11:0493(86)CA NAPFE VS ARMY -- 1983 FLRAdec CA



[ v11 p493 ]
11:0493(86)CA
The decision of the Authority follows:


11 FLRA NO. 86
UNITED STATES ARMY TROOP SUPPORT
AND AVIATION MATERIAL READINESS COMMAND,
ST. LOUIS, MISSOURI

     Respondent

     and

NATIONAL ALLIANCE OF POSTAL AND
FEDERAL EMPLOYEES

     Charging Party

Case No. 7-CA-644

DECISION AND ORDER

The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practice alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party (the Union) filed exceptions to the Judge's Decision and a brief in support thereof. The Respondent also filed an opposition to the Charging Party's 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), 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 in this case, the Authority hereby adopts the Judge's findings, conclusions and recommendation. [ v11 p493 ]

ORDER

IT IS HEREBY ORDERED that the complaint in Case No. 7-CA-644 be, and it hereby is, dismissed.

Issued, Washington, D.C., March 3, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p494 ]

U.S. ARMY TROOP SUPPORT
AND AVIATION MATERIAL READINESS
COMMAND, ST. LOUIS, MISSOURI

     Respondent

     and

NATIONAL ALLIANCE OF POSTAL AND
FEDERAL EMPLOYEES

     Charging Party

Case No. 7-CA-644

Robert H. Garfield, Esq.
        For the Respondent

Edward L. Welch, Esq.
        For the Charging Party

John J. Rubin, Esq.
        For the General Counsel

Before: FRANCIS E. DOWD
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. It was instituted by the Regional Director of the Seventh Region of the Federal Labor Relations Authority by the issuance of a Complaint and Notice of Hearing dated September 30, 1980. The Complaint was issued following an investigation of an unfair labor practice charge filed on July 8, 1980, and an amended charge dated December 8, 1980, by the National Alliance of Postal and Federal Employees, herein referred to as the Charging Party, Union, or NAPFE. [ v11 p495 ]

The Complaint alleges that U.S. Army Troop Support and Aviation Materiel Readiness Command, St. Louis, Missouri, herein referred to as Respondent, violated Section 7116(a)(1) of the Statute by the following conduct:

On or about March 25, 1980, Respondent, acting by and through Major General Richard H. Thompson and Dona L. McGlynn, did issue to an employee of Respondent a written rule or policy prohibiting employees and/or Union officials, as well as any other labor organization other than National Federation of Federal Employees (NFFE) Local 405, the current exclusive representative of Respondent's bargaining unit employees, from distributing union literature within Respondent's facilities at any time during the life of the existing collective bargaining agreement between Respondent and NFFE Local 405, except during the "open window" period prior to the termination of said collective bargaining agreement.

In its Answer, Respondent denied that the rule or policy described above was issued to an employee of Respondent, and denied any violation of the Statute. The contentions of the parties will be more specifically discussed later in this decision.

A hearing was held in St. Louis, Missouri at which the parties were represented by counsel and afforded full opportunity to adduce evidence and call, examine, and cross-examine witnesses and argue orally. Briefs filed by Respondent and Charging Party have been duly considered.

Upon consideration of the entire record in this case, including my evaluation of the testimony and evidence presented at the hearing, and from my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order.

Findings of Fact

1. In February or early March of 1980, a special edition of the National Alliance of Postal and Federal Employees Reporter was posted on a bulletin board on the Respondent's premises. The newsletter dated February 4, 1980 contained an article about a recent EEO class action matter and identified certain NAPFE officers who were employees of the Respondent.

2. Upon learning that the newsletter was posted, an agent of Respondent removed the letter from the bulletin board and wrote the following letter dated March 11, to Mr. Ransom:

Attached is a National Alliance of Postal and Federal Employees (NAPFE) Newsletter which was posted on a [ v11 p496 ] bulletin board in the 1st floor lunchroom in Building 102. Since you are identified in this newsletter as the President of NAPFE Local 918, I am returning this bulletin to you.

Inasmuch as no NAPFE Local has an exclusive recognition as TSARCOM, there is no contractual right or obligation to post or distribute NAPFE literature in TSARCOM. Further, the fact that another labor organization has exclusive recognition at this Headquarters makes it an unfair labor practice for me to permit such activity. I request that you advise members of your organization to refrain from posting or distributing NAPFE literature in the future without proper authority. Any future occurrences of this nature will result in this Command taking appropriate action to correct the situation.

The Complaint does not allege any violation based upon this letter.

3. In reply thereto, Union President Ransom sent a letter to Commanding Officer Thompson of Respondent. The letter, dated March 17, 1980 and typed on official stationery with the Union's letterhead stated as follows:

In reference to your letter dated 11 March 1980, it is regrettable that a National Alliance Newsletter was posted on a bulletin board at TSARCOM without proper authority. I have advised the members of Local 918 that they are not to post any literature without the proper authority.

Sir, as a matter of clarification, am I to understand that distribution of National Alliance or any other organizational material in a non-working area during non-duty time is prohibited?

