15:0977(182)CA - Bureau of Engraving and Printing and NTEU -- 1984 FLRAdec CA

[ v15 p977 ]
The decision of the Authority follows:

 15 FLRA No. 182
 Charging Party
                                            Case No. 3-CA-20435
                            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 practice 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 and a brief in
 support thereof.  /1A/
    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 recommended Order.
    IT IS ORDERED that the complaint in Case No. 3-CA-20435 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., August 31, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Charles H. Palmer, Jr.
    Joanne W. Simms
    For Respondent
    William P. Milton, Jr.
    For Charging Party
    Carolyn J. Dixon, Esq.
    Susan Shinkman, Esq.
    For General Counsel, FLRA
    Administrative Law Judge
                           Statement of the Case
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the Statute),
 and the Rules and Regulations of the Federal Labor Relations Authority
 (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410, et seq.
    A charge was filed on March 22, 1982 by National Treasury Employees
 Union (hereinafter referred to as the Union and/or NTEU), against Bureau
 of Engraving and Printing (hereinafter called Respondent and/or BEP).
 Pursuant to the above described charge, on July 16, 1982, the General
 Counsel of the FLRA, by the Regional Director for Region 3, issued a
 Complaint and Notice of Hearing alleging that Respondent violated
 Section 7116(a)(1) of the Statute by engaging in surveillance when its
 agent took notes of employees engaged in lawful picketing on behalf of
 the Union.  Respondent filed an Answer in which it denied that it had
 violated the Statute.
    A hearing was conducted before the undersigned in Washington, D.C.
 General Counsel of the FLRA, BEP and NTEU were represented and afforded
 full opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence and to argue orally.  Post hearing briefs were filed
 and have been fully considered.
    Based upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and my evaluation of the evidence, I make
 the following:
                             Findings of Fact
    BEP is responsible for the printing of currency, postage stamps, and
 other securities for the U.S. Government.  BEP is located in two
 buildings, the Main Building and the Annex on 14th Street in Washington,
 D.C.  The Main Building is across 14th Street from the Annex.
 Respondent employees approximately 2,500 persons.  The employees are
 divided into approximately 17 separate collective bargaining units
 represented by 15 separate unions.  NTEU represents a unit of
 approximately 275 BEP clerical and technical employees.
    On September 16, 1981 William P. Milton, Jr., an NTEU National Field
 Representative, was escorted from one of BEP's buildings because his
 conduct during negotiations was allegedly disruptive.  On September 18,
 1981 Milton was arrested and charged with disturbing the peace by
 assaulting a member of the BEP Police Force when Milton allegedly tried
 to force his way into one of BEP's buildings.  /1/
    During the mornings of September 24 and 25, 1981 NTEU distributed
 leaflets in front of the BEP building.  The leaflets and a notice posted
 on the NTEU bulletin board stated that there would be picketing in front
 of the Annex on September 25 at 11:15 a.m. to 1:00 p.m. to protest the
 arrest of Milton.
    During the morning of September 25, 1981 BEP Labor Relations Officer
 Richard Hamilton and number of other BEP officials met and decided upon
 the procedures to be followed during the picketing.  It was decided to
 have extra security people assigned to the doors, under the supervision
 of Inspector Tuma, and Hamilton was assigned to monitor the picketing
 and to keep records in case any untoward event occurred.
    On September 25, 1981, commencing at about 11:15 a.m., the Union
 picketed BEP.  The picketing took place on the sidewalk in front of the
 entrance to the Annex.  About eight BEP employees and other NTEU
 officials engaged in the picketing at various times between 11:15 a.m.
 and 1:00 p.m.
