21:0748(93)CA - HHS, SSA SE Program Service Center and Barry Nelson -- 1986 FLRAdec CA



[ v21 p748 ]
21:0748(93)CA
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.