Internal Revenue Service, North Atlantic Service Center (Andover, MA) (Respondent) and National Treasury Employees Union and National Treasury Employees Union, Local 69 (Charging Party)

 



[ v07 p596 ]
07:0596(92)CA
The decision of the Authority follows:


 7 FLRA No. 92
 
 INTERNAL REVENUE SERVICE
 NORTH ATLANTIC SERVICE CENTER
 (Andover, Massachusetts)
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES UNION,
 LOCAL 69
 Charging Party
 
                                            Case No. 1-CA-269
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
 ENGAGED IN AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED JUDGE'S RECOMMENDED
 DECISION AND ORDER.  THE JUDGE ALSO FOUND THAT THE RESPONDENT HAD NOT
 ENGAGED IN OTHER UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND
 ORDERED THAT THOSE ALLEGATIONS BE DISMISSED.  THE CHARGING PARTY AND THE
 RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE JUDGE'S RECOMMENDED
 DECISION AND ORDER.
 
    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
 JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
 SUBJECT CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATIONS AS INDICATED BELOW.  /1/
 
    THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION THAT THE DISTRIBUTION OF
 UNION LITERATURE BY EMPLOYEES IN THE EMPLOYEE CAFETERIA DURING NON-WORK
 TIME IS A PROTECTED ACTIVITY UNDER THE STATUTE.  SECTION 7102 OF THE
 STATUTE PROVIDES IN PERTINENT PART:
 
    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.
 
    THE RIGHT TO "JOIN, OR ASSIST ANY LABOR ORGANIZATION" ENCOMPASSES THE
 DISTRIBUTION OF UNION LITERATURE IN NON-WORK AREAS, DURING NON-WORK
 TIME.  CF. OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC) TINKER AIR FORCE
 BASE, OKLAHOMA, 6 FLRA NO. 32 (1981), INVOLVING SOLICITATION DURING
 NON-WORK TIMES.  THE ENFORCEMENT OF NO-DISTRIBUTION RULES AGAINST
 EMPLOYEES DISTRIBUTING UNION LITERATURE IN NON-WORK AREA DURING NON-WORK
 TIME VIOLATES SECTION 7116(A)(1) OF THE STATUTE, WHICH MAKES IT AN
 UNFAIR LABOR PRACTICE FOR ANY AGENCY "TO INTERFERE WITH, RESTRAIN, OR
 COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT" UNDER
 THIS CHAPTER.  ACCORDINGLY, THE RESPONDENT'S REMOVAL OF SUCH LITERATURE
 FROM THE CAFETERIA VIOLATED SECTION 7116(A)(1) OF THE STATUTE.
 
    THE AUTHORITY ALSO ADOPTS THE JUDGE'S FINDING THAT THE ACTIONS OF A
 SUPERVISOR IN REQUESTING HER EMPLOYEES TO READ PART OF THE LITERATURE
 DID NOT, UNDER ALL OF THE CIRCUMSTANCES, CONSTITUTE A VIOLATION OF
 SECTION 7116(A)(1) OF THE STATUTE.  AS FOUND BY THE JUDGE, THE REQUEST
 WAS CASUALLY MADE WITHOUT ANY ENFORCEMENT OR POLICING BY THE SUPERVISOR.
  ADDITIONALLY, THE AUTHORITY ADOPTS THE JUDGE'S DISMISSAL, IN EFFECT, OF
 THAT PART OF THE COMPLAINT ALLEGING THAT THE SUPERVISOR ATTRIBUTED
 RESPONSIBILITY FOR THE UNION LITERATURE TO A PARTICULAR EMPLOYEE.
 
                                   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 INTERNAL REVENUE SERVICE, NORTH
 ATLANTIC SERVICE CENTER, 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
 REMOVING UNION LITERATURE PLACED IN THE CAFETERIA OR OTHER NON-WORK
 AREAS BY ITS EMPLOYEES DURING NON-WORKING TIME.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THE 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) POST AT THE NORTH ATLANTIC SERVICE CENTER, ANDOVER,
 MASSACHUSETTS, AND THE WILMINGTON ANNEX TO THE SERVICE CENTER, COPIES OF
 THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY.  UPON
 RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE NORTH
 ATLANTIC SERVICE CENTER, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (B) NOTIFY 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.
 