    From the sidewalk there are about four stairs that lead to a
 relatively broad landing in front of the doors into the Annex.  The
 entrance to the Annex consists of three sets of double doors.  /2/ The
 center set is the actual entrance and has, inside, all the necessary
 security paraphernalia.  /3/ Facing the entrance from the outside, the
 set of doors to the left is closed to the outside and the inside foyer
 is outfitted with storage lockers.  The set of doors on the right,
 although not normally used as an entrance, is available for such use by
 employees.  Inside the building, at each set of double doors is an
 inside foyer which, through an other set of double doors, leads to the
 building lobby.
    In the building lobby, in front of the three sets of double doors at
 the start of the picketing, a number of BEP Guards were gathered under
 the supervision of Inspector Tuma.
    Hamilton stood inside the small foyer between the right set of
 outside double doors and the inner set of double doors.  /4/ Hamilton
 had a notebook in which he noted the language of the signs, the things
 the pickets were saying and the identity of the pickets, which included
 a number of BEP employees.  Hamilton, although he occasionally moved
 throughout the lobby area, observed the picketing for the full time it
 was conducted.  Although not conspicuous, Hamilton was at least, on
 occasion, observable and observed by employees.
    The security arrangements, including Hamilton's observing and taking
 notes, were made because BEP feared, in light of what had occurred
 earlier with respect to Milton, that NTEU representatives might attempt
 to enter the building and/or demonstrate on BEP property.
                        Discussion and Conclusions
    General Counsel of the FLRA urges that Respondent, by its agent
 Hamilton, violated Section 7116(a)(1) of the Statute /5/ because
 Hamilton's conduct, in observing and taking notes concerning the
 picketing, interfered with the employees' right to engage in
 informational picketing on behalf of the Union, undisputedly a protected
 activity.  General Counsel of the FLRA, relying on Department of the
 Army, Fort Bragg Schools, 3 FLRA 363 (1980) (hereinafter call the Fort
 Bragg Schools Case) urges, rather broadly, that surveillance of any
 protected activity by Respondent, has a tendency to interfere with
 employees' rights.  The Fort Bragg Schools Case, supra dealt with the
 presence of school principals at four "union informational meetings held
 for teachers." The Administrative Law Judge held that it was reasonable
 to infer that some employees might have felt inhibited by the presence
 of their supervisors from showing an interest and asking questions.  The
 Administrative Law Judge stated, "The meetings in question were designed
 and advertised for teachers, not principals, therefore, the awkward
 presence of the principals tended to highlight their anxiety about union
 organization." Fort Bragg Schools Case, supra at 376.
    The subject case involves management observation and surveillance,
 not of a private union meeting aimed at employees, but rather a public
 union demonstration designed to be observed and seen.  The very purpose
 of the picketing was to demonstrate and pronounce publicly the Union's
 position and for employees to publicly demonstrate their support.  The
 very nature of such picketing is to be seen and to make one's position
 known publicly.  This public nature is what distinguishes picketing from
 union meetings.  Obviously, surveillance of union meetings between
 employees, which by their nature are private, might reasonably be
 foreseen to have a tendency to inhibit employees from attending and
 participating in such meetings.  However, the very public nature of
 picketing and its purpose to make a public statement of support,
 involves employees being seen and identified.  Accordingly, observation
 and surveillance by management would not reasonably tend to inhibit or
 interfere with employees engaging in such activity.  In fact observation
 and identification is a very purpose of the activity.  To conclude that
 the entire world may observe, except management, would be unrealistic
 and, naive.  When employees choose to make a public statement and to
 walk a picket line it must be anticipated that they will be seen and
 identified by management officials;  it is in the very nature of
    The General Counsel of the FLRA urges that the cases in the private
 sector, decided by the National Labor Relations Board (NLRB), are
 relevant in interpreting the Statute with respect to the public sector.
