13:0310(48)CA - Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB, CO and AFGE Local 2865 -- 1983 FLRAdec CA
[ v13 p310 ]
The decision of the Authority follows:
13 FLRA No. 48 ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES), LOWRY AFB EXCHANGE, LOWRY AFB, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2865 Charging Party Case No. 7-CA-591 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision. 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 and conclusion that the Respondent did not, in the specific circumstances of this case, violate section 7116(a)(1) of the Statute as alleged in the complaint. /1/ As found by the Judge, the American Federation of Government Employees, AFL-CIO, Local 2865 (the Union), the exclusive representative of certain employees at the Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB, Colorado (the Respondent), requested and was granted access to a specific neutral place on the Respondent's facility where a non-employee Union representative could meet with unit employees on their non-work time to conduct internal union business. The Judge further found, based upon credited testimony, that the Union had at least specifically agreed to notify the Respondent's Exchange Manager before non-employee Union representatives went into Exchange facilities; that William Bleau, a non-employee Union representative, thereafter entered the Respondent's facilities without providing such notice, although he fully understood that the requirement applied to him, and met with unit employees concerning internal union business immediately adjacent to their work area rather than at the neutral location set aside for such purpose; that Mr. Bleau was speaking with these employees when he was approached by Ms. Scott, a management representative, and told that he was not permitted on the premises to talk with employees without authorization and that he would have to leave; and that Mr. Bleau refused to do so until Ms. Scott asked for the Air Police to be summoned. The Judge concluded, based upon the foregoing, that the Respondent did not violate section 7116(a)(1) of the Statute as alleged. The Authority agrees. Thus, as previously noted, the Union clearly had agreed to notify the Exchange Manager before non-employee Union representatives entered the Respondent's facilities but failed to comply with that requirement in the instant case. The Authority concludes that the Respondent, by insisting upon the Union's compliance with such previously established and mutually agreed upon notification procedures, did not violate section 7116(a)(1) of the Statute. In so concluding, the Authority finds it unnecessary to determine whether the Union's non-employee representatives would have had an unrestricted right of access to the Respondent's facilities in the absence of the agreed-upon procedures /2/ or to pass upon the Judge's discussion of private sector cases involving restrictions on the access of non-employee union organizers to an employer's property for organizational purposes. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 7-CA-591 be, and it hereby is, dismissed. Issued, Washington, D.C., September 30, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-591 Gavin K. Lodge, III, Esquire For the General Counsel Luther G. Jones, III, Esquire Mr. G. T. Pearson For the Respondent Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., /3/ and the Final Rules and Regulations issued thereunder, Federal Register, Vol. 45, No. 12, January 12, 1980, 5 C.F.R.Chapter XIV, concerns the propriety of a no-access rule for non-employee Union representatives and was initiated by a charge filed on May 28, 1980 (G.C. Exh. 1(a)). The complaint and notice of hearing issued on August 29, 1980 (G.C. Exh. 1(c)), pursuant to which a hearing was duly held before the undersigned on December 5, 1980, in Denver, Colorado. All parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to , introduce evidence bearing on the issues involved, and to present oral argument. At the close of the hearing, by agreement of the parties, January 12, 1981, was fixed as the date for mailing post-hearing briefs and each party timely mailed a brief, received on or before January 16, 1981, which have been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions: Findings and Conclusions The American Federation of Government Employees, AFL-CIO, Local 2865 (hereinafter, also referred to as the "Union") is the recognized exclusive representative of certain employees of Respondent at the Lowry AFB Exchange more fully described in the parties' agreement approved March 30, 1978 (Res. Exh. 7). Article VI of the negotiated agreement is entitled "Union Representation". Section 3, pursuant to Section 20 of Executive Order 11491, as amended, now Sec. 31(b) of the Statute, provides as follows: "Section 3. Activities concerned with the internal management of employee organizations or membership meetings, solicitation of membership, collection of dues, campaigning for employee organization offices, and distribution of literature, will be conducted during non-duty hours of the employees concerned." (Res. Exh. 7, Art. VI, Section 3) The only provision of the agreement of which I am aware, or which has been called to my attention, relating to representatives of AFGE, as distinguished from officials of the Union, i.e., Local 2865, is Section 6 which provides as follows: "Section 6. Representatives of the AFGE, upon request, may be admitted to exchange facilities, in accordance with applicable regulations for the purpose of meeting with Officials of the employer during working hours on matters appropriate under E.O. 11491, as amended." (Res. Exh. 7, Art. VI. Section 6) Section 6 states, both clearly and without ambiguity, that AFGE representatives, "upon request, may be admitted to exchange facilities . . . for the purpose of meeting with Officials of the employer . . . " Section 6 does not, by its literal language, address admission of AFGE representatives to exchange facilities for any purpose except for meeting with officials of the employer. Stated otherwise, Article VI, Section 6 of the negotiated agreement did not authorize admission of AFGE representatives to exchange facilities except to meet with Officials of the employer. That AFGE representatives were not authorized by the negotiated agreement to enter exchange facilities to talk to employees about the internal business of a labor organization, including the solicitation of membership, was implicitly acknowledged by Mr. Charles W. Carter's letter of April 21, 1980, to Respondent (Res. Exh. 8), Mr. Carter being National Vice President, AFGE Thirteenth District. In his letter, Mr. Carter advised Respondent of the appointment of Mr. William R. Bleau as a special representative and, inter alia, " . . . requested Mr. Bleau be advised of a neutral place where he can meet the employees on their non-work time in or near the main exchange and in or near the main cafeteria at the Finance Center." (Res. Exh. 8). On May 1, 1980, a Union-Employer meeting was held and present for the Union were: Ms. Carol Harper, President of Local 2865, and Mr. Bleau, AFGE representative; and present for Respondent were: Mr. Michael Cuzzetto, Exchange Manager, and Ms. Kathy Stanton, Personnel Assistant. Minutes of the meeting, initialed by Ms. Harper, show, in material part, as follows: "3. The meeting had been requested to discuss Mr. Bull's request in his letter dated 21 April 1980 /4/ for a neutral place where Mr. Bleau can meet the employees on their non-work time. That information was provided in writing to Mr. Bleau. A letter was requested from the Union stating specific dates and times for the use of this room. * * * * "5. In accordance with Article VI, Section 6, representatives of the AFGE must request permission from the Exchange Manager before going into Exchange facilities. Mr. Bleau further stated he would review with the Exchange Manager items to be posted on bulletin boards prior to posting." (Res. Exh. 9). Ms. Harper stated that the minutes were fully accurate except for the words, "request permission from", as to which she testified "we agreed to notify" (Tr. 182), i.e., paragraph 5 of the minutes, according to Ms. Harper, should have stated, " . . . representatives of the AFGE must notify the Exchange Manager before going into Exchange facilities . . . " Ms. Stanton testified that the minutes, which she prepared, were accurate; and Mr. Bleau readily acknowledged Mr. Cuzzetto's assertion on May 1, that he must abide by Article VI, Section 6 (Tr. 95). Indeed, Counsel for the General Counsel stated, in part, as follows: "Q (By Mr. Lodge) So, if I can recapitulate, management's position was that you had to get some sort of approval from them to talk to the employees . . . " (Tr. 69). However, Mr. Bleau stated, " . . . management contended that I had to work under the provision of Article VI, Section 6 there. And I told them that wasn't my interpretation. My interpretation was that since I was representing the local, I had authorization to go in and fulfill the responsibilities under the negotiated agreement. I didn't feel I had to comply with Article VI, Section 6 as such." (Tr. 68). Later, Mr. Bleau further stated, " . . . I also advised them that I was working initially under the provisions of Article VII . . . I believe it's Section 1, 'Publicity' which is negotiated, that it is the Union's responsibility to update and maintain the bulletin boards. "And since I was only trying to do some initial groundwork during the first few weeks . . . that was all I was doing was going around and taking care of the bulletin boards." (Tr. 95) /5/ A further Union-Employer meeting, requested by Mr. Bleau, was held on May 16, 1980, with the same persons present as at the May 1 meeting, and the minutes, initialed by Ms. Harper, show, in part, as follows: /6/ "7. Mr. Bleau asked Ms. Harper about the message she had gotten from Ms. Stanton. Ms. Stanton had told her that Mr. Bleau was not to go in the facilities without permission. Mr. Bleau stated that he intended to go in the facilities whether Mr. Cuzzetto liked it or not-- that he does not work for Mr. Cuzzetto but for the Union. If Mr. Cuzzetto wanted to discuss it he could put it on the agenda for the next meeting." (Res. Exh. 14). Mr. Bleau, testified, in part, as follows: " . . . from my point of view, management was contending that I had no right into the facilities. But it was my interpretation that I did not have a right into the facilities without permission if I was meeting with officials of the employer. And I was not doing that at the time of my getting acquainted with the people, if you will. "Q Did you at this meeting tell Mr. Cuzzetto that you intended to enter the facilities whether he liked it or not? "A I