11:0077(24)CA - Labor, Office of Workers' Compensation Programs, Branch of Special Claims and Stephanie E. Garland -- 1983 FLRAdec CA



[ v11 p77 ]
11:0077(24)CA
The decision of the Authority follows:


 11 FLRA No. 24
 
 DEPARTMENT OF LABOR, OFFICE OF
 WORKERS' COMPENSATION PROGRAMS,
 BRANCH OF SPECIAL CLAIMS
 Respondent
 
 and
 
 STEPHANIE E. GARLAND
 Charging Party
 
                                            Case No. 3-CA-2180
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.
 Exceptions to the Judge's Decision were filed by the Respondent, to the
 effect that the violations found by the Judge were de minimus.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of Labor, Office of Workers'
 Compensation Programs, Branch of Special Claims, shall:
 
    1.  Cease and desist from:
 
    (a) Removing and prohibiting the posting of union notices on employee
 bulletin boards, where there is a past practice permitting such posting.
 
    (b) Informing newly appointed stewards that they were not, and could
 not act as, stewards until their supervisor had been notified of their
 appointment by the agency's labor-management relations office.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
    (a) Post at its facilities at 711 14th Street, N.W., Washington, D.C.
 copies of the attached Notice on forms to be furnished by the Authority.
  Upon receipt of such forms, they shall be signed by the Assistant
 Deputy Commissioner, Branch of Special Claims, or his designee, and
 shall be posted and maintained for 60 consecutive days thereafter in
 conspicuous places, including all bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to insure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., January 20, 1983
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT remove and prohibit the posting of union notices on
 employee bulletin boards, where there is a past practice permitting such
 posting.
 
    WE WILL NOT inform newly appointed stewards that they are not, and
 cannot act as, stewards until their supervisor had been notified of
 their appointment by the agency's labor-management relations office.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority whose address
 is:  1111 18th Street, Rm. 700, P.O. Box 33758, Washington, D.C.
 20033-0758 and whose telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Ronald S. Robins, Esquire
          For the Respondent
 
    Donna M. Ditullio, Esquire
          For the General Counsel
 
    Before:  Randolph D. Mason
          Administrative Law Judge
 
                                 DECISION
 
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., as a result of
 an unfair labor practice complaint filed on July 28, 1981, by the Acting
 Regional Director, Region III, Federal Labor Relations Authority,
 against the Department of Labor, Office of Workers' Compensation
 Programs, Branch of Special Claims ("respondent").
 
    The complaint alleges three separate violations of Sec. 7116(a)(1) of
 the Statute since respondent allegedly (1) removed a union notice from
 an employee bulletin board, (2) told employees not to post such notices
 and directed the removal of a duplicate union notice from the board, and
 (3) told employees not to assist or act on behalf of the union.
 Respondent denies that any violation of the Statute occurred.
 
    A hearing was held in this matter before the undersigned in
 Washington, D.C., on September 22, 1981.  All parties were afforded full
 opportunity to be heard, adduce relevant evidence, and examine and
 cross-examine witnesses.  Counsel for the General Counsel made an oral
 argument and respondent filed a brief;  all arguments have been duly
 considered.  Based on the entire record herein, including my observation
 of the witnesses and their demeanor, the exhibits, and other relevant
 evidence adduced at the hearing, I make the following findings of fact,
 conclusions of law, and recommended order.
 
                             Findings of Fact
 
    At all times material herein, the respondent, Office of Workers'
 Compensation, Branch of Special Claims, was located at 711 14th Street,
 N.W., Washington, D.C., ("711 building").  Prior to September 30, 1980,
 Local 12 of the American Federation Of government Employees, the
 employees' exclusive representative, did not have any stewards
 physically located in that building.
 
    During September of 1980, union members at the 711 building were duly
 notified that nominations for union steward and alternate steward
 positions should be submitted to the election committee.  Thereafter,
 the following nominations were submitted:  Maureen Gorman, steward;
 Joyce Rumore, first alternate steward;  and Stephanie Garland, second
 alternate steward.  The nominations were uncontested, and the union
 appointed these individuals to their positions on or about October 1,
 1980.
 
