21:0849(103)CA - DOD Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy) and Will Schussel -- 1986 FLRAdec CA
[ v21 p849 ]
The decision of the Authority follows:
21 FLRA No. 103 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS MEDITERRANEAN REGION NAPLES AMERICAN HIGH SCHOOL (NAPLES, ITALY) Respondent and WILL SCHUSSEL Charging Party Case Nos. 1-CA-40036 1-CA-40076 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's Decision. 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, except as modified herein. Contrary to the General Counsel's assertion, the Authority does not read the Judge's Decision as requiring a finding of intent as an element in establishing a violation of section 7116(a)(1) of the Statute. The Authority has previously held that in deciding whether agency management violates section 7116(a)(1) by removing union documents from a bulletin board, it must be determined whether the conduct would reasonably tend to discourage union activity and support. See U.S. Department of Justice, Federal Prison System, Federal Correctional Institution, Milan, Michigan, 17 FLRA 1023, 1036 (1985). With respect to the Judge's finding of a violation of the Statute in this case based on the Respondent's conduct in prohibiting the Charging Party from posting union literature, the Authority notes the Judge's finding of a past practice whereby the Respondent allowed employees to post notices of all kinds in the teacher's lounge. By comparison, in Federal Election Commission, 20 FLRA NO. 3 (1985), the Authority found that management did not violate the Statute by prohibiting the posting of notices since there was no negotiated agreement or past practice authorizing such postings. Finally, as to the Judge's finding of a violation based on the Respondent's interference with the Charging Party's right to gather information to support his charge of an unfair labor practice, the Authority notes that the protected right to file a charge encompasses the right to gather information in support of the charge. See Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA NO. 100 (1985), in which the Authority found that protected activity under section 7102 of the Statute encompasses an employee's right to conduct an investigation on his own time to support a grievance, or in contemplation of filing a grievance. ORDER /1/ Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Department of Defense Dependents Schools, Mediterranean Region, Naples American High School, Naples, Italy, shall: 1. Cease and desist from: (a) Interfering with, restraining or coercing its employees in the exercise of their rights guaranteed by section 7102 of the Statute, by prohibiting the posting of and removing union literature placed in the teacher's lounge or other non-work areas by its employees during non-work time. (b) Interfering with, restraining or coercing its employees in the exercise of their rights guaranteed by section 7102 of the Statute, by prohibiting employees from conducting investigations and gathering evidence in support of unfair labor practice charges filed with the Federal Labor Relations Authority. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by 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) Rescind and revoke the Special Faculty Bulletin issued in December 1983, prohibiting the posting of materials on behalf of organizations other than the exclusively recognized labor organization. (b) Rescind and revoke the letter dated December 6, 1983, to employee William Schussel, directing him to cease and desist from distributing a questionnaire for the purpose of gathering evidence in support of his unfair labor practice charge. (c) Post at the Naples American High School, Naples, Italy, 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 an appropriate official, and shall be posted and maintained for 60 consecutive days thereafter, excluding holiday and vacation periods, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, 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., May 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ 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 by section 7102 of the Statute by prohibiting the posting of, and removing union literature placed in the teachers' lounge or other non-work areas by our employees during non-work time. WE WILL NOT interfere with, restrain or coerce our employees in the exercise of their rights guaranteed by section 7102 of the Statute by prohibiting them from conducting investigations and gathering evidence in support of unfair labor practice charges filed with the Federal Labor Relations Authority. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights guaranteed by section 7102 of the Statute. WE WILL rescind and revoke the Special Faculty Bulletin issued in December 1983, Prohibiting the posting of materials on behalf of organizations other than the exclusively recognized labor organization. WE WILL rescind and revoke the letter dated December 6, 1983, to employee William Schussel directing him to cease and desist from distributing a questionnaire for the purpose of gathering evidence in support of his unfair labor practice charge. (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 I, Federal Labor Relations Authority, whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose telephone number is: (617) 223-0920. -------------------- ALJ$ DECISION FOLLOWS -------------------- 1-CA-40076 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS - MEDITERRANEAN REGION NAPLES AMERICAN HIGH SCHOOL (NAPLES, ITALY) Respondent and WILL SCHUSSEL