    IT IS FURTHER ORDERED THAT THE SECTION 7116(A)(1) ALLEGATIONS OF THE
 COMPLAINT PREDICATED ON THE ACTIONS OF THE SUPERVISOR, WHICH HAVE BEEN
 FOUND SUPRA NOT TO BE VIOLATIVE OF THE STATUTE, BE, AND HEREBY ARE,
 DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 7, 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 GUARANTEED IN SECTION 7102 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BY REMOVING UNION LITERATURE
 PLACED IN THE CAFETERIA OR OTHER NON-WORK AREA BY OUR EMPLOYEES DURING
 NON-WORKING TIME.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE OUR EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
 7102 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  411
 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS 02116, AND WHOSE
 TELEPHONE NUMBER IS:  (617) 223-0920.
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ELLIOT CARLIN, ESQUIRE
    FOR THE RESPONDENT
 
    RICHARD ZAIGER, ESQUIRE
    CAROL WALLER POPE, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BARBARA J. COLLINS, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  BURTON S. STERNBURG
    ADMINISTRATIVE LAW JUDGE
 
                            CASE NO.: 1-CA-269
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL LABOR-MANAGEMENT RELATIONS
 STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. SECTION 7101,
 ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
 VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
 SEQ.
 
    PURSUANT TO A CHARGE FILED ON FEBRUARY 15, 1980, BY THE NATIONAL
 TREASURY EMPLOYEES UNION AND NTEU LOCAL 69, (HEREINAFTER CALLED THE NTEU
 OR UNION, A COMPLAINT AND NOTICE OF HEARING WAS ISSUED ON APRIL 30,
 1980,BY THE REGIONAL DIRECTOR FOR REGION I, FEDERAL LABOR RELATIONS
 AUTHORITY, BOSTON, MASSACHUSETTS.  THE COMPLAINT ALLEGES THAT THE
 INTERNAL REVENUE SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER,
 MASSACHUSETTS, (HEREINAFTER CALLED THE RESPONDENT OR IRS) VIOLATED
 SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTIONS IN
 CONFISCATING UNION LITERATURE FROM THE EMPLOYEE CAFETERIA AND
 SUBSEQUENTLY, DURING AN INFORMAL MEETING, REQUIRING A NUMBER OF
 EMPLOYEES TO READ THE UNION LITERATURE AND, IN RESPONSE TO AN INQUIRY,
 ATTRIBUTING RESPONSIBILITY FOR THE UNION LITERATURE TO A PARTICULAR
 EMPLOYEE.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 26, 1980, IN
 BOSTON, MASSACHUSETTS.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES HEREIN.  ALL PARTIES SUBMITTED BRIEFS BY OCTOBER
 20, 1980, WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    IN 1979, THE NTEU WAS CONDUCTING AN ORGANIZING CAMPAIGN AT
 RESPONDENT'S NORTH ATLANTIC SERVICE CENTER LOCATED IN ANDOVER,
 MASSACHUSETTS, AND THE WILMINGTON, MASSACHUSETTS ANNEX TO THE NORTH
 ATLANTIC SERVICE CENTER LOCATED SOME SEVEN MILES AWAY FROM THE SERVICE
 CENTER.  AT THE TIME OF THE ORGANIZING CAMPAIGN, THE EMPLOYEES WORKING
 IN THE SERVICE CENTER AND THE ANNEX WERE REPRESENTED BY THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES.  THE NTEU WAS SUCCESSFUL IN ITS
 ORGANIZING CAMPAIGN AND RECEIVED CERTIFICATION FROM THE FLRA ON AUGUST
 12, 1980.
 
    THE EVENTS UNDERLYING THE INSTANT COMPLAINT OCCURRED AT THE
 WILMINGTON, MASSACHUSETTS ANNEX.  MR. ARTHUR KALIVAS, CHIEF OF THE
 RETURNS SECTION AT THE ANNEX, IS IN CHARGE OF THE ANNEX WHICH HOUSES SIX
 OTHER SUPERVISORS AND BETWEEN 115 AND 130 EMPLOYEES.
 
    BETWEEN 9:00 A.M. AND 9:45 A.M. THE EMPLOYEES WERE ALLOWED TO TAKE
 ONE OF THREE SCHEDULED 15 MINUTE WORK BREAKS.  /2/ LUNCH HOUR BREAKS
 WERE SCHEDULED AT HALF-HOUR INTERVALS STARTING AT 11:30 AND ENDING AT
 1:00 P.M.  THERE WAS ONE AFTERNOON BREAK FROM 2:00 P.M.  TO 2:15 P.M.
 THE RECORD INDICATES THAT MANY OF THE EMPLOYEES TOOK THEIR BREAKS IN THE
 CAFETERIA LOCATED ON THE FIRST LEVEL OF THE ANNEX.
 