did. "Q Did you tell him if he wanted to discuss it further, he could put it on the agenda for the next meeting? "A As a matter of fact, yes, sir, I did. "Q You were aware, then, at that time that management objected to you entering the facilities. Would that be a fair statement? "A Sure would be. * * * * "A As I said, I went to every one. I left his office and went on my grand tour. I won't lie. I touched base with every one. I didn't agree with his interpretation of the contract." (Tr. 99-100). From the foregoing it is clear, and I conclude as follows: First, Article VI, Section 6, by its terms, applies to all non-employee "Representatives of the AFGE". Second, Article VI, Section 6 does not authorize admission of AFGE representatives to exchange facilities except to meet with officials of the employer. Third, interpretations aside, Respondent advised the Union, and specifically Mr. Bleau and Ms. Harper, on various occasions, including May 1 and May 16, 1980, that AFGE representatives, and in particular Mr. Bleau himself, were not permitted to enter exchange facilities without authorization. Fourth, Respondent contends that the Union, on May 1, 1980, agreed that "representatives of the AFGE must request permission from the Exchange Manager before going into Exchange facilities", while Ms. Harper, whom I found to be a wholly credible witness, testified that "we agreed to notify", i.e., that representatives of the AFGE must notify the Exchange Manager before going into Exchange facilities. /7/ Accordingly I find, as Ms. Harper testified, that the Union agreed on May 1, 1980, at the very least, that representatives of the AFGE, which all parties understood meant non-employee representatives of the AFGE, must notify the Exchange Manager before going into Exchange facilities. Although I am aware of the testimony concerning Mr. Bleau's purchase of a soft drink, there is no serious doubt that Mr. Bleau fully understood that the "no-access" rule without prior notice applied solely to his presence in the capacity of a representative of the AFGE. Fifth, Respondent, as requested, advised the Union of a neutral place where Mr. Bleau could meet with employees on their non-work time. The threshold question is whether Respondent could validly limit access to its facilities by non-employee representatives of the AFGE. For reasons set forth below, I conclude that it could. Section 16(a)(1) of the Statute, essentially as does Sec. 8(a)(1) of the National Labor Relations Act, /8/ provides as follows: 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 any employee in the exercise by the employee of any right under this chapter." Of course, the rights protected by Sec. 2 and by Sec. 16(a)(1) of the Statute, and by Section 7 and by Section 8(a)(1) of the NLRA, are rights of employees. The distinction was well, and clearly, stated by the United States Supreme Court, as respects the NLRA, in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956) as follows: ". . . no restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 803. But no such obligation is owed non-employee organizers. Their access to company property is governed by a different consideration. The right of self-organization depends in some measure on the ability of employees to learn of the advantages of self-organization from others . . . It (the NLRA) does not require that the employer permit the use of its facilities for organization when other means are readily available." (351 U.S.at 113-114). Although the concept of private property has frequently been referred to, which, in a sense is absent as to government property, with all deference, I do not believe that private ownership, per se, is now, if it ever were, the basis for the rule. Indeed, the managers of most corporations no more own corporate property than managers of government property. In the case of corporations, the true owners are the stockholders; and in the case of government property, the owners are the citizens at large. An employer's facilities generally are not freely open to "outsiders", including non-employee Union organizers; the only right protected by the NLRA is, as the Supreme Court noted in Babcock & Wilcox, supra, the right of employees to learn of the advantages of self-organization from others; and when there are other means readily available, the employer is not required to admit the non-employee organizer to his facilities. See, for example, Hudgens v. NLRB, 424 U.S. 507 (1976); Rochester General Hospital, 234 NLRB 253, 97 LRRM 1410 (1978). In like manner, government facilities generally are not freely open to "outsiders"; the only right protected by the Statute, as by the NLRA, is the right of employees to learn of the advantages of self-organization from others; and when there are other means readily available, an agency is not required to admit non-employee organizers to its facilities. In Department of the Army, U.S. Army Natick Laboratories, Natick, Massachusetts, A/SLMR No. 263, 3 A/SLMR 193 (1973), Judge Fenton stated in part, that "It is questionable whether the accommodation struck between property rights and organizational rights in Babcock & Wilcox is appropriate in the federal sector." (3 A/SLMR at 206); however, the Assistant Secretary rejected this conclusion, stating, " . . . I reject the Administrative Law Judge's conclusion that because of different property rights in the public and