Charging Party Gerard M. Greene, Esq. For the General Counsel Joseph Caneva Ronald E. Richards For the Respondent William Schussel For the Charging Party Before: ELI NASH, Jr. Administrative Law Judge DECISION 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. Section 7101, et seq., (herein referred to as the Statute). Upon unfair labor practice charges filed by William Schussel (herein called the Charging Party or Mr. Schussel) on October 25, 1983 and December 7, 1983 against the Department of Defense Dependents Schools, Mediterranean Region Naples American High School, (Naples, Italy) (herein referred to as Respondent DODDS-M or Naples High School), the General Counsel of the Authority, by the Regional Director for Region I, issued a Consolidated Complaint and Notice of Hearing on February 27, 1984. The Consolidated Complaint alleged that Respondent violated section 7116(a)(1) by maintaining an overly broad policy regarding the posting of literature in the teachers lounge; and, by prohibiting an employee from gathering information or evidence to support an unfair labor practice charge which had been filed with the Authority. /2/ Respondent's Answer denied the commission of any unfair labor practice. A hearing on the Complaint was conducted in Naples, Italy at which time Respondent and the General Counsel were represented by Counsel and afforded full opportunity to adduce evidence, call, examine, and cross-examine witnesses and argue orally. All parties filed briefs which have been duly considered. Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following: Findings of Fact The record is undisputed that the Overseas Federation of Teachers, (herinafter called OFT), at all times material herein, was the exclusive representative of all nonsupervisory professional school-level personnel, with certain statutory exclusions not relevant to this matter, employed by DODDS-M at the Naples High School. It is also clear from the record that the Overseas Educational Association (herein referred to as OEA) did not have "equivalent status" with the OFT within DODDS-M or the Naples High School, at any time material herein. The Naples High School began using its present facility in 1982. As with many schools it provides a teachers' lounge or smoking room containing tables, chairs, lockers and couches to be used by its teachers. Teachers, administrators and administrative staff enter the lounge through the teachers' work room which is connected to the lounge by a short corridor. The lounge is located approximately ten to fifteen feet from the administrative offices. Although school administrators at one time used the teachers' lounge they discontinued use of the lounge and lockers during the 1983-84 school year. The situation now is that administrators such as the vice-principal visit the lounge on both official school and unofficial business. The record therefore, revealed the presence by administrators in other than an official capacity in the teachers lounge and Respondent does not seriously dispute such use by its administrators. Accordingly, it is found that administrators dropped into the lounge often enough to become familiar with its condition and its use. Since the hearing was held at the school the parties had an opportunity to view or inspect the lounge during the hearing. The inspection revealed approximately forty-eight lockers lining the wall opposite the entrance to the lounge and in plain view of anyone entering. The room also contained six other lockers and a bulletin board. It is uncontraverted that during 1983, a number of teachers posted cartoons, postcards, decals, clippings, messages and other materials, mostly having to do with the school on the outside of their lockers. One teacher, Ms. Jayne Osgood testified that this posting of materials was not unusual and that from time to time during the 1982-83 school year she had attached cut-outs and humorous ads to the outside of her locker and that she had done the same during the fall of 1983, which began a new school year. Ms. Osgood's locker is situated about in the middle of the bank of lockers directly opposite the entrance. Further, Ms. Osgood testified that she was not told by school administrators to remove any of the items from her locker during 1982-83. The practice of posting messages on the outside of lockers was even engaged in by the school administrative staff. This practice continued even after the lockers were painted in late 1983. Even thereafter a teacher posted a sign-up sheet for a drama show on the outside of her locker. /3/ The lockers themselves, although painted in late 1983, still bear the marks of having paper or tape attached to their exterior. It is clear, that the posting of materials on the outside of these lockers was at one time a customary practice at Naples High School. Respondent contends that prior to the 1983-84 school year the Naples High School administration had a policy concerning neatness in the school's facilities, to include the teachers' locker room. This policy according to Respondent included a prohibition against posting of materials on teachers mailboxes/lockers. The physical evidence and testimony reveals that the observance of this policy had been "a little lax." Respondent contends however, that with a new school principal assuming the chief administrator's position for 1983-84 school year the neatness policy, including the prohibition against posting of materials on teacher's mailboxes and lockers, was reaffirmed and publicized both orally and in writing during the 1983-84 school year. /4/ However, when asking