed right, but only a protected one when there is evidence of a
purpose for displaying the insignia, and cites N.L.R.B. v. Harrod's
Club, 337 F.2d 177 (CA 9, 1964). Harrod's involved a situation where
employees of a gambling club wore their buttons on uniforms and came in
daily contact with the public. The buttons were not part of any
concerted campaign to organize the employees, or to promote collective
bargaining, or to gain better hours, wages or working conditions. For
several years Harrod's had a rule that no emblems, buttons, jewelry or
ornaments of any kind, except name pins, should be displayed on uniforms
of employees who came in contact with the public. The rule had been
strictly enforced against badges, pins and buttons showing religious,
political or social affiliations.
The instant case is distinguishable from Harrod's. There is a
purpose to the sign-- to identify and locate the Union steward in a
situation where an in-house steward is a relatively new phenomenon.
This purpose is not rendered inoperative by the fact that a bulletin
board is now available for use by the Union, not far from the steward's
desk. There are no rules against signs on desks; and, indeed,
Respondent appears to be very tolerant of the display of signs on desks
which are unrelated to the business of the office.
Respondent also cites several cases involving the right of Federal
employees to display union indicia when the employees came into constant
public contact. One case was before the Federal Labor Relations
Council, in a matter arising under Section 19(a)(1) of Executive Order
11491, which made it an unfair labor practice for a Federal agency to
"interfere with, restrain, or coerce an employee in the exercise of the
rights assured by this Order," one of which was "to form, join and
assist a labor organization . . . ." The case, AFGE, National
Immigration and Naturalization Service Council and Department of
Justice, INS, 5 FLRC No. 104 (1977) is one where the Council held that
the Immigration and Naturalization Service was not required to negotiate
with AFGE on a proposal that would have allowed uniformed, law
enforcement employees to wear a three-by-four inch AFGE patch on the
employee's shirts, because it could have been confusing to the public
they served. The decision sustained by the Council specified that it
was not foreclosing all bargaining on matters relating to law
enforcement uniforms, such as the "wearing of inconspicuous union
buttons or other indicia of union affiliation, which do not negate the
purpose for which such uniforms are required." 5 FLRC at 111. I find no
significant similarity between this case and the instant one. Ms.
Richardson is not a uniformed employee which the public, for safety
reasons, needs to identify as a law enforcement officer. Her union
"indicia" was of a much less conspicuous type, as to which the question
of negotiability was expressly reserved in the Council's decision.
The other case cited by Respondent and involving Federal employees
wearing union indicia, while in contact with the public, is United
States Army Support Command, Fort Shafter, Hawaii, 3 FLRA No. 12 (1980).
In the Fort Shafter case, the Authority held that there was no right to
wear conspicuous union insignia on the uniforms of a water and buffet
cook serving the public in a hotel restaurant operated on an Army base.
The union and the employer had agreed that uniformed employees could not
change their uniforms without the consent of the employer, or wear such
items as flowers, scarves, or gaudy jewelry without the consent of the
employer. The policy of not allowing changes to uniforms had been
enforced before the wearing of union insignia began. The union indicia
were sometimes worn in place of the hotel name tag which some employees,
including the waiter, but not the cook, were required to display on
their uniforms so that they might be readily identified. Some customers
complained about the wearing of union indicia, and were confused as to
whether the employees were working for the hotel or the union. The
hotel had a narrow profit margin and had to be self-sustaining to stay
in business. Its clientele was limited to military personnel, their
dependents, and their guests. The Army allowed the badges to be worn
when the public was not being served.
The instant case is also distinguishable from Fort Shafter, in
several significant respects. Here, the employee has far fewer public
contacts. Respondent's office is not a profit-making venture dependent
upon the goodwill of customers. Nor are visitors to the office likely
to be confused by the union indicia at issue. It is not an
official-looking sign. The desk is located in a work area too small,
open, and congested to even suggest that employees might use the area
for the conduct of union business. There is no rule or policy against
use of non-official signs in work areas.