private sectors, the circumstances in which Government as an employer can legitimately bar non-employees from its property or restrict the scope of their activities must be far more circumscribed in the public sector." (3 A/SLMR at 196 n. 6). It is certainly true that this case does not involve initial organization. To the contrary, the Union already was the recognized exclusive representative and, of course, had a negotiated collective bargaining agreement with Respondent. But, because of flagging interest, the National Vice President, Mr. Carter, appointed Mr. Bleau to revitalize the Union and to solicit membership. Mr. Bleau's activity, as pertains to this case, concerned solely internal Union business and did not involve representational activity. I reject the contention that Mr. Bleau, most assuredly a representative of the AFGE, was entitled to the same freedom of access to Respondent's facilities as an employee of Respondent would enjoy because he was acting in the interest of the Union. He was, and remained, a non-employee representative of the AFGE, and the Statute does not require that Respondent permit unrestricted access to its facilities by such non-employee representatives for internal Union business if other means of communication with employees are readily available. There can be no possible doubt that other means of communication were readily available. Not only was the Union already the exclusive bargaining representative, with its officers and stewards in place, but a neutral place on the base, as requested, was available where Mr. Bleau could meet employees on their non-work time. Moreover, Mr. Bleau was not denied all access to Exchange facilities but merely was denied access to Exchange facilities without authorization by the Exchange Manager. In view of the accommodation made by Respondent for access by non-employee representatives of the AFGE to its employees, I find that Respondent's rule denying access to Exchange facilities by non-employee representatives of AFGE without authorization was a valid and lawful policy and its enforcement did not violate Sec. 16(a)(1) of the Statute. Mr. Bleau, in addition to being a representative of the AFGE, is a retired veteran of the Air Force and concedes that he uses his ID card to enter the Base (Tr. 71-72). On May 20, 1980, Mr. Bleau went to the Base at about 8:30 or 9:00 a.m. and went to the service station where he purchased gasoline. He talked to the attendant about the Union, said, "Well, I can't talk to you on official time. But what time do you go to lunch? I'd like to talk to you and some of your friends." The attendant told him they "break for lunch" at about 11:30. Mr. Bleau stated that he then drove to the back of the garage; that he got out of his Jeep and entered one of the open bays and walked over to an employee who was working in one of the bays, Mr. Michael Castille; introduced himself as a Union representative; gave Mr. Castille a pencil holder with the Union logo (Res. Exl. 1); and told Mr. Castille he would like to talk to him during his lunch break and asked when that would be. Mr. Castille told him it would be after his last car, which would be 11:30, and when he finished that car he would break for lunch (Tr. 20-21). Mr. Bleau appeared at the parking area adjacent to the lube bays at about 11:30 and Mr. Castille testified that he saw him but continued working until he finished (Tr. 22) at which point, Mr. Castille stated that he asked Craig Canady and Keith Miller to step out with him to see what Mr. Bleau had to say. Mr. Bleau testified that after he parked his Jeep, he returned to the lube bay and asked Mr. Castille if he were ready yet, but Mr. Castille said, "No, man, I have to finish my job," whereupon he, Bleau, had gone back to his Jeep and sat on the hood and in a few minutes "those guys" came out. Mr. Castille introduced Canady and Miller and shortly thereafter Ms. Scott came out and "told Mr. Bleau he was supposed to call Mr. Cuzzetto at headquarters office before coming over to the station" (Tr. 23). Mr. Castille continued, stating, in part, as follows: "And Mr. Bleau began to talk. And his voice got very loud in the process, some language used in there. And it just sort of got out of hand. "Q What was he saying to her? "A He said something about, 'Hey, lady.' And there was a little cursing in there too. But she was trying to explain to him that he had to call the headquarters office. "Q Did he say anything to her about you men being on your lunch hour? "A Yes, he did, I think. He did say that. * * * * "A That is our own time, the break. "Q How do you know that? "A It has been mentioned to me. "Q By who? "A Mrs. Scott told me. "Q That the time on your lunch hour is your own time? "A That is your individual time. "Q All right. So Mr. Bleau and Mrs. Scott were having this argument. What happened at that point? Had she said anything to you and Mr. Miller and Mr. Canady about getting inside the garage? "A She asked us back in the shop. And that was when she was explaining to him about the procedure you had to go through. "Q Did you say anything to her about being on your lunch hour? "A When she started mentioning procedure, I sort assumed that it was wrong. So, we got together and left. (Tr. 23-24). I found Mr. Castille's testimony wholly credible and, accordingly, I fully credit his testimony. Mr. Bleau's assertion that he was assaulted by Ms. Scott