    ON DECEMBER 11, 1979, AT APPROXIMATELY 9:15 A.M. MS. MARGARET SNOW,
 WHO WAS THEN ON A 9:15 - 9:30 A.M. BREAK, PLACED APPROXIMATELY FIFTY
 COPIES OF EACH OF TWO LEAFLETS ON A CAFETERIA TABLE LOCATED NEXT TO THE
 ENTRANCE TO THE CAFETERIA.  /3/ ONE LEAFLET WAS ENTITLED "AFGE CONTINUES
 TO HOLD UP THE ANDOVER SERVICE CENTER ELECTION," AND THE SECOND LEAFLET
 WAS ENTITLED "SUPERVISOR OF THE MONTH." THE LATTER DOCUMENT MADE
 REFERENCE TO MS. FRANCIS VERVILLE, SUPERVISOR OF THE DOCUMENT RETENTION
 UNIT AS "THIS SEASON'S HOLIDAY TURKEY" AND CRITICIZED HER BEHAVIOR.
 (THE LEAFLET IS ATTACHED HERETO AS ATTACHMENT A).  MS. SNOW HAD OBTAINED
 THE LEAFLETS FROM MS. DOROTHY CORMIER, A QUALITY REVIEWER AT THE ANNEX.
 
    SHORTLY AFTER 9:15 A.M., MS. EUNICE MARTINO, A BARGAINING UNIT
 EMPLOYEE FROM MS. VERVILLE'S UNIT, ENTERED THE CAFETERIA AND JOINED MS.
 SNOW AND MR. FRANK KEMPTON AT A TABLE LOCATED SOME THREE TO FOUR TABLES
 AWAY FROM THE DOORWAY TO THE CAFETERIA.  MS. MARTINO READ THE UNION
 LEAFLET WHICH MADE A REFERENCE TO MS. VERVILLE AND EXPRESSED
 DISAPPROVAL.  MS. MARTINO LEFT THE CAFETERIA AND RETURNED TO HER UNIT AT
 ABOUT 9:25 A.M.  /4/
 
    SHORTLY AFTER MS. MARTINO'S DEPARTURE, MR. KALIVAS, WHO HAD BEEN
 INFORMED BY ONE OF HIS SUPERVISORS OF THE UNION LITERATURE DISPARAGING
 MS. VERVILLE, ENTERED THE CAFETERIA AND WENT DIRECTLY TO THE CAFETERIA
 TABLE WHERE THE LITERATURE HAD BEEN PLACED.  MR. KALIVAS QUICKLY SCANNED
 THE LITERATURE AND THEM REMOVED ALL THE REMAINING COPIES OF THE UNION
 LITERATURE FROM THE TABLE.  MR. KALIVAS THEN TOOK THE LITERATURE OVER TO
 THE MAIN BUILDING IN ANDOVER AND SHOWED THE LITERATURE TO HIS
 SUPERVISORS AND MS. LILLIAN HENSHAW, A LABOR RELATIONS SPECIALIST.  UPON
 BEING ADVISED BY MS. HENSHAW THAT THE LITERATURE SHOULD BE RETURNED, MR.
  KALIVAS RETURNED TO THE ANNEX AND AT ABOUT 1 P.M. RESTORED SOME OF THE
 UNION LITERATURE TO THE CAFETERIA TABLE.  ACCORDING TO MR. KALIVAS, HE
 HAD ORIGINALLY ONLY TAKEN ABOUT EIGHT COPIES OF EACH DOCUMENT.  AFTER
 LEAVING A NUMBER OF COPIES OF THE LITERATURE WITH HIS SUPERVISORS HE HAD
 ONLY ABOUT 3 OR 4 COPIES OF EACH DOCUMENT LEFT, WHICH HE RETURNED TO THE
 CAFETERIA TABLE.  /5/
 