Davidson-Paxton Co., Div. of R. H. Macy & Co., 462 F.2d 364 (CA5,
1972) is another case cited by Respondent for the proposition that the
possibility of offending customers is an immediate and pressing concern
to service establishments and must be considered in determining whether
a prohibition against the wearing of union insignia constitutes an
unfair labor practice. See RBr 6. Davidson-Paxton is a retail store
chain which required its employees, who were in contact with customers,
to remove large yellow union campaign buttons. At the time, ;
Davidson-Paxton had a dress code providing for the use of good taste and
judgment, fashionable attire, and prohibitions against anything that
might offend or be controversial to a customer. The code had been
enforced. Also, there was some animosity between union and anti-union
factions at the store; and the manner in which the buttons had been
distributed had added to employee tension. Thus, Davidson-Paxton had a
justifiable fear that the use of the button might lead to union conflict
on the sales floor. The size, color and language on the button ("Vote
Yes Retail Clerks International Association, AFL-CIO") was also regarded
as more provocative in nature than small, membership buttons, the
wearing of which has been held to be a protected activity, in other
cases. See 462 F.2d at 365, 369. The Court also acknowledged, as an
important consideration, the store's anxiety over offending customers.
It emphasized that "this decision is restricted to the facts of this
case." Id. at 364. The facts in the instant case do not call for a
replay of the decision reached in Davidson-Paxton, for the reasons above
articulated as to Fort Shafter.
Respondent declares that there are "critical differences" between
wearing union indicia, on a person's apparel or uniform, and placing it
on Government equipment or property. (RBr2) The differences argued are
that: (1) a desk is tool used by Respondent to accomplish its mission
and that an employer has a right to control and utilize its property, as
it deems appropriate; (2) the sign identified the Union steward's
location as a place where the Union, not Respondent conducts business;
and (3) the sign might invite employees to transact Union business
there. See RBr 6-8. As to the first difference, the sign at issue in
no way hinders the use by Respondent of its property. It is small and
occupies an insignificant portion of the desk, leaving ample room for
the conduct of Respondent's business. As to the second and third
differences, as already discussed, the desk is in a work area that is
too open and lacking in privacy to mislead any rational person into
believing that Union business, between bargaining-unit employees, would
be conducted there. Of course, management officials did stop by the
Union steward's desk to discuss Union matters; but they clearly
understood the work area was that of Respondent, not the Union. This
case may be likened, in some respects, to the one in which it was held
that the employer violated the Labor Management Relations Act by
prohibiting employees from affixing union authorization cards to lockers
while permitting nonunion material to remain affixed. See Taylor-Dunn
Mfg. Co., 252 NLRB No. 118, 105 LRRM 1548, 1550 (1980).
The record made in this case does not reveal any of the "special
circumstances" which call for nonuse of union insignia, such as safety
considerations, as in Andrews Wire Corp., 189 NLRB No. 24, 76 LRRM 1568
(1971), or their being a cause for disruption in an environment with a
previous history of animosity between employees regarding unionization,
or rival labor organizations, as in United Aircraft Corp., 134 NLRB No.
15, 49 LRRM 1384 (1961), or serious jeopardization of the quality of the
employer's product, as in Campbell Soup Co., 159 NLRB No. 18, 62 LRRM
1352 (1966), or a direct and constant contact with the public so as to
adversely affect the employer's business, as in Consolidated Casinos
Corp., 164 NLRB No. 132, 65 LRRM 1300 (1967) and cases already
discussed.
Respondent's final argument is that the sign at issue was an
institutional concern to be bargained for, rather than an individual
employee concern. See RBr 9-11. Respondent notes that a union steward
fulfills an institutional role; that the use of agency facilities is an
appropriate subject for bargaining; and that the agreement it has
entered into with the Union provides means for communications between
Union officials an d employees and the use of certain Government
facilities, such as meeting rooms, file cabinets, bulletin board space.
Next, Respondent argues that since the process of communications between
the Union and employees and the use of agency facilities are
bargainable, these are not matters protected by Section 7102 of the
Statute. RBr 11. No authority, other than the Statute is cited to
support this argument. It is ingenuous; but it does not comport with
the plain statutory language, that an employee means "an individual--
(A) employed in an agency" (Section 7103(A)(2)) and that "(e)ach
employee shall have the right to . . . assist any labor organization . .
