29:1044(77)CA - Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines and Overseas Education Association, Pacific Region -- 1987 FLRAdec CA
[ v29 p1044 ]
The decision of the Authority follows:
29 FLRA No. 77 DEPARTMENT OF THE AIR FORCE 3RD COMBAT SUPPORT GROUP CLARK AIR BASE, REPUBLIC OF THE PHILIPPINES Respondent and OVERSEAS EDUCATION ASSOCIATION PACIFIC REGION Charging Party Case No. 98-CA-60357
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's Decision filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions. The complaint alleged that the Respondent interfered with the protected rights of Department of Defense Dependents Schools (DODDS) employees in violation of section 7116(a)(1) of the Federal Service Labor - Management Relations Statute (the Statute) by denying a DODDS employee permission to distribute, in certain non-work areas of Respondent's facility, handbills concerning matters affecting unit employees' terms and conditions of employment. The Judge concluded that the Respondent's refusal violated the Statute as alleged. For the reasons stated below, we find, in agreement with the Judge, that the Respondent committed the unfair labor practice alleged in the complaint.
The Overseas Education Association (OEA) is the exclusive representative of certain employees of the DODDS, including those employees of the DODDS working at six schools located at Clark Air Base, Republic of the Philippines. Pursuant to cuts proposed by the Department of Defense (DOD) [PAGE] in the DODDS budget in late 1985 and early 1986, the OEA exercised its national consultation rights with DOD by making recommendations as to where the cuts should take place. OEA also exercised its bargaining rights with DODDS to negotiate concerning the impact of the cuts. In addition, the OEA embarked on a publicity campaign to inform the parents of children taught by OEA members of the effects of the cuts on their children's education in an effort to solicit their support to oppose the budget cuts. OEA suggested that its subordinate organizations at regional and local levels use handbilling to accomplish this purpose.
The OEA's subordinate level at Clark Air Base is the Southeast Asia Educators' Association (SAEA). On April 11, 1986, the SAEA Vice President, an employee of the DODDS, sent a letter to the Clark Air Base Commander requesting permission to distribute handbills at the base exchange and commissary of Clark Air Base. Three handbills were attached to the letter. The handbills discussed the budget cuts and SAEA's view as to how they would affect the education of the children taught by its members. The handbills urged the parents to take specific steps to oppose the cuts, including the suggestion that parents write their congressional Representatives about the need for adequate funding. The handbills also focused on more specific problems, such as the Union's criticism of the increase in the number of classes in a day.
The Base Commander replied on April 24, 1986, stating, among other things, that "it is not appropriate for me to approve distribution of lobbying materials by private organizations or unions." SAEA renewed its request on May 8, 1986, which resulted in the Base Commander's second denial on May 27. In this denial, the Base Commander again referred to SAEA's handbills as "a campaign apparently designed to lobby parents from our base population," which he viewed as inappropriate. Based on these denials, the SAEA did not distribute handbills at Clark Air Base.
As found by the Judge (Judge's decision, slip op. at 7), testimony at the hearing reflected that the basis for the Base Commander's decision was his and the Vice Commander's conclusion "that the purpose of the handbills was to encourage parents of students to make a 'political statement' by writing to their Congressmen or engage in some action to counter the proposed effects of (the cuts) which they concluded was inappropriate conduct for a military base." The record also indicated that the Base Commander was concerned about handbills in general. However, there are no Air Force regulations relating to the distribution of such materials by civilians on Air Force facilities. [ v29 p2 ]
III. Administrative Law Judge's Decision
The Judge found that the literature which the Union sought to distribute announced both a dispute it had with DODDS as well as the Union's concerns over the budget cuts. The Judge found that the matters discussed in the handbills, although phrased in a manner highlighting the effect of the budget cuts on students, were directly related to bargaining unit employees' working conditions. Furthermore, he found that the primary thrust of the handbills was to solicit the aid of parents of the students and their opposition to the budget cuts. Therefore, he concluded, relying on Bureau of Prisons, Federal Correctional Institution (Danbury, Connecticut), 17 FLRA 696 (1985), that the SAEA's request to distribute the handbills was protected activity under section 7102 of the Statute because it involved the right of SAEA to state publicly the views of a labor organization on matters affecting the working conditions of unit employees.