    AS NOTED ABOVE, MS. MARTINO DISAPPROVED OF THE UNION LEAFLET
 CONTAINING DISPARAGING REFERENCES TO MS. VERVILLE.  UPON RETURNING TO
 MS. VERVILLE'S UNIT AFTER HER MORNING BREAK, MS. MARTINO SHOWED THE
 LEAFLET TO MS. VERVILLE, WHO AT THE TIME WAS JUST COMPLETING A
 BACKGAMMON GAME WITH ANOTHER EMPLOYEE WHO HAD OPTED TO TAKE THE FIFTEEN
 MINUTE MORNING BREAK AT HER PLACE OF WORK.  THE RECORD FURTHER INDICATES
 THAT A NUMBER OF OTHER EMPLOYEES IN MS. VERVILLE'S UNIT WERE EITHER
 RETURNING FROM THEIR BREAKS OR HAD SPENT THEIR BREAKS OBSERVING THE
 BACKGAMMON GAME.  IN ANY EVENT, AFTER MS. VERVILLE READ THE UNION
 LEAFLET IN WHICH SHE WAS AWARDED THE "HOLIDAY TURKEY" SHE THEN ASKED THE
 EMPLOYEES IN HER UNIT TO READ THE LEAFLET AND HANDED THE LEAFLET TO THE
 EMPLOYEE NEAREST HER.  /6/ WHILE THE EMPLOYEES WERE MILLING AROUND AND
 READING THE LEAFLET, AN EMPLOYEE ASKED WHO WAS RESPONSIBLE FOR THE UNION
 LEAFLET.  ACCORDING, MS. VERNON AND MS. WHITAKER, MS. VERVILLE DENIED
 POINTING OUT MS. CORMIER OR MOUTHING HER NAME.  I CREDIT MS. VERVILLE'S
 DENIAL.
 
                        DISCUSSION AND CONCLUSIONS
 
    IT IS WELL ESTABLISHED, BOTH IN THE PRIVATE AND FEDERAL SECTOR, THAT
 THE RIGHT ACCORDED EMPLOYEES TO "JOIN, OR ASSIST ANY LABOR ORGANIZATION"
 ENCOMPASSES THE DISTRIBUTION OF UNION LITERATURE IN NON-WORK AREAS
 DURING NONWORKING TIME.  CHARLESTON NAVAL SHIPYARD AND FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, METAL TRADES DEPT. AFL-CIO, A/SLMR NO. 1;
 LETOURNEAU CO. OF GEORGIA V. NLRB, 324 U.S. 793;  REPUBLIC AVIATION CORP
 V. NLRB 324 U.S. 793.
 
    RESPONDENT ACKNOWLEDGES THE ABOVE INTERPRETATION OF THE LAW, BUT
 TAKES THE POSITION THAT "SCURRILOUS AND DEFAMATORY" LITERATURE, SUCH AS
 THE "HOLIDAY TURKEY" LEAFLET, IS DISRUPTIVE OF AGENCY DISCIPLINE AND
 HENCE OUTSIDE THE AMBIT OF THE PROTECTED ACTIVITY SANCTIONED BY SECTION
 7102 OF THE STATUTE.  IN SUPPORT OF ITS POSITION, RESPONDENT RELIES ON
 MARYLAND DRYDOCK CO. V. NLRB, 183 F2D. 538, (4TH CIR.), WHEREIN THE
 COURT FOUND THE DISTRIBUTION OF LITERATURE LAMPOONING A COMPANY OFFICIAL
 AND REFERRING TO THE OFFICIAL AS A GOOSE AND VULTURE TO BE UNPROTECTED
 ACTIVITY SINCE THE LITERATURE WAS "MANIFESTLY DESTRUCTIVE OF
 DISCIPLINE." WITH RESPECT TO THE OTHER OR COMPANION UNION LEAFLET
 REMOVED BY RESPONDENT'S MANAGER FROM THE CAFETERIA, RESPONDENT TAKE THE
 POSITION THAT ALL SUCH LITERATURE WAS NOT REMOVED, AND EVEN IF IT WERE,
 THAT SUCH VIOLATION WAS OF A DE MINIMUS NATURE SINCE THE LEAFLETS WERE
 SUBSEQUENTLY RETURNED TO THE CAFETERIA SOME THREE HOURS LATER.
 ACCORDINGLY, RESPONDENT TAKES THE POSITION THAT A POSTING REMEDY IS NOT
 IN ORDER.
 