The question asked by the Union is clear in certain respects. Thus, it referred to distribution, rather than solicitation; it was confined to "organizational material" rather than institutional or other types of material such as the newsletter which had been removed from the bulletin board; it referred to "non-working area" rather than working area; and it referred to "non-duty time" as opposed to regular duty hours. However, the question was somewhat ambiguous with respect to whether the distribution of organization material involved employees or non-employees.

4. In answer to the Union's request for clarification, Respondent drafted a letter dated March 25 (G.C. Exh. No. 5) which is the document upon which the complaint is based. That letter stated as follows: [ v11 p497 ]

This is in response to your letter dated 17 March 1980 requesting clarification regarding the policy of distributing NAPFE literature in non-working areas during non-duty time. NAPFE nor any other labor organization other than NFFE Local 405 has any authority to distribute literature within TSARCOM throughout the three year life of the current agreement with NFFE Local 405 other than during the open window period at the termination of that agreement.

I trust this information answers your question.

It seems to me that if the Union had any legitimate doubts as to the applicability of the Respondent's answers to employees and non-employees alike, it could have sought further clarification from Respondent. Instead, it elected to file an unfair labor practice charge which, of course, it has a right to do.

5. When Ms. Dona Lee McGlyn, a labor relations specialist, prepared the foregoing reply for Respondent she knew that Ransom had been promoted to a position with another agency but did not know his new location, so she sent the letter to his last worksite knowing it would be forwarded to him. Accordingly, when Ransom received this letter in his capacity as Union President, he was no longer a bargaining unit employee (TR. 24, lines 4-8, 23-25.).

6. Ms. McGlynn credibly testified that the March 25 letter was addressed to NAPFE as a labor organization not having recognition within the Command (Tr. 32); that she perceived the question as being limited to the right of the Union as an entity to engage in distributing its organizational literature (Tr. 35, 38, 39, 42); and that she confined her answer to the right of NAPFE and other outside labor organizations to distribute their organizational literature. In response to extensive examination and cross-examination by three attorneys, McGlynn very credibly and persuasively testified that the question asked and the answer given did not cover the question of distribution by employees; that she knew of no agreement barring employees from distributing literature on behalf of NAPFE (Tr. 44); and that distribution by NAPFE members, who were employees, was clearly permitted (Tr. 36).

7. Although Union President Ransom testified that his Union had members among Respondent's employees, the record does not establish that the "no-distribution rule" set forth in Respondent's March 25 letter was ever communicated to employees by Union President Arthur Ransom.

Issues

1. Whether the no-distribution rule set forth in Respondent's March [ v11 p498 ] 25 letter prohibits the distribution of organizational literature "by employees."

2. Whether the no-distribution rule was promulgated to employees.

Contentions of the Parties

The General Counsel and Charging Party contend that the March 25 letter from Respondent contains a no-distribution rule which is sufficiently broad as to encompass and prohibit distribution of non - NFFE labor organizational literature by employees in non-working areas during non-duty time. The Respondent contends that the letter dealt solely with, and correctly stated the law concerning, the rights of outside labor organizations. Further, Respondent contends that the Charging Party has not demonstrated any special circumstances entitling it to enjoy the use of Respondent's services and facilities. A secondary argument advanced by Respondent is that Arthur Ransom was not an employee of Respondent and therefore his Title VII rights were not interfered with, restrained or coerced within the meaning of Section 7116(a)(1).

The General Counsel did not file a brief but did discuss several cases during his closing argument, none of which is pertinent to the issues under consideration. By General Counsel's own admission, in Department of the Air Force, Norton Air Force Base, California, A/SLMR No. 337 (January 8, 1974) the propriety of a purportedly broad "no distribution" rule was not at issue. Similarly, the Assistant Secretary, ruled on an altogether different issue in Department of Transportation, Federal Aviation Administration, Alaskan Region; Anchorage, Alaska, A/SLMR No. 1141 (October 18, 1978). The private sector cases cited by the General Counsel, NLRB v. Magnavox Company of Tennessee, 415 U.S. 322 (1974) and Gale Products, 142 NLRB 1246 (1963) likewise deal with an issue far afield from the issues presented in the instant case. It is true that both Gale and Magnavox concerned blanket prohibitions against distribution of literature on company property; however, in interpretation of the rules was not at issue. The primary thrust of those decisions is whether a labor organization can "bargain away" employees' rights to form, join, or assist labor organizations under section 7 of the National Labor Relations Act.

Discussion and Conclusions of Law

A. The Alleged No - Distribution Rule

Respondent's March 25, letter must be considered in the proper context. While Respondent's removal of the Charting Party's newsletter from one of its bulletin boards was the catalyst for the correspondence which culminated in the March 25, letter and subsequent unfair labor practice charge, there never has been any contention that removal from the bulletin board was improper. The March 25, letter is the sole basis of the charge and complaint. [ v11 p499 ]

The question posed to Respondent in the Charging Party's March 17, letter, signed by Mr. Ransom on union letterhead and as the Charging Party's president, did not mention the rights of employees. It referred solely to the "National Alliance". Consistent with the Charging Party's language, Respondent responded in kind:

...NAPFE nor any other labor organization other than NFFE Local No. 405 has any authority to distribute literature within TSARCOM...

