26:0311(40)CA - Commerce, Bureau of the Census, and Edward Hanlon -- 1987 FLRAdec CA



[ v26 p311 ]
26:0311(40)CA
The decision of the Authority follows:


 26 FLRA No. 40
 
 DEPARTMENT OF COMMERCE 
 BUREAU OF THE CENSUS
 Respondent
 
 and
 
 EDWARD HANLON
 Charging Party/Individual
 
                                            Case No. 3-CA-60048
 
                            DECISION AND ORDER
 
    The Administrative Law Judge, issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent, Department of
 Commerce, Bureau of the Census, had engaged in certain 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 Respondent filed exceptions to the Judge's Decision, and
 the General Counsel filed an opposition to the exceptions.
 
    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), we have reviewed the rulings of the Judge made at
 the hearing and find that no prejudicial error was committed.  The
 rulings are affirmed.  Upon consideration of the Judge's decision and
 the entire record, we adopt the Judge's findings, conclusions, and
 recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Department of Commerce,
 Bureau of the Census, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining or coercing its employees in
       the exercise of rights guaranteed in section 7102 of the Statute,
       by prohibiting employees from soliciting membership on behalf of
       National Treasury Employees Union, or any other labor
       organization, during non-work time in work areas where there is no
       disruption of work.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Permit Edward Hanlon and other employees to solicit
       membership on behalf of National Treasury Employees Union, or any
       other labor organization, during non-work times in work areas
       where there is no disruption of work.
 
          (b) Post at its Suitland Federal Center facilities 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 Director, Bureau of the Census and shall be posted
       and maintained for 60 consecutive days thereafter, 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.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations notify the Regional Director, Region III, 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., March 20, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 rights guaranteed in section 7102 of the Statute, by
 prohibiting employees from soliciting membership on behalf of National
 Treasury Employees Union, or any other labor organization, during
 non-work time in work areas where there is no disruption of work.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL permit Edward Hanlon and other employees to solicit
 membership on behalf of National Treasury Employees Union, or any other
 labor organization, during non-work times in work areas where there is
 no disruption of work.
                                       (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 3, whose address is:  1111 - 18th Street, NW., 7th
 Floor, P.O. Box 33758, Washington, DC 20033-0758 and whose telephone
 number is:  (202) 653-8452.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-60048
 
 DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS
    Respondent
 
                                    and
 
 EDWARD HANLON
    Charging Party
 
    C. J. Schmidt, Esq.
    Paul Bath
    For the Respondent
 
    Edward Hanlon
    For the Charging Party
 
    Peter A. Sutton, Esq.
    David B. Scholl, Esq.
    For the General Counsel of FLRA
 
    Before:  SAMUEL A. CHAITOVITZ
    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., 92 Stat. 1191 (hereinafter referred to as the
 Statute) and the Rules and Regulations of the Federal Labor Relations
 Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410 et seq.
 
    Pursuant to a Charge filed on November 1, 1985 by Edward Hanlon,
 hereinafter called Hanlon, against Department of Commerce, Bureau of the
 Census, hereinafter called Census, the General Counsel of FLRA, by the
 Director of Region III, issued the Complaint and Notice of Hearing
 herein on December 19, 1985 alleging that Census violated Section
 7116(a)(1) of the Statute by promulgating a rule forbidding employees
 from engaging in solicitation on behalf of a labor organization in work
 areas during non-work time.  Census filed a timely answer denying it had
 violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in
 Washington, D.C.  Census, Hanlon and General Counsel of the FLRA were
 represented and afforded full opportunity to be heard, to examine and
 cross-examine witnesses, to introduce evidence and to argue orally.
 Briefs were filed and have been fully considered.
 
    Based upon the entire record in this matter, /1/ my observation of
 the witnesses and their demeanor, and my evaluation of the record I make
 the following:
 
                             Findings of Fact
 
    Census maintains its headquarters in Suitland, Maryland where it
 employs about 3000 employees in a collective bargaining unit represented
 by Local 2782, American Federation of Government Employees, AFL-CIO,
 hereinafter called Local 2782 AFGE.
 
    Local 2782 AFGE and Census negotiated a collective bargaining
 agreement which expires on July 1987.  The collective bargaining
 agreement provides employees with the option of working under one of two
 alternate work schedules.  Under either option, employees start work no
 earlier than 7:00 a.m. and stop work no later than 6:00 p.m.  All unit
 employees are authorized to take a fifteen minute break in mid-morning
 and mid-afternoon /2/ and a lunch period of no less than thirty minutes
 between 11:00 a.m. and 2:00 p.m.  These alternate schedules have been in
 effect since 1983.
 
    Many unit employees work in open bays of about 500 square feet.
 Usually 4 unit employees work in each bay.  Some unit employees work in
 private offices, as do supervisors and managers.
 