    CONTRARY TO RESPONDENT, I FIND THE "HOLIDAY TURKEY" LEAFLET TO BE OF
 AN ENTIRELY DIFFERENT CHARACTER THAN THE LITERATURE FOUND TO BE
 "SCURRILOUS" AND "DEFAMATORY" IN MARYLAND DRYDOCK, SUPRA.  UNLIKE THE
 LITERATURE IN MARYLAND DRYDOCK, WHICH IN THE MAIN CONSISTED OF PERSONAL
 ATTACK ON RESPONDENT'S OFFICERS, THE "HOLIDAY TURKEY" LEAFLET ENUMERATED
 THE WORKING CONDITIONS AND PRACTICES THE UNION WAS UNHAPPY WITH AND
 AWARDED MS. VERVILLE THE "HOLIDAY TURKEY" FOR BEING THE MANAGEMENT
 OFFICIAL RESPONSIBLE THERFORE.  IN MARYLAND DRYDOCK THE UNION
 PUBLICATION CONSISTED OF GENERAL INSULTS TO MANAGEMENT WITHOUT ANY
 REFERENCE TO, OR CONNECTION WITH, WORKING CONDITIONS OR PRACTICES.
 ACCORDINGLY, I FIND THE COURT'S DECISION IN MARYLAND DRYDOCK, SUPRA, TO
 BE DISTINGUISHABLE AND HENCE NOT CONTROLLING.
 
    MOREOVER, IT IS NOTED THAT THE ASSISTANT SECRETARY HAS CONSIDERED
 SIMILAR LITERATURE AS THAT UNDER CONSIDERATION HEREIN AND FOUND THAT THE
 INCLUSION OF INSULTING AND DEROGATORY REFERENCES TO MANAGEMENT OFFICIALS
 IN SUCH LITERATURE TO BE AN INSUFFICIENT BASIS FOR REMOVING THE
 DISTRIBUTION OF THE LITERATURE FROM THE PROTECTION OF THE EXECUTIVE
 ORDER.  DEPARTMENT OF NAVY, NAVAL AIR REWORK FACILITY 7 LODGE 39,
 DISTRICT 74, IAM, A/SLMR NO. 543.  IN REACHING HIS CONCLUSION IN THE
 AFOREMENTIONED RESPECT THE ASSISTANT SECRETARY RELIED ON THE SUPREME
 COURT'S DECISION IN OLD DOMINION BRANCH NO. 496, NATIONAL ASSOCIATION OF
 LETTER CARRIERS, AFL-CIO V. AUSTIN, 418 U.S. 264, WHEREIN THE COURT MADE
 IT CLEAR THAT EMPLOYEES IN THE PUBLIC SECTOR WERE ENTITLED TO THE SAME
 COMMUNICATION RIGHTS ACCORDED TO EMPLOYEES IN THE PRIVATE SECTOR.  THE
 COURT WENT ON TO CITE ITS OWN DECISION IN LINN V. PLANT GUARD WORKERS,
 383 U.S. 53, WHEREIN THE USE OF SUCH EPITHETS AS "SCAB," "LIAR",
 "UNFAIR" IN UNION LITERATURE WERE FOUND TO BE AN INSUFFICIENT BASIS FOR
 REMOVING THE LITERATURE FROM THE PROTECTION OF THE NATIONAL LABOR
 RELATIONS ACT.  ACCORDINGLY, IN VIEW OF THE ABOVE CONSIDERATIONS, I FIND
 THAT THE "HOLIDAY TURKEY" LEAFLET FALLS WITHIN THE PROTECTION OF THE
 STATUTE AND THAT RESPONDENT'S ACTION IN REMOVING IT AND THE OTHER
 COMPANION PIECE OF UNION LITERATURE FROM THE CAFETERIA WAS VIOLATIVE OF
 SECTION 7116(A)(1) OF THE STATUTE.  CONTRARY TO RESPONDENT, I DO NOT
 CONSIDER SUCH VIOLATION TO BE DE MINIMUS AND SHALL THEREFORE RECOMMEND
 AN APPROPRIATE REMEDIAL ORDER.
 