Mr. Schussel to remove his materials, the neatness policy, as we later see, was never mentioned to him. During the early part of September 1983 the OFT local representative Ms. Colette Grillo met with Assistant Principal Migliaccio and informed him of OEA material posted on the mailboxes/lockers. Ms. Grillo also informed Mr. Migliaccio that if the administration did not take action to have the material removed, she would file an unfair labor practice charge with the Federal Labor Relations Authority. Based on the above-cited physical evidence and record testimony indicating a lax or non-existent neatness policy, at least with respect to the teachers lounge, it is found that no such neatness policy existed or if it existed it was never enforced prior to the 1983-84 school year. Respondent therefore, had no established policy prohibiting posting materials on lockers. In short, it appears that Respondent simply was not concerned with the teachers' use of their lockers until Mr. Schussel's display of OEA material aroused the ire of local union representative, Colette Grillo. In August 1983, Mr. Schussel, an Industrial Arts teacher employed at the school since 1982-83, attached a clipboard to the outside of his locker by means of a sheet metal tab. The clipboard was easily removable. In addition to the clipboard, Schussel placed an OEA insignia decal, which had an adhesive backing and could be removed without damaging the locker's finish, on his locker. Mr. Schussel's locker is one of those facing the entrance to the lounge. Schussel placed several memoranda and bulletins on the clipboard published by OEA allegedly describing OEA's efforts and accomplishments in collective bargaining with DODDS. Mr. Schussel according to record testimony was formerly an OEA Area Director in the Pacific Region before his employment in Naples. During 1983-84, Schussel remained a member of OEA and an officer in OEA. Around September 19, 1983, Vice-Principal Migliaccio ordered Mr. Schussel to remove the clipboard. When the clipboard was not removed on the following day, Mr. Migliaccio informed Mr. Schussel that unless he removed "all the OEA material from government property by the end of the school day," disciplinary action would be taken against him. Migliaccio also directed another teacher Jesse Gonzalez, who was present in the locker room, to remove an OEA insignia decal which Gonzalez had attached to his locker, or to similarly be disciplined. Mr. Schussel inquired whether he could put the same items on the teachers' lounge bulletin board used by teachers for ads and messages. Migliaccio replied, "no where in this High School may you display anything that belongs to any other organization other than the organization that is represented in this school." Schussel and Gonzalez then complied by removing the clipboard and decals. During this same period of time other teachers continued to display a variety of cartoons, decals and similar materials on their lockers. The evidence firmly suggests that Migliaccio ordered Schussel to remove the OEA material because the OFT local representative, Ms. Grillo, complained of its posting and threatened to file an unfair labor practice charge, and not because Migliaccio acted on his own initiative after seeing the clipboard. Migliaccio's testimony describes the clipboard as a "danger and a safety hazard," something he "bumpted into" before seeing. Mr. Migliaccio made no mention of such a hazard in his directives to Schussel. School administration was aware of Schussel's use of the clipboard long before September 19, 1983. Schussel's testimony confirms that the clipboard hung on his locker in the spring of 1983 and stands uncontradicted. In late November 1983, the School administration again directed Mr. Schussel in writing, to remove material from his locker. On this occasion, Schussel placed a "Support NTEU" label and miscellaneous non-union items on the clipboard. One week later, in late November or early December, 1983 the administration issued a "Special Faculty Bulletin" prohibiting the "posting of materials of organizations other than the elected and exclusively recognized organization(s)." The intent of this Bulletin admittedly was to prohibit the posting of such material anywhere in the School, including the teachers' lounge. Apparently the bulletin led to confusion among the teachers as to which material could be affixed to lockers. Such confusion is understandable in view of the practice tolerated the previous year. At almost the same time the administration announced in early December 1983 that all lockers would be painted during the Christmas break, and consequently all material had to be removed from the face of the lockers. Minutes of the December 8, 1983 Joint Labor Management Committee meeting reveal the following: Federal rules have for years prohibited any labor organization, other than the exclusively recognized groups, from posting materials except during election campaigns. Management feels that the minutes of this JLMC should once and for all establish clearly for all employees what the policy is regarding the placing of materials on government-owned teacher-assigned messages/mailboxes. And, again, Management expresses it regrets if this has caused a problem for any employee. After filing the charge in Case No. 1-CA-40036, approximately a month later, in early December 1983, schussel distributed a questionnaire to the teachers by putting it into their lockers one morning before the start of classes. Mr. Schussel testified that he developed the questionnaire in order to find out