[ v26 p311 ]
26:0311(40)CA
The decision of the Authority follows:
26 FLRA No. 40
DEPARTMENT OF COMMERCE
BUREAU OF THE CENSUS
Respondent
and
EDWARD HANLON
Charging Party/Individual
Case No. 3-CA-60048
DECISION AND ORDER
The Administrative Law Judge, issued the attached Decision in the
above-entitled proceeding, finding that the Respondent, Department of
Commerce, Bureau of the Census, had engaged in certain unfair labor
practices 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
the General Counsel filed an opposition to the exceptions.
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), we have reviewed the rulings of the Judge made at
the hearing and find that no prejudicial error was committed. The
rulings are affirmed. Upon consideration of the Judge's decision and
the entire record, we adopt the Judge's findings, conclusions, and
recommended Order.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Department of Commerce,
Bureau of the Census, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its employees in
the exercise of rights guaranteed in section 7102 of the Statute,
by prohibiting employees from soliciting membership on behalf of
National Treasury Employees Union, or any other labor
organization, during non-work time in work areas where 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 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) Permit Edward Hanlon and other employees to solicit
membership on behalf of National Treasury Employees Union, or any
other labor organization, during non-work times in work areas
where there is no disruption of work.
(b) Post at its Suitland Federal Center facilities 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 Director, Bureau of the Census 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 ensure 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 III, 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., March 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, 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 rights guaranteed in section 7102 of the Statute, by
prohibiting employees from soliciting membership on behalf of National
Treasury Employees Union, or any other labor organization, during
non-work time in work areas where there is no disruption of work.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL permit Edward Hanlon and other employees to solicit
membership on behalf of National Treasury Employees Union, or any other
labor organization, during non-work times in work areas where 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 3, whose address is: 1111 - 18th Street, NW., 7th
Floor, P.O. Box 33758, Washington, DC 20033-0758 and whose telephone
number is: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-60048
DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS
Respondent
and
EDWARD HANLON
Charging Party
C. J. Schmidt, Esq.
Paul Bath
For the Respondent
Edward Hanlon
For the Charging Party
Peter A. Sutton, Esq.
David B. Scholl, Esq.
For the General Counsel of FLRA
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.
Section 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the
Statute) and the Rules and Regulations of the Federal Labor Relations
Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
Pursuant to a Charge filed on November 1, 1985 by Edward Hanlon,
hereinafter called Hanlon, against Department of Commerce, Bureau of the
Census, hereinafter called Census, the General Counsel of FLRA, by the
Director of Region III, issued the Complaint and Notice of Hearing
herein on December 19, 1985 alleging that Census violated Section
7116(a)(1) of the Statute by promulgating a rule forbidding employees
from engaging in solicitation on behalf of a labor organization in work
areas during non-work time. Census filed a timely answer denying it had
violated the Statute.
A hearing in this matter was conducted before the undersigned in
Washington, D.C. Census, Hanlon and General Counsel of the FLRA were
represented and afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence and to argue orally.
Briefs were filed and have been fully considered.
Based upon the entire record in this matter, /1/ my observation of
the witnesses and their demeanor, and my evaluation of the record I make
the following:
Findings of Fact
Census maintains its headquarters in Suitland, Maryland where it
employs about 3000 employees in a collective bargaining unit represented
by Local 2782, American Federation of Government Employees, AFL-CIO,
hereinafter called Local 2782 AFGE.
Local 2782 AFGE and Census negotiated a collective bargaining
agreement which expires on July 1987. The collective bargaining
agreement provides employees with the option of working under one of two
alternate work schedules. Under either option, employees start work no
earlier than 7:00 a.m. and stop work no later than 6:00 p.m. All unit
employees are authorized to take a fifteen minute break in mid-morning
and mid-afternoon /2/ and a lunch period of no less than thirty minutes
between 11:00 a.m. and 2:00 p.m. These alternate schedules have been in
effect since 1983.
Many unit employees work in open bays of about 500 square feet.
Usually 4 unit employees work in each bay. Some unit employees work in
private offices, as do supervisors and managers.
Hanlon, a unit employee, began campaigning for National Treasury
Employees Union (NTEU) in March 1985. In a memorandum dated September
4, 1985, to Colleen Woodward, Census' Labor Relations Officer, Hanlon
stated that he interpreted a prior memorandum from Woodward to mean he
was forbidden from solicitation and distribution of literature on behalf
of a labor organization in work areas when the employees involved were
in non-work status. By a memorandum dated September 10, 1985, Woodward
advised Hanlon that she would investigate the issues raised by Hanlon.
In a memorandum dated October 9, 1985 Woodward advised Hanlon, inter
alia, that because there are no common lunch breaks or rest periods and
someone entering a work area could not determine who is in duty status,
Census could not grant Hanlon's request to distribute union literature
in the work areas during duty hours. Hanlon was also told that orally
by Woodward on October 9, 1985.