The Judge noted in this regard that unions in the Federal sector must seek Congressional or Executive action in order to improve most economic conditions due to the limitations imposed on them by Statute, and that while seeking action in this manner may be termed "political," it is specifically protected under section 7102. He also found that communicating with the public to enlist their support, such as occurred in this case, is merely a logical extension of that right. Additionally, he noted that under 5 U.S.C. 7211, employees also have a protected right individually or collectively to petition Congress.
Concerning the Respondent's defense that it could not have violated the Statute because it has no bargaining relationship with the Union, the Judge noted that both the Air Force and the DODDS are components of the DOD, and that the DODDS employees represented by the Charging Party, and their facilities, are located on Clark Air Base under Air Force control. Based on those factors, he concluded that a sufficient link existed between the Respondent Air Force and the DODDS employees to hold the Air Force responsible for interfering with the DODDS employees' protected rights when it denied permission to distribute the handbills. As support for his conclusion, the Judge cited the Decision of another Judge in Department of Commerce, Bureau of the Census, Case Nos. 3-CA-50528 and 3-CA-60017 (1987), in which the Judge concluded that the General Services Administration (GSA) interfered with the section 7102 rights of an employee of the [ v29 p3 ] Department of Commerce, Bureau of the Census, by refusing to grant him permission to show a film in public space controlled by GSA. 1
The Judge also rejected the Respondent's allegation that the place where handbilling was to occur, an Air Base, should serve as a basis for a denial of the Union's right to engage in protected activity. He noted that there may be good reasons for keeping public areas of military facilities free from partisan political campaigns. However, the Judge found that the handbilling the Union sought to engage in was not partisan in the sense of endorsing a political party and was not directed at military personnel in their military capacity. Therefore, he concluded that by permitting the handbilling, the Respondent would not appear to lend support to a partisan political campaign.
Relying both on the Authority's decision in Bureau of Prisons and its decision in United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985), the Judge noted that the right of an employee acting in the capacity of a union representative to communicate information to the press, the general public, or other interested parties is not an unfettered right. However, he concluded that nothing in the manner, timing, or site of the handbilling could be construed to present an embarrassment to the Respondent or a threat or danger to the discipline or morale of military personnel on the Air Base.
Finally, the Judge found no basis for the additional allegation in the complaint that the Respondent's denial was discriminatory. He concluded that there was insufficient evidence to support a finding that Respondent maintained a practice of permitting the distribution of handbills by other non-military groups.
IV. Positions of the Parties
The Respondent excepts to the Judge's finding that the status of its facility as a closed military installation does [ v29 p4 ] not limit the Union's right to distribute the handbills involved in this case. The Respondent also excepts to the Judge's finding that the lack of a bargaining relationship between the Respondent and the Union may not serve as a defense and to his reliance on the Bureau of the Census decision, which the Respondent contends is inapplicable to this case.
Rather, the Respondent argues that section 7102 of the Statute does not protect the right of employees to publicize a labor dispute by distributing handbills at the location of a secondary employer. Its argument is based on the absence of any language in the Statute concerning "secondary activity" regarding which a body of law exists in the private sector. Further, the Respondent contends that should the Authority determine that such a right does exist, any determination as to whether unlawful conduct occurred must be made based on existing private sector case law concerning "secondary activity" rather than the Bureau of the Census rationale. Finally, the Respondent excepts to the lack of a specific finding by the Judge as to each of the arguments the Respondent submitted to him.
The General Counsel opposed the Respondent's exceptions, arguing that the Judge's Decision was soundly reasoned, legally correct, and fully supported by the record evidence. The General Counsel argues specifically that the Respondent's "secondary activity" analysis is misplaced because no secondary activity as it is defined in the private sector--that is, activity directed toward the secondary employer to involve it in the dispute with the primary employer--took place in this case. In any event, the General Counsel submits that even if the "secondary activity" analysis is applied, under applicable private sector case law there is no basis for limiting the Union's protected right to publicize matters affecting unit employees' terms and conditions of employment.