whether other teachers were aware of a past practice or policy prohibiting posting material on lockers. The following day, December 1, 1983 Schussel received a letter from Mr. Migliaccio, ordering Schussel to "cease and desist from polling in this school." Schussel admittedly had not informed the school administration of his intent to distribute the questionnaire. In explanation of the letter, Migliaccio testified that Ms. Grillo complained about the "polling" and demanded that the school administration do something about it. Ms. Grillo confirms that she threatened to file an unfair labor practice charge regarding the polling. The reference in Migliaccio's letter to "polling" apparently comes from Article 32 /5/ of the OFT-DODDS-M collective bargaining agreement. Reliance on that Article seems misplaced since it addresses surveys conducted by "Management" and not, as Migliaccio stated in the letter to Schussel, by "only the OFT representative." The above interpretation indeed is supported by the testimony of union representative Grillo. The cited Article without question is inapplicable to Schussel's distribution of the questionnaire. Migliaccio however, claimed that the School "always had a policy requiring teachers to submit "formal things" to the administration before distributing them although this was not the reason cited to Schussel for the "policy." During the hearing, Migliaccio admitted that the questionnaire could have been a sensible device to gather information on the unfair labor practice charge. To Ms. Grillo, the questionnaire "obviously" could have been a method to gather information on the charge. Respondent did not show that Schussel's distribution of the questionnaire through the lockers caused any interference with the School's operation. In fact the evidence tends to establish that the method used by Schussel here was a common practice followed by other teachers and organizations at the School when distributing information. Discussion and Conclusions 1. Whether a defective charge requires that the complaint be quashed in this matter. Respondent raises procedural questions which of necessity must be considered prior to addressing the substantive issues in this matter. Respondent contends, in essence, that no valid charge was filed and that under Section 2423.4 of the Authority's rules and regulations since there is no valid charge all that follows is defective. /6/ The hyper-technical arguments submitted by Respondent to support this contention are wide of the mark. It has long been recognized in administrative matters such as this that a charge is not a pleading. The charge serves merely to initiate an investigation and to determine whether a complaint in a matter should be issued. A charge has consistently been held to be sufficient for the above purposes in administrative proceedings if it informs the alleged violator of the general nature of the violation charged against him to preserve the evidence relating to the matter. Moreover, the Authority has adopted at least in principle a rule that where a procedural defect exists concerning the charge, a respondent must be prejudiced by the alleged defect. See Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA 575 (1982). Here Respondent made no effort to show prejudice, but relies merely on what it views as a technical defect. I see no reason, based on Respondent's submission, to quash the complaint herein because of a defective charge. To do so, in my view, would not effectuate the purposes and policies of the Statute in this matter. 2. Whether the "equivalent status" rule applies or whether the real issue is one of access to the facility by an individual in nonwork areas during nonwork hours. Respondent maintains that it had two legitimate reasons for directing Schussel to remove OEA materials from his locker. First, based upon legitimate managerial concerns, no material of any type was to be posted on teachers' mailboxes. And second, to have allowed the use of its facilities for the posting of OEA materials would expose it to valid unfair labor practice charges. The initial contention of Respondent is not supported by the record. Contrary to Respondent's insistence, the record shows at best a lax neatness policy which it is not clear was ever applied to teachers. Before moving to the second contention, I must agree with the General Counsel that this case does not concern the principle of "equivalent status" which Respondent assumed would expose it to a valid unfair labor practice charge by the incumbent union. Respondent's reliance on Perry Education Association v. Perry Local Educators Association, U.S. Sup. Ct., Case No. 81-896, February 23, 1983, dealing with a public school internal mail system is completely misplaced. /7/ There the question involved whether the school district should provide access to communication facilities such as access to teachers mailboxes and the right to use the interschool mail delivery system. The question was whether the access could be provided to the exclusive representative of bargaining unit employees without having to provide equal access to rival unions. /8/ Here, schussel and Gonzalez were not using the mailboxes or lockers of others, but were using their own lockers to disseminate information much in the same way other teachers had done in the past. The thing that distinguishes Perry, as the General Counsel points out in brief, is that neither Schussel nor Gonzalez was acting as a labor organization nor were they seeking to rival the incumbent by their actions. The equivalent status rule was designed