    Hanlon, a unit employee, began campaigning for National Treasury
 Employees Union (NTEU) in March 1985.  In a memorandum dated September
 4, 1985, to Colleen Woodward, Census' Labor Relations Officer, Hanlon
 stated that he interpreted a prior memorandum from Woodward to mean he
 was forbidden from solicitation and distribution of literature on behalf
 of a labor organization in work areas when the employees involved were
 in non-work status.  By a memorandum dated September 10, 1985, Woodward
 advised Hanlon that she would investigate the issues raised by Hanlon.
 In a memorandum dated October 9, 1985 Woodward advised Hanlon, inter
 alia, that because there are no common lunch breaks or rest periods and
 someone entering a work area could not determine who is in duty status,
 Census could not grant Hanlon's request to distribute union literature
 in the work areas during duty hours.  Hanlon was also told that orally
 by Woodward on October 9, 1985.
 
    Hanlon sent a memorandum dated October 13, 1985, to Woodward.  This
 memorandum was addressed to Census' "Division and Office Chiefs" but was
 initially sent to Woodward and was never distributed to Census' Division
 and Office Chiefs.  In the memorandum Hanlon stated, inter alia, "This
 is to inform you that 'Local 2782 Members for NTEU' will be soliciting
 in your work areas before work, after work, during rest periods and
 during lunch.  We will be discussing unions and union affiliation with
 employees who are in non-work status and we may hand out union
 authorization cards, membership forms or representational petitions for
 signatures.  We will be very careful not to disturb any employees who
 may be working in your division."
 
    Woodward, in a memorandum dated October 17, 1985 advised Hanlon that
 he had not requested nor received authorization "to solicit in work
 areas in Buildings 3 and 4 . . . . "
 
    On October 17, 1985, Hanlon wrote a note to Woodward in the bottom of
 Woodward's October 17 memorandum, stating that he had sought
 authorization "to solicit in the work areas of FOB #3 and #4." and that
 because it was a statutory right he didn't need her approval and that he
 and his associates intend to solicit in work areas of all Census areas.
 
    Woodward sent Hanlon a memorandum dated October 28, 1985, and
 entitled "Clarification of Solicitation Activities" which stated:
 
          In your October 17, 1985 reply to my memorandum of the same
       date, you claimed the right to enter the Bureau's work areas in
       order to engage in union solicitation activities with employees
       during their non-work times.
 
          The Bureau recognizes the right of employees to freely use
       their non-work time and does not interfere with how employees use
       such time in their work areas unless the work of others is
       disrupted.  However, the Bureau also recognizes the need to
       maintain its work environment in a reasonably secure
       disruption-free manner.
 
          Since the Bureau has no common periods of employee non-work
       times, i.e., lunch, rest, and starting/ending periods, someone
       entering the work area cannot determine who is or is not in duty
       status without questioning employees and hence disturbing the work
       environment.  For you and a number of individuals to enter work
       areas seeking out employees who may be in a non-duty status to
       solicit for labor purposes is inherently disruptive of the work
       site.  For this reason, I am unable to grant approval for your
       entry into the work areas to engage in solicitation activities as
       described in your October 13, 1985 and October 17, 1985
       correspondences.
 
          I am reminding you of the previous authorizations to
       solicit/distribute that you have received from me.  The Bureau has
       provided you with various, alternate, viable avenues of
       communication that stikes a reasonable balance between your
       exercise of Section 7102 rights and the Agency's right to maintain
       an orderly work place.  Our actions are in accordance with Section
       7101(b) which requires us to interpret the statute in a manner
       consistent with an effective and efficient government.
 
    Paul Bath, Census' Acting Labor Relations Officer sent a memorandum
 to Hanlon dated December 6, 1985, which stated, in pertinent part,
 
          2.  Solicitation in work areas during non-duty times
 
          Where we corroborate your assessment that a work area has
       standard starting and quitting times, lunch break, and/or break
       times such that the entire work unit is in non-duty status at the
       same time, we will authorize you to solicit in the work area
       during those non-duty times.  To use this authorization, notify
       this office of areas where you claim this practice exists.  When
       this information is verified, you may solicit in those areas.
 
    Census maintains no rules regulating or restricting employee movement
 and speech during non-work time.  During non-work time employees are
 free to talk among themselves, leave their work sites and visit
 employees in other work areas.  Prior to Census' memoranda of October
 and December 1985 employees engaged in solicitation on behalf of the
 incumbent, Local 2782 AFTE, during non-work time in numerous work areas
 of Buildings 3 and 4, including work sites other than that of the
 solicitors.  Census permitted employees to enter work areas other than
 their own and solicit membership on behalf of Local 2782 AFGE so long as
 both the solicitor and solicitee were in non-work status.
 
    Article 4.3 of the Collective bargaining agreement provides:
 
          "4.3 Internal Union Business.  Activities relating to internal
       union business (including the solicitation of membership, election
       of its officials, and the collection of dues) shall be performed
       only during the time the employee is in a nonduty status or on
       official paid breaks."
 