We conclude, in agreement with the Judge and his rationale, that the Respondent interfered with the Union's section 7102 rights in violation of section 7116(a)(1) of the Statute when it denied the Union's request to distribute handbills in the vicinity of the Air Base commissary and exchange. As noted by the Judge, the right to publicize matters affecting unit employees' terms and conditions of employment, while not unfettered, is a right protected under section 7102 of the Statute. See Bureau of Prisons, 17 FLRA at 697. The Respondent claims, among other things, that the handbills did not publicize a "labor dispute" and therefore [ v29 p5 ] the Union's handbilling activities are not protected by section 7102. However, we conclude that the Judge's finding that the handbills did in fact publicize the Union's position with respect to matters affecting unit employees' conditions of employment is supported by the record evidence. We also agree with the Judge that, under Authority precedent, the distribution of handbills which publicize a union's position with respect to matters affecting unit employees' conditions of employment is protected by section 7102. Therefore, we reject the Respondent's argument.
We also reject the Respondent's contention that the handbilling sought by the Union in this case should be equated with "secondary activity" as defined in the private sector, and that corresponding private sector case law should be applied to the facts of this case. While the Judge did not address this issue specifically, his conclusions make it clear that he viewed the Union's right to handbill and thereby publicize matters affecting unit employees' terms and conditions of employment as emanating from section 7102 of the Statute. As noted above, we agree with these conclusions. Moreover, we note that the traditional form of "secondary activity" in the private sector--in which a union seeks to pressure a secondary employer to involve itself in a dispute between the union and the primary employer--is not present in this case. Rather, the Union here sought to inform only the Respondent's civilian employees, military personnel, and their dependents, as members of the public, concerning certain matters affecting unit employees' terms and conditions of employment. Therefore, we agree with the Judge that the application of a "secondary activity" analysis to this case is inappropriate.
Furthermore, in Bureau of the Census we adopted the principle, relied on by the Judge in this case, that an agency may not interfere with the section 7102 rights of employees even where it does not have a bargaining relationship with the exclusive representatitve of those employees. The Judge correctly concluded that a sufficient link exists between the Respondent and DODDS employees to hold the Respondent responsible under the Statute even in the absence of an employer-employee relationship between the teachers and the Respondent. Here, as noted by the Judge: both the Respondent and the DODDS are components of DOD; the DODDS facilities are located on the Air Base under the Respondent's control; the DODDS employees provide the educational services for the children of both Air Force civilian and military personnel; and finally, the Respondent controls those quasi-public, non-work areas of the Air Base, such as the commissary and the exchange, where the DODDS employees can communicate their labor dispute. [ v29 p6 ]
We must also reject the Respondent's argument that the status of the military base itself should act as a limitation on the Union's rights. In this regard, we adopt the Judge's finding and conclusions concerning this matter. We note particularly that the Union requested to handbill only in quasi-public, non-work areas of the Air Base, and that, as found by the Judge (slip op. at 12 n.12), the Respondent did not claim that the handbilling activity would disrupt the Respondent's mission at the Air Base. With respect to the Respondent's final exception alleging a failure on the Judge's part to specifically analyze each legal proposition submitted by the Respondent, we find that the Judge considered each issue present in this case. His conclusions were based on the application of existing case law. Therefore, we find no basis for the Respondent's final exception.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines shall:
1. Cease and desist from:
(a) Interfering with the rights of Department of Defense Dependents Schools (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by refusing to allow the Overseas Education Association, the exclusive representative of DODDS employees, to distribute at the exchange and commissary handbills related to their terms and conditions of employment.