to deal with demands of competing labor organizations for equal access by non-employee agents to an agency's premises and for use by those organizations of an agency's services and facilities during organizational campaigns. The rule was not intended to prohibit or restrict employees on their own time from engaging in solicitation or distribution of literature although on the agency's premises. As the Court pointed out in Perry, fn. 11, the courts have frequently invalidated restrictions that prohibit individual employees from distributing union literature during nonwork hours in nonwork areas. This is that type of case. Here Respondent made no showing that its application of the rule to Schussel was necessary to preserve discipline among teachers or that it was justified by any special circumstances, including its so called neatness policy. The question to be resolved is not one of "equivalent status" but, whether an agency can prohibit distribution of literature on nonwork time in a nonwork area for the reasons asserted by Respondent. That question has been answered previously by the Authority. See, Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA 159 (1981); Internal Revenue Service, North Atlantic Service Center, Andover, Massachusetts, 7 FLRA 596 (1982). Respondent reasons that it would be subject to a valid unfair labor practice charge if Schussel were allowed to post his decal and clipboard on his locker, a practice established to have been prevalent among many of the teachers at Naples High. A practice that prior to the 1983-84 school year was unrestricted until the incumbent complained that Schussel was posting rival literature on his locker. Interestingly, Respondent never sought to prevent Schussel from carrying a shopping bag with an OEA symbol, a practice, in my view, which was almost identical to the conduct which it threatened to discipline him about here. The exercise of opportunities to solicit or distribute literature is paramount to the right conferred by section 7102 of the Statute, "to form, join or assist any labor organization . . . . " Surely Respondent realizes that there are ongoing efforts between labor organizations to show that their product is better. In pursuit of these goals they often distribute literature to facilities which are already organized by their competitors. Their competitors no doubt complain about these efforts. Those complaints, alone, however, are no reason to inhibit that distribution. Here Respondent reacted to the complaints by promulgating a broad rule prohibiting all distribution of literature in a nonwork area without regard to whether it was done on nonwork time. Such a broad policy undoubtedly carries an inhibiting effect on others who might in the future wish to exercise section 7102 rights and seek ouster of the bargaining representative. The rule as announced and practiced by Respondent has the effect of freezing out any other union or entrenching the incumbent by infringing on section 7102 rights of dissident employees. A desirable result for the incumbent, but certainly contrary to an employee right to form, join, or assist any labor organization. In this same vein, the Authority has long recognized that where an agency grants its employees a privileged means of communication, such as a bulletin board for posting a variety of non-work-related personal items and messages, the agency may not prohibit the posting of messages and notices related to unions and collective bargaining. Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, 11 FLRA 77 (1983). In that case, the Authority held that the respondent agency unlawfully removed from the employees' bulletin board, commonly used for personal notices, cards, etc., a notice announcing the appointment of union stewards. I am in agreement with the General Counsel that Respondent's defense is based on its apparent misreading of the "equivalent status" rule and its preoccupation with Schussel's position with OEA. For purposes of this case those preoccupations are fatal since it clearly establishes that the Naples School policy was established only to suppress Schussel's views. Respondent portrays this case as an attempt to provide OEA or Schussel acting as an agent for OEA, the same or equivalent services and facilities which OFT has obtained in bargaining. The facts as shown by the record are that Respondent has allowed its employees to post itmes on the exterior of their lockers and also to use a bulletin board in the teachers' lounge without restraints. Schussel, too, as an individual employee or other dissidents have the right to use those facilities without being subject to discriminatory restraints in their use of that opportunity. In view of the evidence and applicable case law it is my conclusion that Respondent violated Section 7116(a)(1) of the Statute by maintaining and enforcing a policy, first announced to Schussel and Gonzalez in September, 1983 and later promulgated in the "Special Faculty Bulletin" prohibiting the posting or display, on lockers or on anywhere else in the lounge, or the School for that matter, of OEA and NTEU literature and/or insignia. Since the record clearly reveals that the actual reason for the policy was Respondent's misapplication of the "equivalent status" rule, I also reject Respondent's alternate argument that management had legitimate concerns about materials of any type being posted on the teachers' mailboxes and lockers. Indeed this is or may be a legitimate concern but, the record establishes beyond doubt that this reason was pretextual and was not the reason Respondent asserted to Schussel as early as September 1983. 