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13:0409(69)CA
The decision of the Authority follows:
13 FLRA No. 69
SOCIAL SECURITY ADMINISTRATION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
Charging Party
Case No. 3-CA-1481
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
parties' stipulation of facts, /1/ accompanying exhibits, and the
parties' contentions, /2/ the Authority finds:
The complaint alleges that the Respondent, Social Security
Administration, interfered with, restrained and coerced its employees in
the exercise of their rights guaranteed by section 7102 of the Federal
Service Labor-Management Relations Statute (the Statute, /3/ in
violation of section 7116(a)(1), /4/ by prohibiting employees from
showing a film on behalf of the Charging Party, American Federation of
Government Employees, Local 1923, AFL-CIO (the Union), in working areas
during non-work time as part of a membership recruitment effort. The
Union has been recognized as the exclusive representative for a unit of
employees at the Activity since 1963.
The stipulated record shows that on August 18, 1980, Richard Levine,
a Union organizer employed by the Respondent, sent a letter to the
Respondent requesting permission to show a twelve minute film strip to
employees in work areas of Respondent's facility during the employees'
non-work time, as part of the Union's membership drive. Solicitation
for Union membership and distribution of Union literature had previously
occurred, as a matter of practice, in work areas during non-work time;
although management was aware of this practice, it never tried to
prohibit it.
In subsequent conversations during August and September of 1980
between representatives of the Union and representatives of management
about the request to show the film strip, the Union gave assurances to
management that the film equipment was small and would not disrupt
employees who were working in other areas.
The Union proposed to show the film to small groups of employees by
work unit during their common lunch period, which is non-work time, in
their work area. In most cases where the film would be shown, no
employees would be working in adjacent areas. Virtually all work areas
are laid out in an open space configuration separated by file cabinets.
The Union offered to show the film on a trial basis with a management
labor relations representative present, and, if it proved disruptive, to
stop the film. The film strip with accompanying sound track was
previewed by two staff members of the Division of Labor Relations on
September 2, 1980.
During the latter part of August or early September 1980, the
Respondent, through its agent Larry Massanari, denied the Union
permission to show the film strip in work areas of Respondent's
facility, taking the position that the film could disrupt employees in
adjacent work areas during their work time. The Respondent offered to
make available to the Union other facilities, such as conference rooms,
for the Union to show its film strip with accompanying sound track. The
Union refused, stating that it had a right to show the film in work
areas during non-work time, since other forms of solicitation, such as
bond drives, Combined Federal Campaign, blood donor programs,
collections for the Employees Activity Association, Inc., and
collections for parties, lunches, and dinners had occurred with
management's knowledge in work areas both during work time and non-work
time. Many employees eat lunch in their work areas as opposed to the
cafeteria, and the Union stressed that the film would have a greater
audience if it were shown in the work area, as employees who were not
Union members would be reluctant to leave their work areas while eating
lunch to attend a Union function in another room.
The General Counsel asserts that a policy or rule which prohibits
solicitation by employees in work areas, during non-work time, in the
absence of special circumstances, constitutes an interference with
employee rights under section 7102 in violation of section 7116(a)(1) of
the Statute. The General Counsel alleges that, by prohibiting the
showing of the film for the purpose of Union membership recruitment
during non-work time in work areas, the Respondent interfered with its
employees' right to solicit in violation of the Statute.
The Respondent's primary position is that the issue herein involves
not the unit employees' right to solicit for Union membership but rather
the use of government facilities, and thus is a matter of contract
interpretation since Article 7 of the parties' negotiated agreement
relates to such use. The record shows only that Article 7 of the
agreement refers to the use of agency facilities for meetings of the
Union and not to union solicitation. Absent a clear and unmistakable
waiver, a party will not be deemed to have given up a statutory right,
such as the unit employees' right to solicit involved herein. Veterans
Administration Regional Office, Denver, Colorado, 7 FLRA No. 100 (1981);
Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100
(1981); Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2 (1981).
The Respondent alternatively contends that, if the instant case
involves the employees' right to solicit, the Union's request to show
the film constituted a special circumstance justifying the Respondent's
denial of that request.
The solicitation of union membership is a right protected under
section 7102 of the Statute which guarantees employees "the right to
form, join or assist any labor organization, or to refrain from such
activity . . . ," although section 7131(b) of the Statute specifically
requires that such "solicitation of membership . . . be performed during
the time the employee is in a nonduty status." Accordingly, the
Authority has previously concluded that management's conduct in
maintaining a rule prohibiting employees from soliciting membership
during their breaks (i.e., while in a "nonduty status") and disciplining
an employee for violating such rule violated the Statute. See Oklahoma
City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
FLRA No. 32 (1981). The Authority further concludes that an employee's
protected right to solicit union membership while in a nonduty status
may be exercised in a work area where the employees being solicited also
are in a nonduty status, absent any disruption of the activity's
operations or any other unusual circumstances.
In the circumstances herein, there is no indication that showing the
film during the employees' non-work time (i.e., their lunch period) for
the purpose of soliciting Union membership would have interfered with
the work of the Activity. Moreover, the record reveals that employees
regularly eat, listen to radios, converse among themselves and play
cards during non-work time in the area where the film would be shown,
and that solicitation for Union membership as well as distribution of
Union literature in work areas during non-work time has been permitted
by the Respondent as a matter of course. Thus, there is no showing of a
likelihood of disruption of agency operations. It is concluded,
therefore, that the Respondent's prohibition of the requested activity
constituted unlawful interference with protected union activity in
violation of section 7116(a)(1) of the Statute.
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 Social Security Administration,
Baltimore, Maryland, 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
prohibiting employees from showing a film on behalf of Local 1923,
American Federation of Government Employees, AFL-CIO, the employees'
exclusive representative, for the purpose of soliciting Union membership
during non-work time in work areas where employees are on a lunch break
and there is no disruption of work.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their 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) Permit employees to show a film on behalf of Local 1923, American
Federation of Government Employees, AFL-CIO, the employees' exclusive
representative, for the purpose of soliciting Union membership during
non-work time in work areas where employees are on a lunch break and
there is no disruption of work.
(b) Post at its facility at 6401 Security Boulevard, Baltimore,
Maryland, 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 Commissioner, Social Security Administration, 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 said Notices are not
altered, defaced, or covered by any other material.
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., November 17, 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 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 prohibiting employees from
showing a film on behalf of Local 1923, American Federation of
Government Employees, AFL-CIO, the employees' exclusive representative,
for the purpose of soliciting Union membership during non-work time in
work areas where employees are on a lunch break and there is no
disruption of work. WE WILL NOT in any like or related manner 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. WE WILL permit employees to show a film on behalf of
Local 1923, American Federation of Government Employees, AFL-CIO, the
employees' exclusive representative, for the purpose of soliciting Union
membership during non-work time in areas where employees are on a lunch
break and there is no disruption of work.
(Activity)
Dated: . . . By: (Signature) (Title) 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: P.O. Box 33758,
Washington, D.C. 2033-0758 and whose telephone number is: (202)
653-8452.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel has moved to strike several statements in the
Respondent's brief on the grounds that those statements directly
contradict the stipulation. In any matter submitted directly to the
Authority for decision based upon a stipulated set of facts, the
Authority will consider only the facts contained in the stipulation.
Accordingly, the General Counsel's motion is denied. See General
Services Administration, 6 FLRA No. 77 (1981).
/2/ The Union's brief was untimely filed and therefore has not been
considered.
/3/ Section 7102 provides:
Sec. 7102. Employees' rights
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.
/4/ Section 7116(a)(1) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce an employee in the
exercise by the employee of any right under this chapter(.)