    On the evening of October 1, Stephanie Garland posted the following
 handwritten notice on the employees' bulletin board:
 
          As a result of uncontested union nominations, the following
       people have been appointed to union positions:
 
          Maureen Gorman-- Union Steward
 
          Joyce Rumore-- 1st Alternate
 
          Stephanie Garland-- 2nd Alternate
 
    The above bulletin board was the only one located in the 711
 building.  It was typically used for employees' personal notices, cards,
 "thank-you" notes, carpool requests, and job announcements.  During the
 summer and fall of 1980, the following union notices were also posted on
 that board without any objection by respondent:  a notice of a speech by
 the union president, and two notices relating to meetings for the
 purpose of nominating union stewards at the 711 building.
 
    At about 7:30 a.m. on October 2, the Chief of the Branch of Special
 Claims, Richard Larson, removed Garland's union notice concerning newly
 appointed stewards from the bulletin board.  Garland, who was present at
 the time, protested the removal of the notice.  Larson was visibly upset
 and angry and told Garland that he would see her later.  About a half
 hour later Garland posted a duplicate of the original notice on the
 bulletin board.
 
    At 8:30 a.m. on October 2, Larson called Garland, Gorman and Rumore
 into his office.  Another supervisor was also present at the meeting.
 Larson stated that he had heard that they had put the notice back up on
 the bulletin board.  He was clearly upset.  He instructed them to take
 it down and told them not to put up any more signs notifying people of
 their appointment as stewards.  He also said that they could not
 participate in union activities until he was notified by the
 respondent's labor-management relations office that they had been
 appointed as stewards.  Although it at first appeared that he was saying
 that they could not participate in any union activities in any capacity,
 it became clear during the conversation that he meant to say that they
 were not stewards, and could not act as such, until he was duly notified
 of their appointments.  /1/
 
    After the meeting, the stewards removed the notice from the board.
 Later that day at 2:45 p.m., after being advised by the union that they
 had a right to post such notices, they re-posted a copy of the notice on
 the bulletin board.  Larson also removed this copy, but put the notice
 back up on the board about 15 minutes later.
 
    The collective bargaining agreement between respondent and the union
 provided in the "Official Time" article that the union would provide the
 Department of Labor with a complete list of officers, stewards, and
 other representatives within 30 days after each general election;  it
 also provided that within the first five days of each month, the
 Department would be informed by the union of any change in the list that
 occurred during the preceding month.  Although it is arguable that the
 contract denies a steward the right to official time for representation
 purposes until management is duly notified of the steward's appointment,
 the contract clearly does not preclude the performance of such duties
 while not on official time.
 
                            Conclusions of Law
 
    The first issues for consideration arise out of Larson's removal of a
 union notice from the employees bulletin board and his subsequent
 instruction to the new union stewards to remove a similar notice and to
 refrain from posting any similar notices in the future.  The notice in
 question had informed unit employees of the recent appointment of the
 three new stewards.  The General Counsel takes the position that
 respondent's actions violated Sec. 7116(a)(1) because they interfered
 with, restrained, or coerced employees in the exercise of rights
 protected by the Statute.  Section 7102(a) gives each employee the right
 to form, join, or assist any labor organization, and this specifically
 includes the right to act as a union representative.  For the reasons
 set forth below I agree with the General Counsel.
 
    It has been held that an employer may not remove a union newsletter
 from the employer's bulletin board if the employees and the union had
 been permitted to post personal and official union notices.  Container
 Corp. of America, 244 NLRB No. 53, 102 LRRM 1162 (1979).  There is no
 reason why this rule should not be applied in the public sector as long
 as the posted material meets the agency's established standards of
 propriety.  The posting in question was a simple communication to
 bargaining unit employees announcing the recent appointment of one
 steward and two alternate stewards.  By removing and prohibiting the
 future posting of such notices, respondent directly interfered with the
 stewards' right to communicate with and represent employees in the unit.
  Further, respondent's action interfered with the right of unit
 employees to seek the assistance of their union representatives.
 
    Respondent argues that the respondent's action resulted in only
 minimal impact and did not have a chilling effect on unit employees.  In
 the first place, a violation of Sec. 7116(a)(1) will be found even if
 respondent's action merely "tends" to produce a chilling effect on the
 exercise of protected activity.  Department of the Army, Fort Bragg
 Schools, 3 FLRA No. 57 (1980).  In the instant case, the stewards
 removed their notice from the board as soon as they were told by Larson
 to do so.  The fact that they replaced the notice a few hours later upon
 the advice of a higher union official does not detract from the fact
 that respondent's action tended to have a chilling effect.
 
