21:0748(93)CA - HHS, SSA SE Program Service Center and Barry Nelson -- 1986 FLRAdec CA
[ v21 p748 ]
The decision of the Authority follows:
21 FLRA No. 93 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION SOUTHEASTERN PROGRAM SERVICE CENTER Respondent and BARRY NELSON, An Individual Charging Party Case No. 4-CA-20273 DECISION AND 0RDER I. Statement of the Case This unfair labor practice case is before the Authority, in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. Briefs for the Authority's consideration were filed by the Respondent, the General Counsel and the Charging Party, Barry Nelson. The complaint alleges that the Respondent violated Section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by promulgating and maintaining a rule or directive that unlawfully interfered with the rights of its employees, protected by Section 7102 of the Statute /1/ to engage in campaigning on behalf of candidates in an internal union election during non-work time in non-work areas. II. The Facts The American Federation of Government Employees, AFL-CIO (National Council of Social Security Payment Center Locals) (the Union), has been the exclusive representative of a unit of Social Security Administration employees appropriate for the purposes of collective bargaining, including employees of the Respondent Southeastern Program Service Center. On or about January 20, 1982, the Union Election Committee Chairman met with the Respondent's Labor Relations Officer for the purpose of arriving at rules and policies governing the conduct of nominees, campaign workers and other employees who were to be actively involved in campaigning in an upcoming election for selection of the Union's convention delegates. A written agreement was entered into by the Respondent and the Union and a copy was given to various officers and members of the Union in the form of an "office Memorandum" on January 21, 1982. Some of the electioneering rules contained in the agreement were as follows: Candidates may personally campaign in the cafeteria providing they are on their lunch break or approved leave. No campaigning is permitted in the main lobby or the pod entrance and exit areas. No posters, display or campaign literature of any type, is permitted in the main lobby, pod areas or cafeteria. No campaign literature is to be attached to vehicles, parked in program service center premises. On election day, February 1, 1982, employees must vote only during nonduty hours. Morning and afternoon breaks are considered duty hours. Any candidate or employee violating any of the above rules may have his/her campaign and/or distribution privileges revoked and may be subject to appropriate discriplinary action. III. The Issues A. The first issue is whether employees campaigning on behalf of candidates in an internal union election should have the same right to campaign, that is, to solicit support of candidates and to distribute campaign literature, during non-work time in non-work areas at their place of employment, as do employees during elections to determine questions concerning representation. B. The second issue is whether, even if the employees have such a right, the Respondent should not be found in violation of that right by promulgating and maintaining a restrictive campaigning rule or directive, because the Union here had signed an agreement with regard to restrictions placed on employees by the Respondent. IV. Positions of the Parties The Charging Party and the General Counsel argue that employees have the statutory right to campaign and solicit support for candidates in internal union matters without interference of any sort from management, so long as that activity is on non-work time in non-work areas. Further, they argue that this right may not be waived by any labor organization, even one that represents them at the work place. Thus, they argue that the restrictions placed on employees by management were unlawful. The Respondent argues that the entire matter is an internal union matter that is not in the nature of an unfair labor practice, and that the restrictions in any event were agreed to by the employees' exclusive representative and the agreement should be honored by the Authority. V. Analysis A. The right to campaign The Authority has previously held that the right guaranteed employees under Section 7102 of the Statute to " . . . form, join, or assist any labor organization . . . ." encompasses the right of employees to distribute literature "in non-work areas during non-work time." General Services Administration, 9 FLRA 213 (1982); Internal Revenue Service, North Atlantic Service Center Andover, Massachusetts, 7 FLRA 596 (1982). The Authority has also determined that the right of employees to engage in solicitation on behalf of a labor organization during non-work time is similarly protected by the Statute, Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981), and that such right may even extend to solicitation in work areas (not here involved) absent any disruption of the Activity's operations or other unusual circumstances. Social Security Administration, 13 FLRA 409 (1983). In the Authority's view, Section 7102 of the Statute affords employees the same right to engage in solicitation and distribution of literature on behalf of candidates for union office as they would have if they were acting on behalf of or in opposition in representation by a labor organization generally. In this regard, the identity of the officers and representatives of a labor organization substantially influences the character and nature of the labor organization as a collective bargaining agent, and the right to solicit or distribute literature on behalf of candidates for or against an exclusive representative. An employer violates the protected rights of employees under Section 7102, and therefore also Section 7116(a)(1) of the