3. Whether an individual has a right to gather information in support of an unfair labor practice charge by reasonable means. Respondent seemingly sees this matter as a castigatory proceeding for Schussel, who it views as a dissident troublemaker intent on harassing the local school administration. In so doing Respondent ignores fundamental statutory rights afforded individuals. It has already been found that Schussel filed an unfair labor practice charge with regard to Respondent's threatened disciplinary action on his distribution of OEA and NTEU literature. It is my opinion that individuals are entitled to gather information to support charges filed with the Authority at any stage of the proceedings. Furthermore, the gathering of such information is not limited to conventional means. Any theory asserted which would prevent information gathering in support of a charge would certainly be a novel one. The only question here is whether the method used by Schussel was a reasonable one. In view of the fact that both the incumbent representative and administrator Migliaccio, in essence, testified upon seeing Schussel's questionnaire which was distributed to other teachers, that it could be construed as a reasonable means of gathering the necessary information, dispells in my mind any inferences to the contrary. Accordingly, it is found that Schussel employed a traditional means of gathering information in the Naples High School and that his placing questionnaires for teachers to respond to in support of his unfair labor practice charge was certainly a reasonable method of gathering evidence in support of his charge with the Authority. Respondent raises several reasons why Schussel's distribution of the questionnaire was improper. However, Respondent has not shown how Schussel's distribution of the questionnaire hindered Respondent's use of its property, the teachers mailboxes. Respondent cites a contract provision which on its face is inapplicable to the circumstances, and a policy of approval which, even if it was substantiated by this record, would reasonably tend to deter an employee from filing unfair labor practice charges and gathering information needed to support its position. In this case Schussel could hardly have devised a more efficient means of gathering information and caused no proven interference with the daily functioning or discipline of the school. Schussel dropped the questionnaire in lockers on his own time and there is no showing that he caused teachers to use work time in responding. Schussel did not compel or pressure teachers to respond to the questionnaire. Indeed, as the questionnaire did not seek names or other identifying information, confidentiality was assured to respondents and non-participants alike. Respondent's description of locker 'drops' as the "School mail distribution system" is no more than semantics. Respondent's contention that once an unfair labor practice charge is filed, only the Office of the General Counsel may conduct an investigation of the charge lacks merit. This position ignores not only statutory policy but, the practicalities of the situation designed to facilitate the investigation and processing of unfair labor practice charges (for example, Section 7131(c) provides for official time) "consistent with the requirement of an effective and efficient Government," as set forth in Section 7101. The gathering of information by a charging party at any stage of a proceeding, through reasonable means and without engaging in flagrant misconduct seemingly assists all sides in obtaining a speedy resolution of the matter. Respondent also contends that it was unaware of the unfair labor practice charge at the time it ordered Schussel to "cease and desist" distributing the questionnaire, and therefore cannot be found liable. I do not agree. Schussel distributed the questionnaire about one month after the filing and service of the charge in Case No. 1-CA-40036 giving Respondent ample time to be aware that an unfair labor practice charge existed. Respondent does not deny service of the charge, but only the particular date alleged. Here the questionnaire was clearly related to the unfair labor practice charge and Schussel's conduct in distributing it was well within the bounds of protected activity. It logically follows that Respondent's directive in these circumstances that he "cease and desist" naturally tended to interfere with SchusselS exercise of statutory rights, and so violated section 7116(a)(1) of the Statute. Thus, Respondent never inquired as to the nature of the questionnaire, but proceeded to admonish Schussel. Such action when there was a valid charge was at its peril. Accordingly, it is found that Respondent's conduct in directing Schussel to cease and desist distribution of the questionnaire designed to gather information to support an unfair labor practice charge filed with the Authority violated section 7116(a)(1) of the Statute. Having found that Respondent violated section 7116(a)(1) of the Statute, it is recommended that the Authority adopt the following: ORDER Pursuant to 5 U.S.C. Section 7118(a)(7) and Section 2423.26 of the Final Rules and Regulations, U.S. Fed. Reg. 3482, 3510 (1980), it is hereby ordered that Department of Defense Dependents Schools, Mediterranean Region, Naples American High School: 1. Cease and desist from: (a) Maintaining or enforcing an overly broad and/or discriminatory policy regarding the posting or displaying of literature or insignia of any labor organization on