    Respondent also appears to be arguing that any violation that may
 have occurred was de minimus in nature.  In this regard, where a
 supervisor violates the Statute but immediately rectifies his error, the
 Authority has found that it would not effectuate the purposes of the
 Statute to find a violation and issue a remedial order.  Norfolk Naval
 Shipyard, Norfolk, Virginia, 4 FLRA No. 91 (1980).  In the instant case,
 Larson did replace the union's notice on the bulletin board about 6 1/2
 hours after initially demanding its removal and forbidding any future
 posting of such notices.  But this re-posting by Larson only partially
 rectified his error.  There is no evidence that he notified the union
 and the employees that other union postings would be permitted;
 furthermore, it does not even appear that he publicized the fact that
 he, rather than the union, had replaced the notice on the board.  Since
 Larson only partially rectified his error, I conclude and hold that
 respondent violated Sec. 7116(a)(1) of the Statute and that a remedial
 order would be appropriate.
 
    The final issue for consideration is whether Larson told the three
 new stewards not to assist or act on behalf of the union.  There is no
 question that such a statement, if made to employees, would constitute a
 violation of Sec. 7116(a)(1).  I find that the statement actually made
 was not as broad as the one alleged by the charging party;  however, the
 statements, when taken in their proper context, were still violative of
 the Statute.  I have found that Larson told Garland, Gorman, and Rumore
 that they were not stewards, and could not act as such, until he was
 officially notified of their appointments by respondent's
 labor-management relations office.  /2/ The fact that he had not yet
 been notified did not mean that they were not, or could not act as,
 stewards.  The most that could be argued under the collective bargaining
 agreement was that they could not be entitled to take official time for
 such activities until Larson was notified by the agency.  Thus, prior to
 such notification they could have at least performed representational
 functions, e.g., while on annual leave, at lunch time, and after regular
 working hours.  Respondent's statement clearly interfered with the
 stewards' right under Sec. 7102(a) to act as a union representative, and
 violated Sec. 7116(a)(1) of the Statute.
 
    In view of the foregoing conclusions I recommend that the Authority
 adopt the following order:
 
                                   ORDER
 
    Pursuant to 5 U.S.C. 7118(a)(7) and Sec. 2423.26 of the Authority's
 Rules and Regulations, 45 Fed.Reg. 3482, 3510 (1980), it is hereby
 ORDERED that the Department of Labor, Office of Workers' Compensation
 Programs, Branch of Special Claims, shall:
 
    1.  Cease and desist from:
 
          (a) Removing and prohibiting the posting of union notices on
       employee bulletin boards.
 
          (b) Stating to newly appointed stewards that they were not, and
       could not act as, stewards until their supervisor had been
       notified of their appointment by the agency's labor-management
       relations office.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute, 5 U.S.C. 7101, et seq.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Post at its facilities at 711 14th Street, N.W.,
       Washington, D.C. copies of the attached notice marked "Appendix"
       on forms to be furnished by the Authority.  Upon receipt of such
       forms, they shall be signed by the Assistant Deputy Commissioner,
       Branch of Special Claims, and shall be posted and maintained by
       him for 60 consecutive days thereafter in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  He shall take reasonable steps
       to insure that such notices are not altered, defaced, or covered
       by any other material.
 
          (b) Pursuant to Sec. 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director of Region III, Suite
       700, 1111 18th Street, N.W., Washington, D.C.  20036.
 
                                       RANDOLPH D. MASON
                                       Administrative Law Judge
 
 Dated:  December 31, 1981
          Washington, D.C.
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT
 
    WE WILL NOT remove and prohibit the posting of union notices on
 employee bulletin boards.
 
    WE WILL NOT tell newly appointed stewards that they are not, and
 cannot act as, stewards until their supervisor has been notified of
 their appointment by the agency's labor-management relations office.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
                                       (Agency of Activity)
 
 Dated:  . . .  By:  (Signature)
 
    This notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defa