                     Discussion and Conclusions of Law
 
    Section 7116(a)(1) of the Statute provides that it is an unfair labor
 practice for an agency "to interfere with, restrain or coerce any
 employee in the exercise by the employee of any right under this
 chapter;  . . . . " Section 7102 of the Statute provides "Each employee
 shall have the right to form, join or assist any labor organization . .
 . . "
 
    The FLRA has held that employees have a right, protected by Section
 7102 of the Statute, to solicit membership and distribute literature on
 behalf of labor organizations during non-work time in non-work areas.
 e.g. General Services Administration, 9 FLRA 213, (1982), Internal
 Revenue Service, North Atlantic Service Center, Andover, Massachusetts,
 7 FLRA 596 (1982).  The FLRA has further held that an employee has the
 right to solicit membership on behalf of a labor organization while in
 non-duty status in work areas where the employees being solicited are
 also in non-duty status, absent disruption of the activity's operations.
  See Social Security Administration, 13 FLRA 409 (1983) and Oklahoma
 City Air Logistics Center, Tinker Air Force Base, Oklahoma, 6 FLRA 159
 (1981).  This right of employees to distribute literature and solicit
 membership on behalf of a labor organization, as recognized by the FLRA,
 is one of the fundamental rights of employees protected by Section 7102
 of the Statute;  a right whose protection is most important.  Such a
 right for employees to communicate among themselves is necessary if the
 employees are to have any meaningful right to organize for collective
 bargaining.  The FLRA recognized the importance of the employee rights
 to solicit on behalf of a labor organization when the FLRA recognized
 that an agency policy or rule prohibiting solicitation by employees, on
 work premises, during non-duty time is presumptively invalid, and, in
 the absence of special circumstances, interferes with the employees'
 Section 7102 rights and violates Section 7116(a)(1) of the Statute.
 Oklahoma City Air Logistics Center, Tinker Air Force Base, supra.
 
    In the subject case Census contends that its October 28, 1985
 memorandum does not prohibit solicitation in work areas during non-work
 times, but rather states that employees may freely use their non-work
 time as they please in their work area.
 
    The second paragraph of the October 28 memorandum states that
 employees are free to use non-work time as they see fit, in their work
 areas.  However, the third paragraph makes it quite clear that, because
 there are no general common non-work times Hanlon and others, during
 non-work times, were denied permission to go into the work areas of
 other employees, who were also in non-work status, to discuss union
 matters because other employees in that general area might be working.
 Further Census' December 6 memorandum clarified any confusion by saying
 that when Hanlon can find an area where all employees are on "non-duty
 status at the same time, we will authorize you to solicit in the work
 area during those non-duty times."
 
    The October 28 and December 6 memorandum make it absolutely clear
 that Census maintains a rule that provides that an employee during a
 break, cannot solicit membership on behalf of NTEU or any other labor
 organization with a second employee who is also on a break (in non-work
 status) in either employee's work area.
 
    Census' witness' attempts to explain the memoranda so as to show no
 such rule was stated nor meant were unpersuasive, confused and are
 totally discredited.  The instructions from Census to Hanlon were clear.
  Hanlon, while on break, could not solicit for NTEU with any other
 employee, also on break, in a work area unless all employees in the work
 area were also on break.
 
    Thus, absent some unusual circumstance or work disruption, Census' no
 solicitation rule is too broad and is violative of Section 7116(a)(1) of
 the Statute.  Social Security Administration, supra.
 
    Census contends that because employees in non-work status are in the
 same area as employees in work status, to permit solicitation would
 disrupt Census' operations.  This contention is rejected.
 
    The record establishes that during non-work time employees may visit
 each other in their work areas and discuss a variety of non-work related
 matters and that there are no limitations concerning such employee
 contract.  Further there was no evidence introduced to establish that
 prior union solicitation between employees in the work area during
 non-work time had resulted in any interference with any working
 employees' performance of their duties.  In fact Hanlon stated in his
 request that he would be very careful not to interfere with employees
 who were working.
 
    In light of the foregoing I conclude that Census did maintain a rule
 that prevented employees from engaging in union solicitation in work
 areas during non-work times and that such rule constituted a violation
 of Section 7116(a)(1) of the Statute.  /3/
 
    Having concluded that Census violated Section 7116(a)(1) of the
 Statute I recommend that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 the Department of Commerce, Bureau of Census, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining or coercing its employees in
       the exercise of rights guaranteed in Section 7102 of the Statute,
       by prohibiting employees from soliciting membership on behalf of
       National Treasury Employees Union, or any other labor
       organization, during non-work time in work areas where there is no
       disruption of work.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Permit Edward Hanlon and other employees to solicit
       membership on behalf of National Treasury Employees Union, or any
       other labor organization, during non-work times in work areas
       where there is no disruption of work.
 
          (b) Post at its Suitland Federal Center facilities 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 a responsible official and shall be posted and
       maintained for 60 consecutive days thereafter, 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.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations notify the Regional Director, Region III, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       /s/ SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  August 29, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) General Counsel of the FLRA filed Motion to Correct the
 Transcript, which was unopposed and is hereby granted.
 
    (2) The coffee breaks are not taken at the same time by all
 employees, but rather are worked into the days work schedule by
 individual employees.
 
    (3) In so finding I am not concluding that in unusual circumstances
 Census could not limit such solicitation.  Such unusual circumstances
 were not present in the subject case.
 
 
 
 
 
 
                          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 interfere with, restrain or coerce our employees in the
 exercise of rights guaranteed in Section 7102 of the Statute, by
 prohibiting employees from soliciting membership o