    TURNING NOW TO THE REMAINING ALLEGATION OF THE COMPLAINT, I.E. THE
 ACTION OF MS. VERVILLE IN REQUESTING HER EMPLOYEES TO READ THE "HOLIDAY
 TURKEY" LEAFLET, I FIND THAT SUCH ACTION DID NOT, UNDER ALL THE
 CIRCUMSTANCES, CONSTITUTE A VIOLATION OF SECTION 7116(A)(1) OF THE
 STATUTE.  THUS, THE RECORD INDICATES THAT THE REQUEST WAS CASUALLY MADE
 WITHOUT ANY ENFORCEMENT OR POLICING BY MS. VERVILLE.  CONSIDERING THE
 FACT THAT HER REQUEST WAS OF A CASUAL NATURE AND ISSUED IMMEDIATELY
 AFTER SHE WAS FIRST SHOWN THE LEAFLET, I CAN NOT, AS URGED BY THE
 GENERAL COUNSEL, FIND THAT THE REQUEST, STANDING ALONE, CONVEYED THE
 "MESSAGE THAT THE VOICING OF COMPLAINTS REGARDING THE POLICIES AND
 PRACTICES OF HER UNIT WAS NOT TO BE CONDONED:  AND WOULD THUS INHIBIT
 THEIR FUTURE ACTIVITIES IN THIS REGARD.  HAD MS. VERVILLE DISCOVERED THE
 LEAFLET HERSELF AND THEN PROCEEDED TO SUBSEQUENTLY ISSUE INSTRUCTIONS TO
 EMPLOYEES TO READ SAME, A DIFFERENT CONCLUSIONS MIGHT BE IN ORDER,
 HOWEVER SUCH IS NOT THE CASE.  ACCORDINGLY, I SHALL RECOMMEND THAT THIS
 ALLEGATION OF THE COMPLAINT BE DISMISSED.
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. SECTION 7118(A) (7)(A), AND
 SECTION 2423,29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SECTION
 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE INTERNAL REVENUE
 SERVICE, NORTH ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERRING, RESTRAINING OR COERCING ITS EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 7102 OF THE STATUTE, BY
 REMOVING UNION LITERATURE PLACED IN THE CAFETERIA OR OTHER NON-WORK
 AREAS BY ITS EMPLOYEES DURING NON-WORKING TIME.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING, RESTRAINING OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THE 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 LABOR-MANAGEMENT RELATIONS STATUTE:
 
    (A) POST AT THE NORTH ATLANTIC SERVICE CENTER, ANDOVER,
 MASSACHUSETTS, AND THE WILMINGTON
 
    ANNEX TO THE SERVICE CENTER, 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 DIRECTOR
 
    OF THE NORTH ATLANTIC SERVICE CENTER, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60
 
    CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY
 
    POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) NOTIFY 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.
 
    IT IS FURTHER ORDERED THAT THE 7116(A)(1) ALLEGATION OF THE COMPLAINT
 PREDICATED ON THE ACTIONS OF MS. VERVILLE, WHICH HAS BEEN FOUND SUPRA
 NOT TO BE VIOLATIVE OF THE STATUTE, BE, AND HEREBY IS, DISMISSED.  /7/
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 30, 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 OUR EMPLOYEES IN THE
 EXERCISE OF THEIR RIGHTS GUARANTEED IN SECTION 7102 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE BY REMOVING UNION LITERATURE
 PLACED IN THE CAFETERIA OR OTHER NON-WORK AREAS BY OUR EMPLOYEES DURING
 NON-WORK TIME.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE OUR EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
 7102 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  441
 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS, AND WHOSE TELEPHONE
 NUMBER IS (617) 223-0920.
 
                               ATTACHMENT A
 
                             NATIONAL TREASURY
 
                              EMPLOYEES UNION
 
                                CHAPTER 68
 
                          SUPERVISOR OF THE MONTH
 
    CONGRATULATIONS FRANNY.  YOU HAVE BEEN CHOSEN SUPERVISOR OF THE
 MONTH.  DUE TO THE FACT THAT YOU HAVE THE MOST EMPLOYEE COMPLAINTS, WE
 AT CHAPTER 68 OF NTEU FIND THIS AWARD THE MOST APPROPRIATE.
 
    EMPLOYEES ARE COMPLAINING THAT THOSE WHO NEED REGULAR MEDICAL
 ATTENTION (NO FAULT OF YOURS, OF COURSE) SHOULD NOT BE TOLD TO REPORT TO
 WORK BEFORE OR AFTER THEIR APPOINTMENTS, NOR DO EMPLOYEES WHO ARE TOO
 SICK TO GET OUT OF BED FEEL THAT THEY MUST MAKE A PERSONAL PHONE CALL TO
 JUSTIFY THEIR SICK LEAVE.
 