is as ludicrous as it is unsupported by the evidence. Mr. Bleau admitted that he spit in her face, which he asserted was accidental and resulted from caps on his teeth (Tr. 79), and if Mrs. Scott raised her arm to protect herself and touched Mr. Bleau's arm as she testified (Tr. 42, 49), it certainly did not rise to the level of constituting an assault. There is no doubt that Ms. Scott told Mr. Bleau that he was not permitted on the premises to talk to employees without authorization and that she told him to leave; that he refused to leave; and that she told Mr. Luis F. Castro-Calderon to call the Air Police. With respect to a conversation she had with Mr. Miller, Ms. Scott very credibly testified as follows: "Q (By Mr. Lodge) Did you have a conversation with Keith Miller later that day or the next day talking about unions on Air Force bases? "A He asked me if Unions could come on Air Force bases. And I told him, yes, but they had to have prior authorization from the office, and we had to receive a telephone call before they came to talk to the employees. "Q You didn't say anything about them not being authorized at all? "A No." (Tr. 43). Not only do I find Ms. Scott a wholly credible witness, but her testimony in this regard was fully consistent with all other testimony, including Mr. Castille's testimony as to her statement to Mr. Bleau; her testimony as to Mr. Cuzzetto's instructions, given at a managers' meeting in early May, 1980 (Tr. 37; see, also Tr. 163); and the conceded notice given by Mr. Cuzzetto at the Union-Employer meetings on May 1 and 16, 1980. Mr. Miller did not testify and his proffered affidavit was rejected at the hearing, a ruling which I expressly reaffirm. I did not find convincing Mr. Bleau's testimony that he called the Exchange Manager's office on May 20, 1980, and therefore so not credit his testimony in this regard. Ms. Stanton very credibly testified that neither she nor, to her knowledge, Mr. Cuzzetto was advised of any such call; Mr. Bleau's statement on May 16, 1980, and his admitted action on that date negate his having given notice on May 20; and, even more significant, Mr. Bleau at no point on May 20 in his "discussion" with Ms. Scott asserted that he had notified the office of the Exchange Manager. Moreover, even if he had, contrary to my finding, called the office of the Exchange Manager, obviously, he had received no authorization from the Exchange Manager to enter facilities of the Exchange, which was the rule, or policy, of Mr. Cuzzetto, as Mr. Bleau admits, was plainly stated to the Union, and to Mr. Bleau, at least on May 1 and on May 16, 1980. The allegation of the Complaint that Ms. Scott, "(a) told unit employees on their lunch break to get back to work and not to talk to a union representative-- May 20, 1980" (G.C. Exl. 1(c), par. 4(a)), is not supported by the evidence. Rather, the evidence shows that Ms. Scott told Mr. Bleau that he was not permitted on the premises without prior authorization, that she told Mr. Bleau to leave. The issue, and the subject of this litigation, was, plainly, whether a non-employee representative of the AFGE could be denied access to Exchange facilities without prior authorization of the Exchange Manager. For reasons set forth above, I have found that Respondent's limited "non-access rule" to Exchange facilities without prior approval of the Exchange manager was valid and Respondent's enforcement of said rule, by Ms. Scott on May 20, 1980, did not violate Sec. 16(a)(1) of the Statute. /9/ Her asking the employees to go back to the shop "when she was explaining to him (Bleau) about the procedure" was incidental to the central and controlling issue, namely Mr. Bleau's presence at Exchange facilities without authorization. Employees are free to use their break time as they see fit, Charleston Naval Shipyard, A/SLMR No. 1, A/SLMR 27 (1970); Federal Energy Administration, Region VI, Atlanta, Georgia, A/SLMR No. 541, 5 A/SLMR 509 (1975); Department of the Air Force, Offut Air Force Base, A/SLMR No. 784, 7 A/SLMR 61 (1977); Oklahoma City Air Logistics Center (AFLC) Tinker Air Force Base, Case No. 6-CA-175 (ALJ, May 23, 1980); but the issue here was not their freedom to talk to Mr. Bleau, rather, it was Mr. Bleau's right to be present on Exchange facilities without authorization. Such technical interference by Ms. Scott with the freedom of employees to remain in the parking area was insufficient to constitute a violation of Sec. 16(a)(1). Accordingly, having found, for reasons set forth above, that Respondent did not violate the Statute by enforcement of its limited "no-access rule" by non-employee representatives of the AFGE to enter Exchange facilities without prior authorization of the Exchange Manager, I recommend that the Authority adopt the following: ORDER IT IS HEREBY ORDERED THAT the Complaint in Case No. 7-CA-591 be, and the same is hereby, dismissed. WILLIAM B. DEVANEY Administrative Law Judge Dated: June 25, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) 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 any employee in the exercise by the employee of any right under this chapter(.) /2/ In any event, as the Authority has previously found, a union may waive its rights under the Statute by clear and unmistakable conduct. See, e.g., Nuclear Regulatory Commission, 8 FLRA No. 124 (1982). /3/ For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "