20:0020(3)CA - Federal Election Commission and NTEU -- 1985 FLRAdec CA
[ v20 p20 ]
The decision of the Authority follows:
20 FLRA No. 3 FEDERAL ELECTION COMMISSION Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-30508 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. Thereafter, the General Counsel filed exceptions to the Judge's Decision and a supporting brief, and the Respondent filed a response in opposition thereto. 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. Thus, in agreement with the Judge, the Authority concludes that the Respondent did not, in the specific circumstances of this case, violate section 7116(a)(1) of the Statute. /1/ As found by the Judge, the complaint alleges that the Respondent interfered with the protected right of a unit employee, who is also a Union officer, by ordering the employee to remove a poster from a passageway, or hallway, outside the employee's office space. The Authority has held that neither a union nor an employee has a statutory right of access to agency bulletin boards, and that permission to post material may be subject to restrictions or limitations. Department of Defense, Department of the Air Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA 239(1983). The Authority has found, however, that the right of access to a bulletin board may arise from a negotiated agreement or a "past practice" allowing the Union and individuals to post material on bulletin boards. Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, 11 FLRA 77 (1983). /2/ Since unions and employees do not have a statutory right to post material on bulletin boards, if follows that there is no general statutory right to post material in other public areas on agency property. Thus, access to bulletin boards or to other public areas for posting material remains a matter within an agency's discretion to authorize, either by way of provision in the parties' negotiated agreement or as a matter of past practice in allowing such access to its employees. As the Authority finds, in agreement with the Judge, that there is no evidence of an agreement between the parties, or a past practice giving rise to a right of the employees or the Charging Party to post notices in the hallways or passageways of the Respondent's facility, no basis exists to support a finding that the Respondent violated section 7116(a)(1) of the Statute by requiring the removal of such material. /3/ ORDER IT IS ORDERED that the complaint in Case No. 3-CA-30508 be, and it hereby is, dismissed. Issued, Washington, D.C., September 10, 1985 Henry B. Frazier, III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 3-CA-60508 David B. Scholl, Esq. Bruce D. Rosenstein, Esq. For the General Counsel Matthew D. Rennert, Esq. For the Charging Party David S. Orr Colleen Newth For the Respondent 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 Third Region of the Federal Labor Relations Authority by the issuance of a complaint and notice of hearing dated August 31, 1983. The complaint was issued following an investigation of an unfair labor practice charge filed on May 16, 1983 by National Treasury Employees Union, herein referred to as Charging Party, Union, or NTEU. The complaint alleges that the Federal Election Commission, herein the Respondent or FEC, violated section 7116(a)(1) of the Statute when its agent, John D. Gibson, on or about April 7, 1983, ordered a unit employee to remove an NTEU poster which had been affixed to the unit employee's work desk /4/ located in the Reports Analysis Division on the third floor of the building where Respondent is located. In its answer filed September 23, 1983, Respondent denies any statutory violations. A hearing was held in Washington, D.C. 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, Charging Party and the General Counsel 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. The Union is a labor organization within the meaning of section 7103(a)(4) of the Statute. 2. The Respondent is an agency within the meaning of section 7103(a)(3) of the Statute. John D. Gibson is a supervisor and/or management official within the meaning of section 7103(a)(10) and (11) and an agent of Respondent. 3. Kathleen Kenney Brennan, herein referred to as Brennan, /5/ was employed by Respondent from August of 1981 to August of 1983. From July, 1982 until she voluntarily left the Respondent, she worked as a reports analyst under the immediate supervision of Michael Filler. Her third-line supervisor was John Gibson, Assistant Staff Director for Respondent's Reports Analysis Division. As a reports analyst Brennan was responsible for evaluating reports filed by political action committees (PACs) as well as advising representatives of the PACs on their legal reporting obligations. In performing these duties Brennan and her co-workers would regularly come into contact with PAC representatives via telephone and also would meet with such representatives at Respondent's location. 4. Brennan also served as vice-president of the Union's Chapter 204 for approximately a year prior to leaving her job with Respondent. As vice-president of Chapter 204, Brennan's duties were primarily intra-union in nature, although she did have occasion to take part in negotiations in which Gibson also played a role for Respondent. On cross-examination, after being shown her pre-trial affidavit, Brennan admitted she participated in union membership drives. She also admitted that in April 1983 a membership drive was in progress. However, she stated that the membership drive was something separate from the "WE'RE FIGHTING BACK" campaign, which will be discussed later. 5. During the relevant time period Brennan's desk was located on Respondent's third floor in an open area along with desks occupied by three other employees. These four desks were in an area enclosed by partitions except for entrances and exits to other work areas. There were approximately by a total of five such partitioned work areas on Respondent's third floor occupied by about thirty-five bargaining unit employees. Supervisory and managerial employees occupied their own offices. Someone from the public visiting Respondent's third floor during the time period in question would come out of the elevators and most likely go left, the direction opposite Brennan's work area, towards the reception area. Gibson's office is directly adjacent to the reception area. 6. In order to enter Brennan's work area one would go to the right when coming off the elevator, in the direction opposite the reception area, through a set of marked double doors, take three steps, turn left and proceeded down a "hallway" about twelve feet long. Directly at the end of this hallway was Brennan's desk facing anyone coming down the hallway. Her view of the hallway (as well as anyone's view of her) was blocked by a bookcase with four shelves which was placed upon the front of her desk and which also served as a partition. When sitting at her desk, Brennan faced the open book shelves. Thus, the back or outside portion of her bookcase faced the hallway. As a result, any materials or objects affixed to the outside of the bookcase would be in full view of any employee or visitor utilizing this hallway. 7. A visitor seeking the office of Supervisor Michael Filler had a choice of two routes after entering through the double doors. Based upon the testimony of Brennan and Filler (Tr. 18, 33, 58), I conclude that the normal route was to proceed down the twelve foot hallway to Brennan's desk, turn right, and proceed past another employee's desk to Filler's corner office. However, an alternate route was to proceed straight ahead after entering through the double doors and eventually turn left to Filler's corner office. Testimony was taken concerning the frequency of public visitors to Filler's office. Ms. Brennan testified as follows: Q. Did you ever have occasion to meet with any of these people from the public in an around your work area? A. On occasion, Mike Filler would bring people back to his office. These meetings were, I would say, were maybe three, four times a week, but some weeks maybe there wouldn't be any. And they were rare meetings really. And then, you know, very few occasions, Mike might-- Mr. Filler might bring someone back into his office. Q. How many times would you say that you had a meeting with somebody-- that Mr. Filler would meet with somebody from the outside a week or on a monthly basis? A. Well maybe two or three times, but maybe some weeks no one. /6/ Q. And how many people would come at a single time? A. Oh, from one to four. Q. Where was your particular work area in relation to Mr. Filler's office? A. There was a desk next to mine and then Mr. Filler's office was next to that. Q. So when you did have these meetings, these occasional meetings-- when Mr. Filler met with these people from the public on occasion, would those people come by your work area? A. Yes, they would. Therefore, if I accept Brennan's testimony Filler had public visitors 3 or 4 times per week, or 2 or 3 times per week (but not every week), for meetings which were "rare", "very few" or "on occasion." Filler, on the other hand provided a different estimate, stating that he had visitors from outside the Commission on the average of once a month, or 12 to 15 times per year. Obviously there is a substantial difference between the estimates provided by Brennan and Filler. Of the two witnesses, I found Brennan less reliable generally and therefore I conclude that the frequency of visitors was not quite as much as she indicated. Filler, who was only asked one question on this subject, was probably being too conservative, when his testimony is considered in the light of Brennan's. Therefore, I conclude that the frequency of public access was somewhere in between these two accounts. In sum, I find that ingress and egress by the public to Filler's office was sufficiently frequent so that the hallway through this work area may be referred to as a public hallway. Certainly, whatever the actual frequency of visits, the number of visitors was not insubstantial as Brennan's testimony indicates that 1 to 4 persons would visit Filler each time. 8. On April 5, 1983, Brennan affixed a large poster on the back of the bookcase on her desk. The poster is 21 inches high and 16 inches wide. Its color is white and the texture of the paper is glossy. Upon the upper portion of the poster, the following phrase appeared: "WE'RE FIGHTING BACK." The letters were 2 7/8 inches high and printed in block capital letters 2 inches wide. They were colored navy blue. On the lower portion appeared the following: "Join the National Treasury Employees Union." These letters were 3/4 of an inch high and 1/2 inch wide. They were colored bright red. In addition to the poster, there were some other items on the back of the bookcases, such as cartoons, comic strips and newspaper clippings which had been placed there by Brennan or her co-workers. There is no evidence, however, that Union posters had ever been posted there in the past or, for that matter, anywhere except on bulletin boards. /7/ 9. In the afternoon of April 7, 1983, Mr. Gibson approached Brennan at her desk and asked her to remove the poster in question from the back of the bookshelf. She asked why and was told that the poster appeared to be soliciting membership and that this was not an appropriate place for it to be posted because under Respondent's contract with the Union there was a specific article addressing the policy on posting of Union literature. Brennan then proceeded to explain to Gibson that other items of a solicitous nature had been posted by employees throughout the work area, such as car sales, van pools and raffles, and even if he found her poster to be solicitous it was no different from these items or the other items on the back of the bookshelf. By this time Gibson appeared to be somewhat agitated, according to Brennan, and he tore down the other items on the back of the bookshelf and threw them in a trash can while Brennan simultaneously took the poster down. This conversation lasted about five minutes. 10. Just prior to his conversation with Brennan on April 7th, Gibson also requested another employee, Pam Brown, to remove the same poster from a wall in her work area. However, he did not remain to see whether she took it down. When he returned on August 11 and saw that it was still posted, he asked her to take it down and she did. This incident was not alleged in the complaint. Pam Brown was also a Union Vice-President. Union President Phillip Kellett also displayed the same poster on the door of his seventh floor office sometime in late March or early April 1983. When the door was closed, the poster faced the hallway. Kellett was not under Gibson's supervision and the evidence does not establish that Gibson was aware of this poster. Kellett testified, however, that other management officials including his supervisor, the General Counsel and David Orr (Director of Personnel and Labor Relations) came to his officials and "must" have seen it. The poster remained on his door until he left the agency in December, 1983. According to Kellett, another Union official, Steve Sanford, displayed the poster in an area just outside of his office on the fourth floor. Gibson was not aware of this. What we have here, then, is not evidence of a past practice of condonation, but rather, inconsistent action by supervisory officials concerning the same poster; i.e. the poster involved herein. 11. The parties' collective bargaining agreement provides as follows: ARTICLE 9 UNION RIGHTS TO BULLETIN BOARD AND LITERATURE DISTRIBUTION Section 1. The Employer shall make available to the Union one-third of existing bulletin board space for its exclusive use, limited to one such bulletin board per floor. The locked board, currently existing on the fifth floor and used for the posting of vacancy announcements, will continue to be used exclusively for the purpose of the posting of such announcements, and will not be available to the Union. Section 2. The Union may distribute literature in work areas. The Union representatives distributing such literature will, however, do so only during their non-work time, and will not interfere with Agency business. The Union is responsible to assure that litter does not result from its distribution of such literature. No notices may be affixed to painted surfaces. Section 3. The Union shall not post nor permit to be posted material which is libelous or slanderous towards any official of the Federal Government. 12. Later on April 7, Gibson was confronted by Union President Kellett who was defiantly wearing the NTEU poster on his chest and contending that Brennan's bookcase was a "bulletin board." I agree with Respondent that the bookcase was not a bulletin board. Even Brennan conceded that if she were trying to sell a car or some other object, she would post her announcement near the elevators, presumably referring to the bulletin board. According to Gibson there is a bulletin board on the third floor and this is where Union literature is to be posted. 13. The credited testimony of Filler discloses that Respondent would not permit employees to post pornographic materials and, due to the function of the FEC, items supporting political candidates. However, Gibson conceded-- quite readily-- that Respondent does not have a policy which prohibits employees from posting non-work related materials in their work areas. The unrebutted testimony of Brennan indicates that Respondent has over a period of time permitted employees to post such things as movie posters, airline travel posters, clothing advertisements, union buttons, cartoons, newspaper clippings and notices of raffles, van pools and the selling of automobiles. According to Brennan these items might be posted anywhere, including the partitions used to separate work areas. Therefore, her bookcase was just one of many places where such items might be observed. In my opinion, the NTEU poster which is the subject of this case, was not located in Brennan's work area. From where she sat, she could not see the poster because it was on the opposite side of the bookcase facing the hallway. In fact, her bookcase served the very same purpose as the partition which separated work sites from the hallway. In my opinion, the poster was located in a hallway used by employees and the public alike. Moreover, since it was directly at the end of a 12 foot hallway it was particularly visible to anyone coming down this hallway enroute to Filler's office. 14. Union President Kellett testified that the National Headquarters Office of the NTEU was undertaking "a legislative grass roots, sort of lobbying program." Brennan testified that the "WE'RE FIGHTING BACK" campaign had to do with government employees speaking out against administrative policies including some key pieces of pending legislation. Neither Gibson nor Filler had heard of the campaign. Filler is a former steward and Union Vice-President. Except for the altogether too brief testimony of Kellett and Brennan, there is really no evidence as to what the campaign consisted of, where it was taking place, or how long it lasted. In my opinion, the phrase "WE'RE FIGHTING BACK" on the poster is not fully nor satisfactorily explained. 15. There is no evidence that Brennan, at the time this notice was posted, was engaged in the solicitation of employees to become Union members. The credited testimony of Gibson does reveal that previously, in February, he found Brennan distributing union literature during working hours in a work area. From this it does not follow, however, that Brennan intended to personally engage in the solicitation of union membership in April when the poster was placed on the bookcase. Nor is there evidence that the poster, itself, resulted in any internal union business being conducted while employees were in a duty status. U.S. Customs Service, 13 FLRA No. 31, 13 FLRA 7. I must, therefore, reject Respondent's contention that there was sufficient basis for Gibson to conclude that the poster itself "would lead to on-the-clock solicitation." Discussion and Conclusions of Law A threshold question is whether I should decline jurisdiction on the ground that the Union should have filed a grievance because this matter involves an arguable interpretation of the contract. Social Security Administration, 15 FLRA No. 132, Harry S. Truman Memorial Veterans Hospital, 11 FLRA No. 90; Food Safety and Quality Service, 7 FLRA No. 103, 7 FLRA 665; and Oklahoma City Air Logistics Center, Tinker Air Force Base, 3 FLRA No. 82, 3 FLRA 512. From my reading of the cases it would seem that where a case involves both a question of contract interpretation and an allegation that a statutory right was violated, the Union has the discretion under section 7116(d) of the Statute to utilize either procedure. Federal Aviation Administration, 15 FLRA No. 135 (August 28, 1984). Since the General Counsel and Charging Party view this case as one involving Brennan's protected right to display a poster showing her support for the Union, I conclude that this case is properly before me. Further, I note that the Charging Party, based upon its assumption that Brennan (as an employee) had a statutory right to do what she did, argues that the contract did not clearly and unmistakeably waive such right. In reaching the conclusions discussed more fully below, I find that Brennan, whether acting as an individual employee or as a Union agent, did not have a protected right to affix the poster on the back of her bookcase. Therefore, there was no statutory right to be waived in the contract. The Authority has held that neither a Union nor an employee have a statutory right to the use of bulletin boards. Department of Defense, Homestead Air Force Base, 13 FLRA No. 41, 13 FLRA 239. It seems to me that if they do not have the statutory right to use bulletin boards, they certainly do not have the unfettered right to post notices or posters elsewhere on an agency's premises. Before discussing the cases cited by the parties, some preliminary findings and conclusions are warranted. The only Union poster which is the subject of this proceeding is the one displayed by Union Vice President Kathleen Kenney Brennan. Similar posters were displayed by only three other persons, each of whom were a Union official. Accordingly, I conclude that in affixing the poster to the back of the bookcase Brennan was acting in her capacity as a Union official and acting as its agent. The poster itself contained two phrases (1) "WE'RE FIGHTING BACK." and (2) "Joint the National Treasury Employees Union." I am not satisfied, based upon the paucity of evidence in the record, that there even was a "fighting back" campaign, or what it really amounted to or consisted of. However, assuming the existence of such a campaign, the placement of the language on the poster is, at best, ambiguous. It does not clearly convey one message only; i.e. joint the Union in its "Fighting Back" campaign. On the contrary, the poster language is just as easily susceptible to an interpretation that the Union itself is soliciting employees to join and become members of the NTEU. This latter interpretation is especially supported by the fact that the Union was conducting a membership drive at the same time. /8/ It also strains credulity to hold that Brennan's poster was merely her personal expression of support for the "campaign". As noted by Respondent in its brief, it's a strange coincidence that the only employees who found it necessary to express their personal feelings were those NTEU officials who were responsible for the success of the simultaneous membership drive. Moreover, one of Brennan's duties as Vice-President was the recruitment of new members. I conclude that the preparation and distribution of the posters was orchestrated by the Union as part of its membership drive. Essentially, then, it is the Union's conduct which is at issue. The poster in question was not placed within the work area of Brennan. It was not visible to her. Rather, it was located on the back of her bookcase which, like the adjacent partitions, served as a wall separating the corridor from the work areas. Therefore, the poster was being displayed in a corridor which was used primarily by employees, but also by members of the public who were enroute to Filler's office. Not only was it located in the corridor but it was in a very prominent position where it couldn't be missed, especially considering its large size (21 inches X 16 inches). While it is true that the public's use of the hallway may not have been on a daily basis, such use was on a fairly regular basis with 1 to 4 people coming each time, as indicated by Brennan's own testimony. In my view, it is these facts that constitute the kind of "special circumstances" more fully discussed in the cases cited to me by the parties. As a starting point for their legal argument, both the General Counsel and the Charging Party cite Republic Aviation, /9/ an NLRB decision adopted by the Supreme Court. There, the NLRB upheld the right of employees to wear union steward buttons, absent special circumstances justifying a rule prohibiting such activity. Contrary to both the General Counsel and the Charging Party, Republic Aviation did not involve the display of union insignia. Rather, it has been in other NLRB decisions (Union's brief, fn. 12) that wearing insignia has been extended to displaying insignia. But even those cases are confined to shirts, clothes, hats, coffee cups, tool boxes and lockers of the employee. Secondly, the Authority has not specifically adopted Republic Aviation, in toto. That case not only involved wearing buttons, but also involved soliciting union membership and distributing union literature. On these latter subjects, the Authority's views are apparently being explicated on a case-by-case basis. I do agree, however, that the Authority has held that "in the absence of special circumstances, employees have a right under the Statute to wear union insignia at the work place." United States Army Support Command, Fort Shafter, Hawaii, 3 FLRA No. 121, 3 FLRA 796(1980). Moreover, its holding in Fort Shafter was recently reaffirmed in Federal Aviation Administration, Spokane Tower/Approach Control, 15 FLRA No. 135, a case involved the wearing of T-shirts containing certain types of union emblems and insignia. In my opinion the foregoing cases involving the wearing of union buttons or insignia are inapplicable to the present case. Assuming, however, that the Republic Aviation and Fort Shafter line of cases is applicable here, I would-- as noted above-- find special circumstances existing which warranted Respondent's action in removing the poster. The General Counsel and the Charging Party seems to believe that the Authority has extended its Fort Shafter holding concerning the wearing of union insignia to the display of union insignia by its decision in U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA No. 3, 13 FLRA 7(1983). In that case an employee displayed a "small, unobtrusive" sign on her desk stating "The Steward Is In." Although the judge discussed at length Republic Aviation and its progeny and found "no special circumstances warranting removal of the sign", the Authority in its decision did not address the Respondent's contentions and the Judge's analysis. Rather, it seems to me, the Authority seemed to treat that as a "solicitation" case by stating that "the Authority specifically notes the lack of evidence to sustain an allegation that the sign, itself, resulted in any internal union business being conducted while employees were in a duty status. See Section 7131(b) of the Statute." In my opinion, Customs is distinguishable from the instant case in the following respects: (1) the steward's sign was located on her desk and clearly was confined to her work area; it wasn't located out in the corridor or hallway used by the public; (2) the sign's purpose was to identify the employee as a steward; the sign itself did not appear to be intended to solicit union membership; (3) the sign was small and unobtrusive; it was not like the large glossy poster in this case; and (4) Respondent herein contends the existing contract restricts the placement of such posters to bulletin boards. Also cited by the General Counsel is the Authority's decision in Social Security Administration, 13 FLRA No. 69, 13 FLRA 409(1983) wherein the union was permitted to show a film strip with accompanying sound track in a work area during non-work time as part of its membership recruitment effort. In my view, this case comes closest to supporting the General Counsel's position, because the poster is, in my view, a tool for solicitation of membership. In other words, if a union can show a film strip to a captive audience (employees eating lunch at their desks), one might ask what's the harm of putting up a poster on the agency's premises to accomplish the same objective. The answer, I believe, is that the film strip showing was a single event of limited duration during non-work time. The display of a membership recruiting poster is a continuing act occurring during both work and non-work time, not confined to the employees work area, and in a hallway to which the public has access. Further, this case involves the use of government facilities and a contract provision dealing specifically with the matter. There is no question, of course, that the solicitation of union membership is a right protected by the Statute. However, the Authority has noted in the SSA and Customs decisions that section 7131(b) of the Statute specifically requires that "such solicitation . . . be performed during the time the employee is in a nonduty status." Respondent argues that "what we have here is a large, conspicuous poster, the primary purpose of which is to serve as a tool to solicit new members." Given the fact that Brennan's duties included recruitment, the fact that a membership drive was in progress, and the location of this large, glossy poster in a prominent location at the end of a hallway used by both employees and the public, Respondent argues that it is more reasonable to conclude that Brennan's display of the poster is not protected. I agree. In addition to the foregoing reason, I rely on the contractual language of Article 9 Section 1 which requires the employer to "make available to the Union one-third of existing bulletin board space for its exclusive use." Gibson interpreted this as restricting the Union from placing posters elsewhere. I find that Gibson's interpretation was reasonable and, therefore, he acted reasonably in requiring Brennan to remove the poster. To reach a different conclusion, I would have to hold that the Union had unfettered authority to place posters anywhere it chooses on the employer's premises unless specifically restricted by the terms of the contract. I am not prepared to go that far, especially in the absence of a past practice conclusively establishing that Respondent permitted Union literature to be posted in places other than on the specified bulletin board space. Accordingly, in the circumstances of this case, Gibson's directive to remove the poster was an exercise of Respondent's right to enforce the terms of the contract. /10/ As noted previously, the Union could have filed a grievance, but it elected to file an unfair labor practice charge instead and the Authority has upheld its right to make such a choice. /11/ For the foregoing reasons, I find and conclude that the Federal Election Commission has not violated section 7116(a)(1) of the Statute. Therefore, I recommend that the Authority adopt the following: ORDER The Complaint in Case No. 3-CA-30508 be, and it hereby is, dismissed. FRANCIS E. DOWD Administrative Law Judge Dated: September 24, 1984 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/ See also U.S. Department of Justice, Federal Prison System, Federal Correctional Institution, Milan, Michigan, 17 FLRA No. 138(1985), wherein the Authority found a violation of section 7116(a)(1) of the Statute when the Activity removed, albeit inadvertently, union material from a part of the bulletin board which the Union had permission to use pursuant to the parties' negotiated agreement. In this regard, the Authority adopted the Judge's conclusion that the Activity's conduct in the circumstances of that case would reasonably tend to interfere with and discourage the employees' protected right to engage in activities on behalf of the Union. /3/ In agreement with the Judge, we find the Authority's decision in U.S. Customs Service, Region VIII, San Francisco, California, 13 FLRA 7(1983), inapplicable herein. Thus, in the Customs case, the Authority adopted a Judge's finding that the Respondent violated section 7116(a)(1) of the Statute by requiring an employee to remove from her desk a small sign stating "the Steward is in." The Judge in Customs reached such conclusion by treating the case as analogous to an employee's wearing union insignia. In adopting the Judge's finding in Customs, the Authority noted further the absence of evidence that the sign was an improper solicitation to conduct internal union business while employees were in a duty status. As noted above, the instant case is distinguishable from Customs as it involves an issue concerning the right of an employee or a union to post union material in a public passageway without permission of the Activity. /4/ The evidence offered at the hearing shows that the poster was not affixed to the desk itself but, rather, was affixed to the back of a bookcase which was placed upon the employee's desk. /5/ Ms. Brennan's full name appears as she identified herself for the record. However, during the hearing and in two of the briefs she is referred to as Ms. Kenney, her name at all times material herein. /6/ I interpret this response as meaning two or three times per week, but maybe some weeks no one. This interpretation is consistent with Brennan's answer to the preceding questions. /7/ I am inclined to find, as contended by Respondent, that the evidence is insufficient to conclude that a past practice existed whereby Respondent condoned the use of places other than bulletin boards for the display of union posters soliciting union membership. /8/ Where the legend on a poster is ambiguous and susceptible to more than one interpretation, the person or organization that prepared the poster can hardly complain when a fact-finder places more emphasis on the objective evidence rather than the Union's self-serving interpretation as to what message was intended to be conveyed by the poster. At best, this was a poster with a dual purpose. /9/ Republic Aviation Corp. v. NLRB, 324 U.S. 793, 16 LRRM 620(1945). /10/ McGurran v. Veterans Administration, 665 F.2d 321(1981) where the 10th Circuit Court of Appeals affirmed enforcement of a similar contract provision and found no First Amendment violation by the agency's decision to order removal of posters displayed on places other than the union bulletin board. /11/ Indeed, if the Union had filed a grievance there would be two issues to resolve: (1) whether Article 9, Section 1 limited the Union to bulletin board space only, and (2) whether the back of a bookcase serving as a partition separating a work area from a corridor or hallway is a "painted surface" within the meaning of Article 9, Section 2.