(b) In any like or related manner, interfering with, restraining, or coercing any employee of DODDS in the exercise of 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) Post at Air Force facilities at Clark Air Base 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 Commander of Clark Air Base 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 [ v29 p7 ] ensure that such Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 23, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p8 ]
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with the rights of Department of Defense Dependents Schools (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by refusing to allow the Overseas Education Association, the exclusive representative of DODDS employees, to distribute at the exchange and commissary handbills related to their terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce DODDS employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
______________________________ (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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000. [PAGE]
DEPARTMENT OF THE AIR FORCE, 3RD COMBAT SUPPORT GROUP, CLARK AIR BASE, REPUBLIC OF THE PHILIPPINES Respondent and OVERSEAS EDUCATION ASSOCIATION, PACIFIC REGION Charging Party Case No. 98-CA-60357 Lt. Col. James H. Frampton and Major Steven E. Sherwood, on the brief For the Respondent Stephanie Arthur, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judges
Statement of the Case
This case arose under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein sometimes referred to as OEA or the Union) against the captioned Respondent, the General Counsel of the Authority, by the Regional Director for Region IX, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute [PAGE] by refusing to allow the Union to engage in handbilling at Respondent's base exchange and commissary.
A hearing on the Complaint was conducted at Clark Air Base, Republic of the Philippines at which all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the Overseas Education Associaton has been the exclusive collective bargaining representative of various employees of the Department of Defense Dependents Schools (herein DODDS) which is a component of the Department of Defense. DODDS operates schools for children of American military and civilian personnel of the Department of Defense in various countries throughout the world outside the United States including six schools on Clark Air Base in the Philippines. 2 Clark Air Base is under the control of the United States Air Force, a military department within the Department of Defense. It is considered a "closed base" with guarded gates and does not permit open access to the general public. However, it is apparent from the record that military and civilian personnel of DOD and their dependents have access to the various facilities available on the base including churches, schools, the base exchange and the commissary.
OEA also has national consultation rights with the Department of Defense (hereinafter DOD). OEA was aware of proposals by DOD to reduce the budget of DODDS by approximately 6 percent when it became apparent around January 1986 that an additional 4.9 percent decrease in DODDS' budget would occur as a result of the impact of the then recently passed Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 9-177, Title II, 99 Stat. 1037 (1985), commonly known as the Gramm-Rudman-Hollings Act (herein Gramm - Rudman). Pursuant to its national consultation rights OEA made various recommendations to DOD in February 1986 as [ v29 p2 ] to where budget cuts should take place. Around this same time OEA requested negotiations with DODDS on any program changes which would impact on unit employees and submitted its proposals on the matter to DODDS. In March 1986 OEA was notified by DODDS of its decisions on how the budget cuts would impact on specific DODDS' programs. In April OEA submitted additional negotiation proposals to DODDS on the matter.
Meanwhile, in addition to OEA's efforts with DOD and DODDS, OEA embarked on a publicity campaign to inform parents of children its members taught of the changes in educational programs which had been implemented or proposed to be implemented in an effort to solicit the concern and support of parents to oppose the budget cuts. OEA suggested to its subordinate organizations at regional and local levels that handbills in furtherance of its aims be distributed.
In the Pacific Region the local union for the Philippines is the Southeast Asia Educators' Association (herein SAEA or also sometimes the Union). Around early March 1986 SAEA members, as a form of protest to the budget cuts, began filing grievances with DODDS on its failure to provide substitute teachers during the absense of specialty teachers, a recently implemented result of DODDS' budget reduction. Further, on April 11, 1986 SAEA Vice President Dr. Howard Carron, who was also a teacher at Clark Air Base, sent the following letter to Clark Air Base Commander Colonel D. G. Kimball:
"I am writing in behalf of the Southeast Asia Educator's Association to request permission to distribute the attached letter to the members of the Clark Air Base Community. 3 As you are, I'm sure, also concerned with the effects of the Gramm - Rudman Amendment on our schools the dissemination of this information would be helpful in explaining the results of the proposed cuts on our students and our programs.
"Our organization, which represents all of the teachers, wishes to present to the community our suggestions for how we, as a group, can implement these reductions with the least adverse impact on the students. [ v29 p3 ]
"Thank you for your consideration. As time is of the essence your earliest reply would be most appreciated." 4
One of the attached leaflets entitled "We teach the Children" referred to the "mutual concern" of teachers and parents for providing quality education for children and noted that DOD had decreased DODDS' budget by 6 percent and another 4.9 percent decrease was added March 1 when Gramm - Rudman went into effect. The handbill mentioned specific adverse effects of cuts in funds such as: starting school three weeks late; diminished extracurricular activities, transportation and special enrichment activities; curtailment of supplies and summer school; the failure to have substitute teachers for certain absent specialists; and unfilled teacher vacancies with resultant larger class sizes and fewer courses offered to students. The leaflet encouraged the reader to:
"Find out how the budget reductions are affecting your child's school and what you can do to reverse these cuts. Ask a teacher or school administrator for details. Go to your PTO/PTA or PTSA and School Advisory Committee (SAC) for information and suggestions. Write your Congressional Representatives about the need for adequate funding for DODDS. The DODDS' budget crisis will only get worse unless teachers and parents act together. We need to show that the quality of education in DODDS is important and there can't be quality without adequate funding."
