21:0849(103)CA - DOD Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy) and Will Schussel -- 1986 FLRAdec CA



[ v21 p849 ]
21:0849(103)CA
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.
                                       (