. and each employee shall be protected in the exercise of such right."
Section 7102. Ms. Richardson was assisting the Union by informing
bargaining-unit employees at 211 Main Street that an in-house steward
was located on the 11th floor and that she was that steward.
The remedy
The General Counsel requests inter alia, an order be issued that
Respondent post a notice to employees, apparently throughout the San
Francisco Region, that it "will not prevent employees from displaying
unobtrusive signs on their desks identifying their membership or support
for the National Treasury Employees Union." GCBr 15 and Attachment A.
The proposed order is somewhat broader than is justified by the record
made in this proceeding.
There is no evidence that Respondent has prevented employees from
displaying Union membership signs on their desks. The evidence does
show that in at least one other office of the San Francisco Region, a
sign similar to Ms. Richardson's was not ordered to be removed. See
finding 18e, above. Since employees saw the sign, it is probably that
management saw it also, and just did not react to it as did the
officials in the 211 Main Street office. Also, it was not established
just what other offices Respondent operates, or their character, so it
cannot be decided whether special circumstances might exist, at other
locations, which might warrant a prohibition against the use of sign
similar to the one at issue here. Therefore, the order to post will be
limited to Respondent's 211 Main Street office and will concern only
signs identifying union stewards.
Ultimate Finding and Order
Respondent has violated Section 7116(a)(1) of the Federal Service
Labor-Management Relations Statute.
Accordingly, and pursuant to 5 U.S.C. 7105(g)(3) and 7118(A)(7)(A)
and (D), the Federal Labor Relations Authority hereby orders that
Respondent, U.S. Customs Service, Region VIII shall:
1. Cease and desist from:
(a) Preventing employees from displaying small, unobtrusive
signs on their desks identifying themselves as union stewards;
and
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of rights
protected by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to carry out the
policies and practices of the Federal Service Labor-Management Relations
Statute:
(a) Allow Donna Richardson to display her "STEWARD IS IN" sign
on her desk; and
(b) Post at its 211 Main Street, San Francisco, CA, offices
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of the forms,
they shall be signed by the Regional Commissioner of U.S. Customs
Service, for Region VIII, and 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. The Regional Commissioner shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director, Region IX, of 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.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: May 14, 1981
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO 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 prevent employees from displaying small, unobtrusive signs
on their desks identifying themselves as union stewards. WE WILL NOT in
any like or related manner interfere with the rights of our employees
under the Federal Service Labor-Management Relations Statute. WE WILL
allow Donna Richardson, steward of the National Treasury Employees
Union, to display her "STEWARD IS IN" sign on her desk.
(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 for the Federal
Labor Relations Authority whose address is: Federal Labor Relations
Authority, Region IX, Room 11408, P.O. Box 36016, 450 Golden Gate
Avenue, San Francisco, California 94102.
--------------- FOOTNOTES$ ---------------
/1A/ In this regard, the Authority specifically notes the lack of
evidence to sustain an allegation that the sign, itself, resulted in any
internal union business being conducted while employees were in a duty
status. See section 7131(b) of the Statute.
/1/ Section 7116(a)(1) makes it an unfair labor practice for an
agency "to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter." One such
"right" is the "right to form, join, or assist any labor organization .
. . ." Section 7102.
/2/ References to the record will be as follows. "TR" refers to the
transcript. "Jt" refers to the Joint Exhibit. "GC" refers to the
exhibits of the General Counsel. "R" refers to the exhibits of the
Respondent. A multipage exhibit will be referenced by the exhibit
number followed by the page number. "GCBr" refers to the brief of the
General Counsel. "RBr" refers to the brief of the Respondent. All
dates referenced are in 1980, unless otherwise specified.
/3/ At one point she testified she was informed of her appointment by
the president of Chapter 155 of the Union "on or about January 3." (TR
46) Later, she testified that she became the Union steward "on or about
. . . January 14 . . . ." (TR 56) Management was formally notified of
her designation as Steward on January 25.