 General Counsel of the FLRA relies upon Flambeau Plastics Corporation,
 167 NLRB 735 (1967), enfd. 401 F.2d 128, 136 (C.A.7, 1968), Cert. denied
 393 U.S. 1019 (1969);  and Glomac Plastics, Inc., 234 NLRB 1309 (1978).
 In these cases the NLRB held that photographing peaceful picketing by
 the employer, tended to interfere with employees' rights to engage in
 protected activity.  /6/ In Flambeau Plastics Corporation, supra, the
 employer stated that it was keeping a pictorial record in the event that
 "something did happen." The NLRB rejected this conjecture that something
 might happen when balanced against a tendency, which the NLRB saw that
 conduct of having, of interfering with employees' rights to picket.
    In the foregoing cases involving photographing of peaceful employee
 picketing /7/ the NLRB concluded that such conduct, by its very nature,
 inhibited and restrained employees from picketing and thus interfered
 with the employees' rights to engage in a concerted activity protected
 by the National Labor Relations Act.  Thus such conduct by the employer,
 absent more, violated Section 8(a)(1) of the Act.  /8/ The NLRB placed
 the burden upon the employer to justify the photographing sufficiently
 to warrant such an interference with employees' protected activity.
    In United States Steel Corporation, 255 NLRB No. 164, 107 LRRM 1097
 (1981), enfd. denied Sub Nom. United States Steel Corporation v.
 National Labor Relations Board, . . . F.2d . . . , 110 LRRM 2902 (3rd
 Cir., 1982), (hereinafter called the U.S. Steel Case).  The NLRB held
 that U.S. Steel violated Section 8(a)(1) of the Act when it photographed
 employees who were engaged in a public demonstration to protest an
 alleged lack of locker room facilities for female employees.  The NLRB,
 in finding that the employer violated Section 8(a)(1) of the Act,
 concluded " . . . it is well established that, absent legitimate
 justification, an employer's photographing of its employees a while they
 are engaged in protected concerted activity constitutes unlawful
 surveillance." /9/ The NLRB concluded further " . . . Respondent has
 failed to establish any legitimate justification for its actions . . .
 it is well settled that 'purely anticipatory photographing of peaceful
 picketing in the event something 'might' happen does not justify (an
 employer's) conduct when balanced against the tendency of that conduct
 to interfere with the employees' right to engage in concerted activity.'
 Glomac Plastics, Inc., supra." /10/
    The U.S. Court of Appeals for the Third Circuit refused to enforce
 the NLRB Order in the U.S. Steel Case /11/ and in so doing specifically
 rejected the NLRB's per se rule.  The Court concluded that whether an
 employer's conduct would have a reasonable tendency to intimidate or
 coerce employees in the exercise of protected rights should be evaluated
 under the circumstances of the case and not be the subject of some per
 se rule.  The Court then evaluated the circumstances there present and
 concluded under those circumstances "petitioner's conduct did not
 reasonably tend to interfere with, restrain, or coerce employees in the
 exercise of their Section 7 rights." U.S. Steel Case, 110 LRRM 2902,
    The Third Circuit, with its broad language, seemed to reject all NLRB
 per se rules, whereas the Supreme Court held that the NLRB could create
 a presumption that a particular class of conduct is coerce under Section
 8(a)(1) of the Act, and once the NLRB General Counsel proved that such
 conduct had occurred, the employer could avoid liability only if it
 could adequately justify its conduct.  Republic Aviation Corp. v. NLRB,
 324 U.S. 793, 16 LRRM 620 (1945).
    The NLRB in applying its per se rule treats photographing picketing,
 that is engaging in surveillance of picketing, in the same manner it
 treats the surveillance of any other protected concerted activity.