The language is clear and unequivocal. The March 25, letter addresses the question of the rights of labor organizations, in particular the Charging Party, not those of Respondent's employees. I find and conclude that Respondent's reply clearly was directed towards distribution by labor organizations, and not to distribution by employees. Assuming, arguendo, that Respondent's reply constitutes a no-distribution rule, I conclude that the "rule" does not prohibit employees from distributing organizational literature and therefore does not infringe on employees' Section 7102 rights to "form, join, or assist any labor organization." Thus, I conclude that Respondent did not violate Section 7116(a)(1) of the statute.

Moreover, in addition to the clear and unequivocal language of the March 25 letter, we have the credible and persuasive testimony of Ms. McGlynn concerning her perception of the question asked by the Union - namely that NAPFE was inquiring about the right of a labor organization as an entity - and her reply in kind. In all fairness, it seems to me that it was the Charging Party's question itself which lead Ms. McGlynn to this perception, since the thrust of the question seemed, in fact, to concern the rights of the Union, no mention being made of distribution by employees. Thus, the testimony of McGlynn provides additional evidence in support of my conclusions set forth above based solely on a reading of the letter.

B. Respondent's Neutrality Defense

Although the Charging Party's question and Respondent's answer spoke in terms of distribution of literature, it seems quite clear that Respondent was also concerned with "access" to Respondent's property at a time when it had a contract with another union. Thus the March 25 letter referred to the "open window period at the termination of the agreement" with NFFE, and the earlier letter expressed the view that it would be an unfair labor practice for Respondent to permit NAPFE to post or distribute literature since another labor organization had exclusive recognition. Accordingly, Respondent's other defense is that the March 25 letter correctly stated the rights of the Charging Party as set forth in decisions under the Executive Order dealing with the rights of non- employee representatives not possessing "equivalent status" to enjoy the use of the services and facilities of a government agency for purposes of organizational activities. In an excellent brief, Respondent fully [ v11 p500 ] discussed this defense and analyzed the lead case issued by the Authority on this subject. 1 However, in view of my conclusion that Respondent's March 25 letter did not constitute an invalid no-distribution rule, I find it necessary to pass upon this defense and the applicability of the Authority's decision in the cited case.

C. Promulgation

Even assuming, arguendo, that Respondent's alleged no-distribution rule was ambiguous and therefore could be construed as prohibiting distribution "by employees," I would have a problem in concluding that the rule was ever "promulgated" to employees in this case. Webster's New World Dictionary 2 defines promulgation as follows: "1. to publish or make known officially (a decree, church dogma, etc.), 2.(a) to make known the terms of (a new or proposed law or statute), (b) to put (a law) into effect by published its terms, 3. to make widespread." Roget's International Thesaurus 3 gives the following words as synonyms: publish, propagate, circulate, disseminate, broadcast, proclaim, announce, declare, spread, spread word, and diffuse.

In private sector cases, employers generally try to make sure that a no-distribution rule is given widespread dissemination to employees. Indeed, the whole purpose in publishing and announcing the rule is to ensure that employees are informed as to precisely what kind of conduct is being prohibited and, at the same, usually warned that violation of the rule may or will result in some sanction being imposed. These elements are missing from this case. Here, we do not have a situation where an employer on its own initiative formulates a rule and the proceeds to publish it to employees. Rather, we have an employer responding in writing to a written question propounded by the Union's President. The reply was not posted on bulletin boards for employees to read; it was not circulated in writing to employees; it was not even circulated to supervisors. Where, then, is the promulgation? What we have in this case, it seems to me, is a written reply stating the Respondent's position concerning what it believes are the limitations on an outside labor organization's right to distribute organizational literature. The reply was not directed towards employees; it was not distributed to employees. Indeed, it does not even appear that the reply was intended to be received by employees. [ v11 p501 ]

Arthur Ransom received the March 25 letter in his capacity as Union President. Because he was a former employee at the time he received the letter, it cannot even be said that the rule was promulgated to "an employee." The only way to find that the reply was promulgated to employees is to infer that Union President Ransom would, as a matter of course, have conveyed this information to those employees of Respondent who also were members of NAPFE. But the only reason to draw an inference is because of the absence of testimony as to whether, in fact, the substance of Respondent's March 25 letter was ever communicated by Hansom to employees and, if so, in what manner. Since Hansom testified at the hearing but offered no testimony on this aspect of the case, it is my conclusion that the General Counsel has failed to meet his burden in this respect, and I decline to infer that Hansom became a conduit for announcing or otherwise promulgating the alleged no-distribution rule to Respondent's employees. Thus, for this additional reason,