Statute, when in the course of an intra-union election it enforces overly broad no-solicitation/no-distribution rules, absent a showing of disruption of agency operations or unusual circumstances. /2/ There is no evidence in this case that the rules imposed by management were necessary to protect against disruption of the agency's operations and no evidence of any unusual circumstances. Further, for the reasons stated above, the Respondent's argument that this matter is not in the nature of an unfair labor practice must be rejected. B. The effect of the Respondent/Union agreement The fact that the restrictions placed upon employees by management were embodied in a bilateral agreement is no defense. /3/ The right to solicit and to distribute literature on subjects of statutorily protected interests at proper times and places is one guaranteed to employees by the Statute, which the bargaining representative has no authority to waive. /4/ VI. Conclusion The Authority has considered all the facts and circumstances of this case, including the positions of the parties. The Authority concludes that the Respondent's actions in promulgating and maintaining a rule or directive enforcing the specific campaign rules set forth above above violated its employees' rights under Section 7102 of the Statute, and therefore section 7116(a)(1) of the Statute, and the Respondent shall be ordered to revoke and rescind such electioneering rules in order to make it clear that such rules will not be enforced in the future. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Authority and Section 7118 or the Statute, the Authority hereby orders that the Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 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 promulgating or maintaining any rule or directive prohibiting employees from soliciting, during non-work time, on behalf of candidates in an internal union election, or from distributing literature on behalf of any such candidates in non-work areas, during non-work time, providing there is no disruption of the work of the agency (b) In any like or related manner interfering with restraining, or coercing any employee in the exercise of any right assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Rescind and revoke the election campaigning rules issued on January 21, 1982, to the extent such rules prohibit employees from soliciting, during non-work time, on behalf of candidates in an internal union election, or from distributing literature on behalf of any such candidates in non-work areas, during non-work time, and there is no disruption of the work of the Agency. (b) Post at its Southeastern Program Service Center, Birmingham, Alabama, 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 Center Director, or a designee, and shall be posted in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with it. Issued, Washington, D.C., May 12, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7102 provides: Section 7102. Employee's 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. Except as otherwise provided under this chapter, such right includes the right -- (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and (2) to engate in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter. (2) In interpreting virtually identical language contained in Section 7 of the National Labor Relations Act, the NLRB has determined, with court approval, that the right of private sector employees to engage in solicitation or distribution of literature on behalf of candidates in an internal union election is protected by the Act, and that an employer violates section 8(a)(1) when, in the course of an intra-union election campaign, it enforces overly broad no-solicitation/no-distribution rules. See General Motors Corporation, 211 NLRB 986 (1974), enf'd. 512 F. 2d 447 (6th Cir. 1975); Arkansas Best Freight, 257 NLRB 420 (1981), enf'd. 673 F.2d 228 (8th Cir. 1982). (3) See General Motors Corp., Frigidaire Division, 240 NLRB 168, 170 (1979). (4) See General Motors Corp., 211 NLRB 986, 988 (1974), enf'd. 512 F 2d. 447 (6th Cir. 1975). See also National Labor Relations Board v Magnavox Company of Tennessee, 415 U.S. 322, 94 S. Ct. 1099 (1974), where the Court was called upon to interpret virtually identical language contained in section 7 of the National Labor Relations Act, in circumstances where the collective bargaining agent had agreed to certain restrictions upon the rights of employees to solicit or to distribute literature in the context of a union organizing campaign. Articulating a concept applicable here, the Court stated that: The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees. So long as the distribution is by employees to employees and so long as in-plant solicitation is on non-working time, banning of that solicitation might seriously dilute Section 7 rights. APPENDIX 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 promulgate or maintain any rule or directive prohibiting employees from soliciting, during non-work time, on behalf of candidates in an internal union election, or from distributing literature on behalf of any such candidates in non-work areas, during non-work time, providing there is no disruption of the work of the Agency. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind and revoke the election campaigning rules issued on January 21, 1982, to the extent such rules prohibit employees from soliciting, during non-work time, on behalf of candidates in an internal union election, or from distributing literature on behalf of any such candidates in non-work areas, during non-work time, and there is no disruption of the work of the Agency. (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 IV, Federal Labor Relations Authority whose address is: Suite 736, 1371 Peachtree Street, N.E., Atlanta, GA 30367 and whose telephone number is: (404) 347-2324.