Hanlon sent a memorandum dated October 13, 1985, to Woodward. This
memorandum was addressed to Census' "Division and Office Chiefs" but was
initially sent to Woodward and was never distributed to Census' Division
and Office Chiefs. In the memorandum Hanlon stated, inter alia, "This
is to inform you that 'Local 2782 Members for NTEU' will be soliciting
in your work areas before work, after work, during rest periods and
during lunch. We will be discussing unions and union affiliation with
employees who are in non-work status and we may hand out union
authorization cards, membership forms or representational petitions for
signatures. We will be very careful not to disturb any employees who
may be working in your division."
Woodward, in a memorandum dated October 17, 1985 advised Hanlon that
he had not requested nor received authorization "to solicit in work
areas in Buildings 3 and 4 . . . . "
On October 17, 1985, Hanlon wrote a note to Woodward in the bottom of
Woodward's October 17 memorandum, stating that he had sought
authorization "to solicit in the work areas of FOB #3 and #4." and that
because it was a statutory right he didn't need her approval and that he
and his associates intend to solicit in work areas of all Census areas.
Woodward sent Hanlon a memorandum dated October 28, 1985, and
entitled "Clarification of Solicitation Activities" which stated:
In your October 17, 1985 reply to my memorandum of the same
date, you claimed the right to enter the Bureau's work areas in
order to engage in union solicitation activities with employees
during their non-work times.
The Bureau recognizes the right of employees to freely use
their non-work time and does not interfere with how employees use
such time in their work areas unless the work of others is
disrupted. However, the Bureau also recognizes the need to
maintain its work environment in a reasonably secure
disruption-free manner.
Since the Bureau has no common periods of employee non-work
times, i.e., lunch, rest, and starting/ending periods, someone
entering the work area cannot determine who is or is not in duty
status without questioning employees and hence disturbing the work
environment. For you and a number of individuals to enter work
areas seeking out employees who may be in a non-duty status to
solicit for labor purposes is inherently disruptive of the work
site. For this reason, I am unable to grant approval for your
entry into the work areas to engage in solicitation activities as
described in your October 13, 1985 and October 17, 1985
correspondences.
I am reminding you of the previous authorizations to
solicit/distribute that you have received from me. The Bureau has
provided you with various, alternate, viable avenues of
communication that stikes a reasonable balance between your
exercise of Section 7102 rights and the Agency's right to maintain
an orderly work place. Our actions are in accordance with Section
7101(b) which requires us to interpret the statute in a manner
consistent with an effective and efficient government.
Paul Bath, Census' Acting Labor Relations Officer sent a memorandum
to Hanlon dated December 6, 1985, which stated, in pertinent part,
2. Solicitation in work areas during non-duty times
Where we corroborate your assessment that a work area has
standard starting and quitting times, lunch break, and/or break
times such that the entire work unit is in non-duty status at the
same time, we will authorize you to solicit in the work area
during those non-duty times. To use this authorization, notify
this office of areas where you claim this practice exists. When
this information is verified, you may solicit in those areas.
Census maintains no rules regulating or restricting employee movement
and speech during non-work time. During non-work time employees are
free to talk among themselves, leave their work sites and visit
employees in other work areas. Prior to Census' memoranda of October
and December 1985 employees engaged in solicitation on behalf of the
incumbent, Local 2782 AFTE, during non-work time in numerous work areas
of Buildings 3 and 4, including work sites other than that of the
solicitors. Census permitted employees to enter work areas other than
their own and solicit membership on behalf of Local 2782 AFGE so long as
both the solicitor and solicitee were in non-work status.
Article 4.3 of the Collective bargaining agreement provides:
"4.3 Internal Union Business. Activities relating to internal
union business (including the solicitation of membership, election
of its officials, and the collection of dues) shall be performed
only during the time the employee is in a nonduty status or on
official paid breaks."
Discussion and Conclusions of Law
Section 7116(a)(1) of the Statute provides that it is 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; . . . . " Section 7102 of the Statute provides "Each employee
shall have the right to form, join or assist any labor organization . .
. . "
The FLRA has held that employees have a right, protected by Section
7102 of the Statute, to solicit membership and distribute literature on
behalf of labor organizations during non-work time in non-work areas.
e.g. General Services Administration, 9 FLRA 213, (1982), Internal
Revenue Service, North Atlantic Service Center, Andover, Massachusetts,
7 FLRA 596 (1982). The FLRA has further held that an employee has the
right to solicit membership on behalf of a labor organization while in
non-duty status in work areas where the employees being solicited are
also in non-duty status, absent disruption of the activity's operations.
See Social Security Administration, 13 FLRA 409 (1983) and Oklahoma
City Air Logistics Center, Tinker Air Force Base, Oklahoma, 6 FLRA 159
(1981). This right of employees to distribute literature and solicit
membership on behalf of a labor organization, as recognized by the FLRA,
is one of the fundamental rights of employees protected by Section 7102
of the Statute; a right whose protection is most important. Such a
right for employees to communicate among themselves is necessary if the
employees are to have any meaningful right to organize for collective
bargaining. The FLRA recognized the importance of the employee rights
to solicit on behalf of a labor organization when the FLRA recognized
that an agency policy or rule prohibiting solicitation by employees, on
work premises, during non-duty time is presumptively invalid, and, in
the absence of special circumstances, interferes with the employees'
Section 7102 rights and violates Section 7116(a)(1) of the Statute.
Oklahoma City Air Logistics Center, Tinker Air Force Base, supra.
In the subject case Census contends that its October 28, 1985
memorandum does not prohibit solicitation in work areas during non-work
times, but rather states that employees may freely use their non-work
time as they please in their work area.
The second paragraph of the October 28 memorandum states that
employees are free to use non-work time as they see fit, in their work
areas. However, the third paragraph makes it quite clear that, because
there are no general common non-work times Hanlon and others, during
non-work times, were denied permission to go into the work areas of
other employees, who were also in non-work status, to discuss union
matters because other employees in that general area might be working.
Further Census' December 6 memorandum clarified any confusion by saying
that when Hanlon can find an area where all employees are on "non-duty
status at the same time, we will authorize you to solicit in the work
area during those non-duty times."
The October 28 and December 6 memorandum make it absolutely clear
that Census maintains a rule that provides that an employee during a
break, cannot solicit membership on behalf of NTEU or any other labor
organization with a second employee who is also on a break (in non-work
status) in either employee's work area.
Census' witness' attempts to explain the memoranda so as to show no
such rule was stated nor meant were unpersuasive, confused and are
totally discredited. The instructions from Census to Hanlon were clear.
Hanlon, while on break, could not solicit for NTEU with any other
employee, also on break, in a work area unless all employees in the work
area were also on break.
Thus, absent some unusual circumstance or work disruption, Census' no
solicitation rule is too broad and is violative of Section 7116(a)(1) of
the Statute. Social Security Administration, supra.
Census contends that because employees in non-work status are in the
same area as employees in work status, to permit solicitation would
disrupt Census' operations. This contention is rejected.
The record establishes that during non-work time employees may visit
each other in their work areas and discuss a variety of non-work related
matters and that there are no limitations concerning such employee
contract. Further there was no evidence introduced to establish that
prior union solicitation between employees in the work area during
non-work time had resulted in any interference with any working
employees' performance of their duties. In fact Hanlon stated in his
request that he would be very careful not to interfere with employees
who were working.
In light of the foregoing I conclude that Census did maintain a rule
that prevented employees from engaging in union solicitation in work
areas during non-work times and that such rule constituted a violation
of Section 7116(a)(1) of the Statute. /3/
Having concluded that Census violated Section 7116(a)(1) of the
Statute I recommend that the Authority issue the following:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
the Department of Commerce, Bureau of Census, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its employees in
the exercise of rights guaranteed in Section 7102 of the Statute,
by prohibiting employees from soliciting membership on behalf of
National Treasury Employees Union, or any other labor
organization, during non-work time in work areas where there is no
disruption of work.
(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) Permit Edward Hanlon and other employees to solicit
membership on behalf of National Treasury Employees Union, or any
other labor organization, during non-work times in work areas
where there is no disruption of work.
(b) Post at its Suitland Federal Center facilities 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 a responsible official 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 ensure 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 III, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: August 29, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) General Counsel of the FLRA filed Motion to Correct the
Transcript, which was unopposed and is hereby granted.
(2) The coffee breaks are not taken at the same time by all
employees, but rather are worked into the days work schedule by
individual employees.
(3) In so finding I am not concluding that in unusual circumstances
Census could not limit such solicitation. Such unusual circumstances
were not present in the subject case.
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain or coerce our employees in the
exercise of rights guaranteed in Section 7102 of the Statute, by
prohibiting employees from soliciting membership on behalf of National
Treasury Employees Union, or any other labor organization, during
non-work time in work areas where there is no disruption of work.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL permit Edward Hanlon and other employees to solicit
membership on behalf of National Treasury Employees Union, or any other
labor organization, during non-work times in work areas where there is
no disruption of work.
(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 of the Federal Labor Relations Authority, Region 3,
whose address is: 1111 - 18th Street, NW., 7th Floor, P.O. Box 33758,
Washington, DC 20033-0758 and whose telephone number is: (202)
653-8452.