 However, as noted above in the discussion of the applicability of the
 Fort Bragg Schools Case, supra, all protected concerted activity is not
 the same and clearly observing and photographing employees engaged in
 picketing or other public demonstration would not reasonably tend to
 interfere with employees' rights to the same extent as photographing and
 observing employees attending private organizational meeting in an
 employees' home.  /12/
    In agreement with the Third Circuit Court of Appeals decision in the
 U.S. Steel Case, supra, I conclude that observing and photographing
 employees engaged in picketing does not per se interfere with the
 employees' rights to engage in such a protected activity.  In so
 concluding I rely on the public nature of the conduct and that the very
 aim of the picketing is to be observed by the public, presumably
 including the employer, and to make a public statement.  In such
 circumstances therefore, I reject the NLRB per se rule and conclude each
 such case must be judged in light of its own circumstances.  Therefore,
 the General Counsel of the FLRA must establish not only that the Agency
 photographed or observed pickets, but, additionally that the
 circumstances were such that such photographing or observing would
 reasonably tend to interfere with or restrain employees from engaging in
 the picketing.  In the subject case the General Counsel of the FLRA
 failed to establish that any such circumstances were present.  /13/
 Accordingly, I conclude that the record in the subject case fails to
 establish that BEP violated Section 7116(a)(1) of the Statute.  /14/
    Having concluded that BEP has not violated Section 7116(a)(1) of the
 Statute, I recommend that the FLRA issue the following:
    It is hereby Ordered that the Complaint in Case No. 3-CA-20435 be and
 hereby is, dismissed.
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
    Dated:  December 27, 1982
    Washington, DC
 --------------- FOOTNOTES$ ---------------
    /1A/ The Charging Party's exceptions were not timely filed and
 therefore have not been considered.
    /1/ All charges against Milton have been dropped.  A civil action
 against BEP for false arrest is apparently still pending and settlement
 talks are under way.
    /2/ Each door is a relatively large metal door with four large
 windows, one above the other.  Each window is covered by a metal grill.
    /3/ Security is necessary because of the nature of the items printed
 by BEP.
    /4/ The interior glass double doors were kept closed most of the
 time.  The exterior metal doors were kept closed, but were opened, on
 occasion, as employees entered and left the building.
    /5/ Section 7116(a)(1) of the Statute provides:
          "(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;  . . . .
    /6/ Cf. Crown Cork and Seal Co., Inc., 254 NLRB No. 174 (1980) in
 which the NLRB found that the employer's note taking of a union
 solicitation interfered with employees' protected rights.  The NLRB
 found that the employer had not adequately set forth any justification
 of its conduct and the note taking was found to inhibit employee
 communication with the union.
    /7/ Observing pickets and taking notes is, for the purposes of
 analysis of the subject case, indistinguishable from photographing
 pickets.  The effects of recording picketing by taking notes or
 photographs are substantially identical.
    /8/ Section 8(a)(1), 29 U.S.C. 158(a)(1) (1976), provides:
          (a) It shall be an unfair labor practice for an employer--
          (1) to interfere with, restrain, or coerce employees in the
       exercise of the right guaranteed in section 157 of this title
       (i.e. section 7 of the Act). . . .
    /9/ U.S. Steel Case, 107 LRRM 1097, 1098 (1981).
    /10/ U.S. Steel Case, supra.
    /11/ U.S. Steel Case, . . . F.2d . . ., 110 LRRM 2902 (3rd Cir.
    /12/ Similarly, an employer's observing and photographing employees
 making statements on television would have even a different affect.
    /13/ E.g. Union Animus, prior unfair labor practices, threats, etc.
 Further employer surveillance may be used as evidence of employer
 knowledge that employees had engaged in the picketing in subsequent
 unfair labor practice cases.
    /14/ Even if the NLRB per se rule were adopted by the FLRA and made
 applicable, under the Statute, to the public sector, I conclude that BEP
 was justified on September 25, 1981 in observing and taking notes in
 anticipation of a possible incident.  In this regard it is noted that
 NTEU Representative Milton had been ejected from a BEP building on
 September 16, 1981 and had been arrested and charged with disturbing the
 peace by assaulting a BEP guard on September 18, 1981, when Milton tried
 to force his way into a BEP building.  The picketing was to protest
 these two incidents involving Milton.  In such circumstances BEP could
 reasonably anticipate that the picketing could involve some untoward
 incident and BEP was therefore justified in observing the picketing and
 taking notes.