13:0409(69)CA - SSA and AFGE Local 1923 -- 1983 FLRAdec CA

 13 FLRA No. 69
 
 SOCIAL SECURITY ADMINISTRATION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1923, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-1481
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts, /1/ accompanying exhibits, and the
 parties' contentions, /2/ the Authority finds:
 
    The complaint alleges that the Respondent, Social Security
 Administration, interfered with, restrained and coerced its employees in
 the exercise of their rights guaranteed by section 7102 of the Federal
 Service Labor-Management Relations Statute (the Statute, /3/ in
 violation of section 7116(a)(1), /4/ by prohibiting employees from
 showing a film on behalf of the Charging Party, American Federation of
 Government Employees, Local 1923, AFL-CIO (the Union), in working areas
 during non-work time as part of a membership recruitment effort.  The
 Union has been recognized as the exclusive representative for a unit of
 employees at the Activity since 1963.
 
    The stipulated record shows that on August 18, 1980, Richard Levine,
 a Union organizer employed by the Respondent, sent a letter to the
 Respondent requesting permission to show a twelve minute film strip to
 employees in work areas of Respondent's facility during the employees'
 non-work time, as part of the Union's membership drive.  Solicitation
 for Union membership and distribution of Union literature had previously
 occurred, as a matter of practice, in work areas during non-work time;
 although management was aware of this practice, it never tried to
 prohibit it.
 
    In subsequent conversations during August and September of 1980
 between representatives of the Union and representatives of management
 about the request to show the film strip, the Union gave assurances to
 management that the film equipment was small and would not disrupt
 employees who were working in other areas.
 
    The Union proposed to show the film to small groups of employees by
 work unit during their common lunch period, which is non-work time, in
 their work area.  In most cases where the film would be shown, no
 employees would be working in adjacent areas.  Virtually all work areas
 are laid out in an open space configuration separated by file cabinets.
 
    The Union offered to show the film on a trial basis with a management
 labor relations representative present, and, if it proved disruptive, to
 stop the film.  The film strip with accompanying sound track was
 previewed by two staff members of the Division of Labor Relations on
 September 2, 1980.
 
    During the latter part of August or early September 1980, the
 Respondent, through its agent Larry Massanari, denied the Union
 permission to show the film strip in work areas of Respondent's
 facility, taking the position that the film could disrupt employees in
 adjacent work areas during their work time.  The Respondent offered to
 make available to the Union other facilities, such as conference rooms,
 for the Union to show its film strip with accompanying sound track.  The
 Union refused, stating that it had a right to show the film in work
 areas during non-work time, since other forms of solicitation, such as
 bond drives, Combined Federal Campaign, blood donor programs,
 collections for the Employees Activity Association, Inc., and
 collections for parties, lunches, and dinners had occurred with
 management's knowledge in work areas both during work time and non-work
 time.  Many employees eat lunch in their work areas as opposed to the
 cafeteria, and the Union stressed that the film would have a greater
 audience if it were shown in the work area, as employees who were not
 Union members would be reluctant to leave their work areas while eating
 lunch to attend a Union function in another room.
 
    The General Counsel asserts that a policy or rule which prohibits
 solicitation by employees in work areas, during non-work time, in the
 absence of special circumstances, constitutes an interference with
 employee rights under section 7102 in violation of section 7116(a)(1) of
 the Statute.  The General Counsel alleges that, by prohibiting the
 showing of the film for the purpose of Union membership recruitment
 during non-work time in work areas, the Respondent interfered with its
 employees' right to solicit in violation of the Statute.
 
    The Respondent's primary position is that the issue herein involves
 not the unit employees' right to solicit for Union membership but rather
 the use of government facilities, and thus is a matter of contract
 interpretation since Article 7 of the parties' negotiated agreement
 relates to such use.  The record shows only that Article 7 of the
 agreement refers to the use of agency facilities for meetings of the
 Union and not to union solicitation.  Absent a clear and unmistakable
 waiver, a party will not be deemed to have given up a statutory right,
 such as the unit employees' right to solicit involved herein.  Veterans
 Administration Regional Office, Denver, Colorado, 7 FLRA No. 100 (1981);
  Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100
 (1981);  Department of the Air Force, Scott Air Force Base, Illinois, 5
 FLRA No. 2 (1981).
 