    ANOTHER EMPLOYEE PROBLEM AREA IS YOUR FURNITURE MOVING.  PERMANENTS
 FEEL THEY SHOULD BE SEATED WHERE THEY WORK.  SOME EMPLOYEES HAVE
 SUGGESTED MOVING YOUR DESK CLOSER TO THE DOCK (OF COURSE, THEY WOULD BE
 SURE TO CHECK WITH THE UNION).
 
    THERE IS A UNION CONTRACT (A LITTLE RED BOOK) AT YOUR DISPOSAL AND
 EMPLOYEES THINK "DISPOSAL" IS WHERE YOU PUT IT;  ALONG WITH YOUR
 COMPASSION -
 
    A JOB WELL DONE . . .
 
    FRANNY, BECAUSE YOU EXCEL AT DISCONTENT AND DISRUPTION, WE AT NTEU
 CHAPTER 68 ARE PLEASED TO AWARD YOU THIS DISTINGUISHED RECOGNITION AS
 "SUPERVISOR OF THE MONTH" OR, THIS SEASON'S HOLIDAY TURKEY.
 
                              NTEU CHAPTER 68
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
 THE JUDGE.  THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
 RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
 OBSERVING THE WITNESSES WHILE THEY TESTIFIED.  THE AUTHORITY WILL NOT
 OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
 PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
 RESOLUTION IS INCORRECT.  THE AUTHORITY HAS EXAMINED THE RECORD
 CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
 FINDINGS.
 
    /2/ THE BREAKS WERE AS FOLLOWS:  9:00 A.M. - 9:15 A.M., 9:15 A.M.  -
 9:30 A.M., 9:30 A.M. - 9:45 A.M.
 
    /3/ THE RECORD REVEALS THAT THE CAFETERIA TABLE NEAR THE DOOR WAS
 GENERALLY USED FOR PURPOSES OF DISTRIBUTING LITERATURE CONCERNING UNION
 ACTIVITIES, BLOOD DONOR DRIVES, ETC.  THE TABLE WAS ALSO USED FOR THE
 STORAGE OF STRAWS, NAPKINS AND SPOONS.  FURTHER ACCORDING TO MS. SNOW,
 SHE HAD IN THE PAST PUT UNION LITERATURE ON THE TABLE WITHOUT INCIDENT.
 
    /4/ THE FACT SURROUNDING MS. MARTINO'S RETURN TO HER UNIT WITH A COPY
 OF THE UNION LITERATURE WILL BE DISCUSSED INFRA.
 
    /5/ CONTRARY TO THE TESTIMONY OF MS. SNOW AND MR. KEMPTON, WHOM I
 CREDIT, MR. KALIVAS STATED THAT HE DID NOT REMOVE ALL THE UNION
 LITERATURE FROM THE CAFETERIA TABLE.  ASIDE FROM DEMEANOR AND THE FACT
 THAT MS. SNOW AND MR. KEMPTON CORROBORATED EACH OTHER'S TESTIMONY
 CONCERNING THE AMOUNT OF LITERATURE REMOVED BY MR. KALIVAS, I FIND IT
 HARD TO BELIEVE THAT RESPONDENT'S LABOR RELATIONS SPECIALIST WOULD HAVE
 ORDERED THE RETURN OF THE UNION LITERATURE IF MR. KALIVAS HAD ONLY TAKEN
 A FEW RATHER THAN ALL THE COPIES OF THE UNION LITERATURE ON THE
 CAFETERIA TABLE.
 
    /6/ THE EXACT WORDS USED BY MS. VERVILLE ARE IN DISPUTE.  THUS, MS.
 MARTINO TESTIFIED THAT MS. VERVILLE STATED "EXCUSE ME, PLEASE, I HAVE
 SOMETHING I'D LIKE TO READ;" MS. VERNON RECALLED MS. VERVILLE SAYING
 "BEFORE ANY OF YOU LEAVE THIS WORK AREA, I WANT YOU TO READ THIS;" MS.
 WHITAKER TESTIFIED THAT MS. VERVILLE "ASKED THE EMPLOYEES WHO WERE ABOUT
 TO GO BACK TO THEIR DESKS TO WAIT, BECAUSE SHE HAD A PAPER THAT SHE
 WANTED THEM TO READ." MS. VERVILLE TESTIFIED THAT SHE MERELY "ASKED SOME
 OF MY EMPLOYEES TO READ IT."
 
    /7/ IN THE ABSENCE OF ANY OBJECTION, RESPONDENT'S MOTION TO CORRECT
 TRANSCRIPT, SHOULD BE, AND HEREBY IS, GRANTED.