employees' lockers or employees' bulletin boards. (b) Prohibiting employees from gathering information and evidence to support an unfair labor practice charge filed with the Federal Labor Relations Authority. (c) In any like or related manner, interfering with, restraining, or coercing any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Statute: (a) Permit William Schussel, Jesse Gonzalez and other employees to display literature and insignia of any labor organization on employees' lockers and employees' bulletin boards. (b) Rescind and revoke the Special Faculty Bulletin issued in December 1983 concerning posting of materials of organizations other than the elected and exclusively recognized organization(s). (c) Rescind and remove from its files the November 30, 1983 letter to William Schussel directing him to remove materials from his locker, and any other memoranda or documentation on the subject of Schussel's posting of union literature and insignia on his locker. (d) Rescind and revoke its December 6, 1983 letter to William Schussel directing him to cease and desist from distributing a questionnaire for the purpose of gathering information and evidence to support an existing unfair labor practice charge. (e) Post at its school within the Mediterranean Region copies of the attached Notice marked "Appendix". Copies of said notice, to be furnished by the Regional Director for Region 1 after being signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all 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. (f) Notify the Regional Director for Region I in writing, within 30 days from the date of this Order, what steps it has taken to comply herewith. /s/ ELI NASH, Jr. Administrative Law Judge Dated: March 25, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The Judge's recommended Order is modified to exclude holiday and vacation periods from the required posting period due to the nature of teachers' work periods during the school year. See Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 19 FLRA NO. 96 (1985), petition for review filed sub nom. North Germany Area Council, Overseas Education Association v. FLRA, NO. 85-1595 (D.C. Cir., Sept. 20, 1985). (2) The General Counsel's unopposed Motion to Correct Transcript is granted. (3) This posting prompted a memorandum from Mr. Migliaccio to the teacher involved and is Respondent's only evidence bearing on its "neatness" policy as set forth above. Despite that warning note the evidence shows that sign-up sheets for drama performances, etc., are still posted in the lounge. (4) Respondent in support of its neatness postion submitted into evidence a faculty bulletin dated November 10, 1082 from Mr. Migliaccio which reminded everyone that "(a)announcements, posters and similar items must not be tacked, stapled or taped to any walls", but makes no mention of lockers or bulletin boards. (5) Article 32 states, in pertinent part: Section 1. No teacher will be required by Management to respond to any surveys involving personnel policies, practices or working conditions without prior approval of the Union. (6) 5 C.F.R. Section 2423.4, "Contents of the charge; supporting evidence and documents," states: "(a) A charge alleging violation of 5 U.S.C. 7116 shall be submitted on forms prescribed by the Authority and shall contain the following: "(3) A clear and concise statement of the facts constituting the alleged unfair labor practice charge, a statement of the section(s) and subsection(s) of Chapter 71 of Title 5 of the United States Code alleged to have been violated, and the date and place of occurrence of the particular acts; (7) Respondent obviously did not read the facts in the Perry case, for even there the PLEA, which was not the exclusive representative of the teachers involved was not prevented from "using the school facilities to communicate with teachers. PLEA may post notices on school bulletin boards; may hold meetings on school property after hours, and may, with the approval of the building principals, make announcements on the public address system . . . " considerable more than which is involved in this matter. (8) In view of the above rulings it is unnecessary to rule on the General CounselS Motion to Strike Portions of Respondent's Brief or Respondent's reply to that motion. 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT maintain or enforce an overly broad and/or discriminatory policy regarding the posting or display of literature and insignia of any labor organization on employees' lockers and employees' bulletin boards. WE WILL NOT prohibit employees from gathering information to support an unfair labor practice charge. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. WE WILL rescind and revoke the Special Faculty Bulletin issued in December 1983 concerning posting of materials of organizations other than the elected and exclusively recognized labor organization. WE WILL rescind and revoke a November 30, 1983 letter to William Schussel directing him to remove materials from his locker, and any other memoranda or documentation on the subject of his posting of union literature and a decal on his locker. WE WILL rescind and revoke the December 6, 1983 letter to William Schussel directing him to cease and desist from distributing a questionnaire for the purposes of gathering information to support an existing unfair labor practice charge. (Agency or Activity) Dated: By: (Signature) 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 1, whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116 and whose telephone number is: (617) 223-0920.