Another leaflet entitled "Teacher to Parent" discussed the Union's perceived adverse impact on students' education by DODDS' budget being reduced, namely: larger class sizes resulting from "DODDS . . . planning to replace only two of every three teachers who leave the system;" eliminating resource teachers' positions (special teachers for art, [ v29 p4 ] music, physical education and reading) at the elementary school level; reducing supplies and materials available to students; and a proposed 50% reduction by DODDS of funding for extracurricular activities in school year 87-88. Under the caption "Teachers are Concerned," the leaflet concluded:
"DODDS is saying that the school budget must be cut by 10.9% now. That is a very severe cut so late in the school year. Because of the Gramm - Rudman balanced budget law passed by Congress, this reduced budget will be slashed again October 1, 1986.
"Ask a teacher, administrator, or base commander about how the cuts are affecting your child's school. Go to your PTO/PTA/or PTSA and School Advisory Committee (SAC) for answers to these important questions.
"Teachers would like to work with you to protect the interests of your children and DODDS system.
" LET'S WORK TOGETHER!
"Overseas Education Association/NEA We teach the children."
The third leaflet, also entitled "Teacher to Parent," centered on the Union's criticism of a "7-Period Day" wherein DODDS had apparently embarked on a program of shortening each class period by ten minutes and enlarging the number of classes in a day from six to seven. The leaflet indicated that the Director of DODDS was responsible for implementing the program and alleged it adversely affected students and suggested it be evaluated by DODDS before being expanded to more schools. The leaflet concluded:
"Ask a teacher, administrator, or base commander if the 7-period day is going to be a part of your child's high school program next year. Take your questions to your PTO/PTA/or PTSA and school Advisory Committee (SAC). [ v29 p5 ]
"During a time when the DODDS budget is being severely cut and school resources are at an all time low, questions about adding extra programs and expenses are vitally important.
"LET'S WORK TOGETHER!
"Overseas Education Association/NEA We teach the children."
Base Commander Kimball replied on April 24 indicating his conclusion that some of Dr. Carron's information was "out of date" and stating, inter alia:
". . . it is not appropriate for me to approve distribution of lobbying materials by private organizations or unions. There are ample official channels for informing our base population the impacts that Gramm - Rudman has on the school program. I suggest you speak with the DoDDS administrator or bring the subject to the DoDDS Base Advisory Committee."
On May 8, 1986 Dr. Carron renewed his request to distribute leaflets, attaching a handbill and a copy of a "Stars and Stripes" newspaper article dated February 12, 1986. The article indicated that in settlement of an unfair labor practice charge with OEA, the U.S. Army withdrew a regulation banning distribution of handbills on all Army installations where employees represented exclusively by OEA were employed by DODDS. According to the article, the unfair labor practice charge stemmed from a Commander's order banning picketing and the distribution of leaflets at a military barracks where OEA affiliated Teachers planned to picket to protest the firing of a colleague.
On May 9, Dr. Carron met with the DODDs' Chief School Administrator for the Philippines and asked if the Union had his permission to distribute the leaflets. The Chief Administrator told Dr. Carron that decision was "up to the Base Commander."
By letter dated may 27 Colonel Kimball denied Dr. Carron's request to handbill, stating:
"Your proposal differs markedly from the one approved in Europe. That proposal [ v29 p6 ] centered around working conditions for teachers while yours focuses on the quality of education anticipated for students. Further, while your concern for the quality of education is laudable# a campaign apparently designed to lobby parents from our base population concerning the affects of any law on school programs is misplaced. Such a campaign would be more appropriately addressed to DoDDS administrators or the DoDDS Base Advisory Committee, as I suggested in my 24 April 1986 letter on the same subject."