    The Respondent alternatively contends that, if the instant case
 involves the employees' right to solicit, the Union's request to show
 the film constituted a special circumstance justifying the Respondent's
 denial of that request.
 
    The solicitation of union membership is a right protected under
 section 7102 of the Statute which guarantees employees "the right to
 form, join or assist any labor organization, or to refrain from such
 activity . . . ," although section 7131(b) of the Statute specifically
 requires that such "solicitation of membership . . . be performed during
 the time the employee is in a nonduty status." Accordingly, the
 Authority has previously concluded that management's conduct in
 maintaining a rule prohibiting employees from soliciting membership
 during their breaks (i.e., while in a "nonduty status") and disciplining
 an employee for violating such rule violated the Statute.  See Oklahoma
 City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
 FLRA No. 32 (1981).  The Authority further concludes that an employee's
 protected right to solicit union membership while in a nonduty status
 may be exercised in a work area where the employees being solicited also
 are in a nonduty status, absent any disruption of the activity's
 operations or any other unusual circumstances.
 
    In the circumstances herein, there is no indication that showing the
 film during the employees' non-work time (i.e., their lunch period) for
 the purpose of soliciting Union membership would have interfered with
 the work of the Activity.  Moreover, the record reveals that employees
 regularly eat, listen to radios, converse among themselves and play
 cards during non-work time in the area where the film would be shown,
 and that solicitation for Union membership as well as distribution of
 Union literature in work areas during non-work time has been permitted
 by the Respondent as a matter of course.  Thus, there is no showing of a
 likelihood of disruption of agency operations.  It is concluded,
 therefore, that the Respondent's prohibition of the requested activity
 constituted unlawful interference with protected union activity in
 violation of section 7116(a)(1) of the Statute.
 
                                   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 Social Security Administration,
 Baltimore, Maryland, 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
 prohibiting employees from showing a film on behalf of Local 1923,
 American Federation of Government Employees, AFL-CIO, the employees'
 exclusive representative, for the purpose of soliciting Union membership
 during non-work time in work areas where employees are on a lunch break
 and there is no disruption of work.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its employees in the exercise of their rights 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) Permit employees to show a film on behalf of Local 1923, American
 Federation of Government Employees, AFL-CIO, the employees' exclusive
 representative, for the purpose of soliciting Union membership during
 non-work time in work areas where employees are on a lunch break and
 there is no disruption of work.
 
    (b) Post at its facility at 6401 Security Boulevard, Baltimore,
 Maryland, copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by the Commissioner, Social Security Administration, 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 said Notices are not
 altered, defaced, or covered by any other material.
 
    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., November 17, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 prohibiting employees from
 showing a film on behalf of Local 1923, American Federation of
 Government Employees, AFL-CIO, the employees' exclusive representative,
 for the purpose of soliciting Union membership during non-work time in
 work areas where employees are on a lunch break and there is no
 disruption of work.  WE WILL NOT in any like or related manner 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.  WE WILL permit employees to show a film on behalf of
 Local 1923, American Federation of Government Employees, AFL-CIO, the
 employees' exclusive representative, for the purpose of soliciting Union
 membership during non-work time in areas where employees are on a lunch
 break and there is no disruption of work.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region III,
 Federal Labor Relations Authority, whose address is:  P.O. Box 33758,
 Washington, D.C. 2033-0758 and whose telephone number is:  (202)
 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel has moved to strike several statements in the
 Respondent's brief on the grounds that those statements directly
 contradict the stipulation.  In any matter submitted directly to the
 Authority for decision based upon a stipulated set of facts, the
 Authority will consider only the facts contained in the stipulation.
 Accordingly, the General Counsel's motion is denied.  See General
 Services Administration, 6 FLRA No. 77 (1981).
 
 
    /2/ The Union's brief was untimely filed and therefore has not been
 considered.
 
 
    /3/ Section 7102 provides:
 
          Sec. 7102.  Employees' rights
 
          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.
 
 
    /4/ Section 7116(a)(1) of the Statute 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 an employee in the
       exercise by the employee of any right under this chapter(.)