Accordingly, the Union did not distribute its handbills and the instant unfair labor practice charge was filed.
Combat Support Group Vice Commander Colonel James L. Hendrickson testified that during the period that the Union's request to leaflet was under consideration he was aware that DODDS was proposing cuts which adversely affected teachers. 5 He also testified that the decision to deny the Union's request, in which he participated, was based upon Colonel Kimball's and his conclusion that the purpose of the handbills was to encourage parents of students to make a "political statement" by writing to their Congressmen or engage in some action to counter the proposed effects of Gramm - Rudman which they concluded was inappropriate conduct for a military base. Colonel Hendrickson further testified that he and the Base Commander were opposed to handbills in general and were concerned that they were an "irritant" to people at the Air Base. 6 However, there are no Air Force regulations relating to the distribution of such materials by civilians at Air Force facilities in general or Clark Air Base in particular which Respondent relied on in rejecting [ v29 p7 ] the Union's request and no relevant DOD regulations were claimed to exist.
Dr. Carron testified that numerous non-military organizations hand out literature on the base from time to time, such as the Afro-American Club, the Thai Club, the Hawaiian Club, a drama group, the Boy Scouts, secretary sorority groups advertising a bazaar and others. He also testified that an "automobile concession" distributes literature "virtually every day" at the base exchange regarding purchasing and financing automobiles.
Colonel Hendrickson acknowledged that handbilling has occurred on the base but testified that whenever the matter came to his attention or the attention of the Base Commander, they requested that the conduct cease. He also testified to having refused requests from religious groups to distribute literature, and from time to time at staff meetings has relayed base policy of "no handbilling."
Discussion and Conclusions
The General Counsel contends that the Union's right to handbill is conduct protected under section 7102 of the Statute and accordingly, Respondent's interference with such activity violated section 7116(a)(1) of the Statute. 7 The General Counsel also alleges Respondent allowed other non-military groups to distribute handbills on the base thereby discriminating against the Union.
Respondent denies any violation of the Statute arguing that the literature the Union desired to distribute did not identify the existence of a labor dispute and sought only political action on the part of recipients, inappropriate conduct for a military base and therefore outside of Statutory protection. Respondent also contends the Union, in any event, had no bargaining relationship with Respondent and therefore had no right to distribute material on the premises of the "neutral" Respondent. Using National Labor Relations Act law analogously, Respondent further argues that it is a "secondary" employer and the Union's right to [ v29 p8 ] publicize its dispute should be governed by case law developed under the National Labor Relations Act regarding secondary employers and common situs picketing. Respondent also denies allowing other organizations to leaflet on the base.
To begin, I find the literature the Union sought to distribute announced both a dispute the Union was having with DODDS and concerns over the congressional Gramm - Rudman cuts on DODDS' budget.. 8 The literature directly concerning DODDS indicated the Union's displeasure with DODDS' priorities in assigning areas of program curtailment and the seven period day. Although the language of the leaflets is couched in a manner to highlight adverse effects on students, it is quite apparent that many of the cutbacks were likewise adverse to teachers' conditions of employment. Thus, curtailed extracurricular activities, special enrichment activities and summer school would result in less employment for teachers. The failure to hire substitute teachers, larger class sizes and the seven period day would mean a heavier work load for teachers. clearly the matters which concerned the Union were directly related to teachers' working conditions and readily recognizable as such. 9
The objective of the leaflets was to solicit the parents of students to make common cause with teachers and voice opposition to budget cuts which impacted on DODDS' schools. The primary thrust of the leaflets was to encourage parents to inform themselves of the situation, protest to DODDS, and write Congressional representatives to support more funding for DODDS. In Bureau of Prisons, Federal Correctional Institution (Dansbury, Connecticut), 17 FLRA 696 (1985) the Authority held that interference with the right of an employee acting in a representative capacity to publicly state the views of a labor organization on matters affecting unit employees' terms and conditions of employment interfered [ v29 p9 ] with rights guaranteed by section 7102 of the Statute. 10 In that case, which dealt with an employee who sought to publicize issues concerning working conditions by giving a newspaper interview, the Authority ruled that a union is engaged in protected activity when it publicizes and communicates information in an attempt to improve working conditions. See also Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 21 FLRA 757 (1986).
Indeed, since unions and agencies in the public service generally may not negotiate on most economic conditions of employment, unions must seek Congressional or Executive action in order to improve economic conditions of employees they represent. See e.g. American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986). This might well be termed "political" activity. But it is more than that. It is statutorily protected activity. The recognition of union necessity to follow this course of conduct is reflected in Section 7102(1) of the Statute, supra, wherein the right of unions to present views to officials of the Executive branch and Congress is specifically granted. 11 Communicating with the [ v29 p10 ] public to encourage others to make common cause with the employees' collective bargaining representative, which occurred herein, is merely a logical extension of the Union's Section 7102 rights and accordingly I conclude that such conduct is protected by the Statute.
Having found that the distribution of the handbills was protected activity, two questions remain: (1) Can Respondent's refusal to permit distribution of the leaflets be found to have violated the Statute if Respondent has no collective bargaining relationship with the Union and; (2) If answered in the affirmative, could Respondent refuse to permit distribution of the leaflets in any event since the leafleting was to occur on a military base?
0EA is the collective bargaining representative of DODDS' employees who work on Clark Air Base and the Air Force, although it has control over the Air Base, has no collective bargaining relationship with DODDS' employees. However# DODDS and the Air Force are both components of the Department of Defense. DODDS' facilities are located on the Air Base which is under the control of the Air Force. DODDS' employees work on the Air Base to provide teachers for children of military and civilian personnel of the Air Force. Thus DODDS' employees are not merely public visitors or strangers to the Air Base. Rather, they enjoy a special status by reason of their mutual identity of interests with the Air Force and the interrelationship of organizations and endeavors between DODDS and the Air Force. Accordingly, I conclude there exists a sufficient nexus between the Air Force and DODDS' employees to hold the Air Force responsible under the Statute for interfering with rights protected by the Statute even in the absence of an employer-employee relationship between teachers and the Air Force. See Department of Commerce, Bureau of Census, et al., OALJ 86-78, Case Nos. 3-CA-50528 et al. (August 1, 1986) wherein Judge Samuel A. Chaitovitz treated a similar issue.
In the circumstances of this case I do not conclude that the place where the leafleting was to take place should privilege Respondent in preventing the Union from engaging [ v29 p11 ] in protected activity. I recognize that even "public" areas on military facilities, 12 from the very nature of a military facility, may call into play considerations different from other public areas whether private or governmental. There are salutary reasons indeed for "keeping official military activities wholly free of entanglement with partisan political campaigns" and "insulated from both the reality and appearance of acting as a handmaiden for partisan political causes or campaigns" See Greer v. Spock et al., 424 U.S. 828, 96 S. Ct. 1121 (1976). Further, the Authority has recognized ". . . that the right of an employee acting in the capacity of a union representative to communicate information to the press, the general public or other interested parties" is not an unfettered right. Bureau of Prisons, supra at 697, and United States Forces Korea/Eighth United States Army, 17 FLRA 719 (1985). However, in the case herein the Union is engaged in activity which is specifically protected by sections 7102 and 7211 of the Statute. Further, the activity was not partisan in the sense of endorsing a political party or its objectives nor directed to nor could it affect military personnel in their military capacity on the base. Rather, the Union merely seeks to encourage civilian employees and military personnel as parents of students to assist them in their protected endeavor. Those involved in the handbilling are not members of the general public but teachers who are legitimately present on the base as employees of DODDS, which is responsible to DOD, the same parent body to the Air Force, to educate children of military personnel and employees of the Air Force. In these circumstances I perceive little possibility that by respecting the Union's right to handbill at Clark Air Base, the Air Force would be giving the appearance of lending support to the Union's efforts or being associated or entangled with a political cause. Further, nothing in the manner, timing or situs of the intended handbilling, the base exchange and commissary, can be construed to present an embarrassment to the Air Force or a threat or danger to the discipline, order or morale of the troops or prejudice Respondent's interests in any way. 13 [ v29 p12 ]
Accordingly, having balanced the various rights and interests herein I conclude that neither the lack of a collective bargaining relationship with the Union nor the fact that a military base is involved herein constitutes a valid reason for Respondent's preventing the Union from engaging in the protected activity of distributing the leaflets described above at the base exchange and commissary.
With regard to the allegation that Respondent permitted other organizations to handbill but discriminatorily denied the Union this privilege, the record reveals that numerous organizations have been seen distributing leaflets on the base at various times. However, it does not appear that any of these organizations have been given permission to handbill and the record reveals that when such activity has come to the attention of the Base Commander or Vice Commander, they requested that the conduct cease. In the circumstances herein I find insufficient evidence to support a finding that there existed a practice of Respondent generally permitting other distribution of leaflets on base by non-military groups.
Therefore, in view of the entire foregoing 14 I conclude Respondent, by the conduct described above, violated section 7116(a)(1) of the Statute as alleged and recommend the Authority issue the following:
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 the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, shall:
1. Cease and desist from:
(a) Interfering with the rights of Department of Defense Dependents Schools' (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by refusing to allow the Overseas Education Association, [ v29 p13 ] the exclusive representative of DODDS employees, to distribute handbills related to their terms and conditions of employment at the base exchange and commissary.
(b) In any like or related manner, interfering with, restraining or coercing any employee of DODDS in the exercise of 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) Post at Air Force facilities at Clark Air Base copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Commander of Clark Air Base or a designated agent and shall be posted and maintained for sixty 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.
(b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, 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.
SALVATORE J. ARRIGO Administrative Law Judge Dated: April 16, 1987 Washington, D.C.
[ v29 p14 ]
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 interfere with, the rights of Department of Defense Dependents Schools' (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by refusing to allow the Overseas Education Association, the exclusive representative of DODDS' employees, to distribute handbills related to their terms and conditions of employment at the base exchange and commissary.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce DODDS' employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
______________________________ (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 IX, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000. [PAGE]
Footnote 1 The Authority adopted this conclusion of the Judge and as rationale in Department of Commerce, Bureau of the Census, 26 FLRA No. 88 (1987), slip op. at 8-11, petition for review filed sub nom. Department of Commerce, Bureau of the Census, and the General Services Administration v. FLRA, No. 67-3845 (4th Cir. June 29, 1987), which issued after the Judge's Decision in the case before us.
Footnote 2 There are approximately 265 unit employees employed by DODDS at Clark Air Base.
Footnote 3 Actually three leaflets were attached to Dr. Carron's correspondence to Colonel Kimball.
Footnote 4 Although not specifically stated in the letter, the Union desired to distribute the leaflets at the base exchange and the commissary and Respondent understood the Union was requesting permission to distribute handbills at those locations.
Footnote 5 Colonel Kimball was on leave to the United States and did not testify in these proceedings.
Footnote 6 Colonel Hendrickson also serves as the base Dependent Schools Officer and advisor to the Installation Advisory Council, a group of parents and teachers that are representatives of each of the schools and the DODDS' representative.
Footnote 7 Section 7116(a)(1) states 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 . . ."
Footnote 8 I reject Respondent's contention that there must exist a "labor dispute" in order to give rise to the Union's right to handbill. In my view the right to handbill rests upon the Union's concerns over "working conditions" not the existence of a "labor dispute."
Footnote 9 Indeed Counsel for Respondent acknowledged that working conditions were obviously "beneath the surface" of the leaflets.
Footnote 10 Section 7102 provides, in relevant part: "Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right -- " (1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government# the Congress, or other appropriate authorities . . ."
Footnote 11 See also 5 U.S.C. 7211 which provides: "The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied . . ."
Footnote 12 Obviously certain areas on many military facilities are unrestricted and open to civilian employees and families of both civilian and military personnel.
Footnote 13 Indeed, Respondent does not claim that the leafleting would disrupt Respondent's mission at the Air Base.
Footnote 14 I have also considered various other related defenses and arguments raised by Respondent and find them to be without mer