29:1068(78)CA - Marine Corps, Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan and Overseas Education Association, Pacific Region -- 1987 FLRAdec CA
[ v29 p1068 ]
The decision of the Authority follows:
29 FLRA No. 78 UNITED STATES MARINE CORPS MARINE CORPS BASE CAMP SMEDLEY D. BUTLER OKINAWA, JAPAN Respondent and OVERSEAS EDUCATION ASSOCIATION PACIFIC REGION Charging Party Case No. 98-CA-60358
The Administrative Law Judge issued the attached Decision in this case finding that the Respondent had 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 a non-work area, handbills concerning matters affecting unit employees' terms and conditions of employment. The Judge recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's Decision, 1 and the General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the the Statute, We have reviewed the rulings of the Judge made at the hearing and [PAGE] find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, 2 and recommended order.
The Respondent argued for the first time in its exceptions that handbilling conducted at a secondary employer's location concerning a dispute with the primary employer should not be protected under section 7102 of the Statute. The Respondent relied on existing private sector case law.
Under section 2429.5 of our Rules and Regulations, we will not consider issues which have not been presented in proceedings before a judge. in any event, the Judge's conclusions make it clear that he viewed the application of private sector case law to be inappropriate to the facts of this case. 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. We agree with the Judge that the application of private sector "secondary activity" analysis and related private sector case law to the facts of this case is inappropriate. See Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA No. 77 (1987).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the United States marine Corps, Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan shall:
1. Cease and desist from:
(a) Interfering with the rights of Department of [ v29 p2 ] 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 base 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 Marine Corps facilities at Camp Smedley D. Butler copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Base Commander and shall be posted and maintained for sixty 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 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.
Issued, Washington, D.C.,October 23, 1987
Jerry L. Calhoun, Chairman
Henry B Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p3 ]
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 base 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]
UNITED STATES MARINE CORPS, MARINE CORPS BASE, CAMP SMEDLEY D. BUTLER, OKINAWA, JAPAN Respondent and OVERSEAS EDUCATION ASSOCIATION, PACIFIC REGION Charging Party Case No. 98-CA-60358 Robert F. Griem, Esq. For the Respondent Ann Hurst, Esq. For the Charging Party Stefanie Arthur, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge
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 sometime 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 [PAGE] alleging Respondent violated the Statute by refusing to allow the Union to engage in handbilling at Respondent's commissary.
A hearing on the Complaint was conducted at Kadena Air Base, Okinawa, Japan 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 Association, affiliated with the National Education Association, 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 two schools at Camp Butler on Okinawa. 3 Camp Butler is under the control of the United States Marine Corps, a separate service within the Department of the Navy and the Department of Defense.
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 to where budget cuts should take place. Around this [ v29 p2 ] 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 negotiating 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 change 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 Okinawa is the American Educators' Association - Okinawa (herein AEAO or also sometimes the Union). Shortly after February 1986 AEAO members, as a form of protest to the budget cuts, began filing grievances with DODDS on its failure to provide substitute teachers during the absence of specialty teachers, a recently implemented result of DODDS' budget reduction. Further, on April 28, 1986 AEAO President Sarah Nowlin, who was also a member of the DODDS' staff at Camp Butler, sent the following letter to the base Commanding General, J. L. Day: 4
"The American Educators' Association -Okinawa is vitally concerned about the implications of the Gramm-Rudman-Hollings cutbacks and the effects these cutbacks will have on the education of children in DODDS schools. It is to this end that we wish to inform the parents of DODDS' students of the ramifications of this bill.
"We are seeking permission to hand out the enclosed leaflets to parents of our students. In order to reach as many [ v29 p3 ] parents as possible, we are requesting permission to distribute these flyers at the (commissary) on MCB Butler on Saturday, 3 May, or Saturday, 17 May.
"Thank you for your time and consideration of this matter. Please contact me . . . for verbal confirmation if permission is granted for 3 May 1986."
The enclosed leaflet entitled "Teachers to Parent," stated:
"Teachers and parents share a mutual concern for providing a quality education for children. The budget of the Department of Defense Dependents Schools is being cut. It is being cut in such a way that teachers feel the quality of your child's education will be affected.
"LARGER CLASS SIZES
"DODDS is planning to replace only two of every three teachers who leave the system. When teaching vacancies aren't filled, class sizes will increase. How many students are in your child's class? Thirty? If five more students have to be added, that will decrease the limited time the teacher can spend with your child by at least 15%.
"In the United States the number of students enrolled per teacher employed averaged about 18 students for each teacher. How will that number compare with the average in DODDS next year? It's an important question when judging the quality of education your child will receive.
"NO RESOURCE TEACHERS
"DODDS is considering eliminating resource teaching positions at the elementary school level. Children would not have special teachers for art, music, physical education [ v29 p4 ] and reading. Schools in the United States have resource teachers. Shouldn't DODDS too?
"Only 'essential supplies' are being ordered by DODDS administrators. What does 'essential' mean-in your child's school? Will he/she have the workbooks and other materials that are needed now and next year?
"LIMITED EXTRACURRICULAR ACTIVITIES
"DODDS has proposed reducing the funding for extracurricular activities by 50% in SY 86-87. Your child may not have the opportunity to learn and grow through participation in sports, music, and other enrichment activities.
"TEACHERS ARE CONCERNED
"The AEAO believes that parents and teachers working together can bring about changes to improve the quality of education.
"Let your voice be heard!
"Dr. Beth Stephens, DODDS Dir. 2461 Eisenhower Avenue Alexandria, VA 22331-1100
"Your Elected Representatives
"The Honorable House Office Building Washington, D.C. 20515
"Senator Senate Office Building Washington, D.C. 20510
"Overseas Education Association/NEA We teach the children." [ v29 p5 ]
By letter to AEAO dated May 2, 1986 Respondent indicated it needed additional time to evaluate the request and denied interim permission to distribute the literature. After discussing the matter with DODDS' Chief of Labor Relations for Okinawa and the Marine Corps Labor Relations Branch in Washington, D.C., Respondent denied the request by letter of May 15, 1986, stating:
"Distribution of the flyer contained in your request would constitute political activity. This Command maintains a policy of neutrality in political issues and therefore does not permit such activity aboard Marine Corps' property on Okinawa."
Accordingly, the Union did not distribute the leaflet and the instant unfair labor practice charge was filed.
Camp Butler is considered a closed base in that it is surrounded by a fence, has a number of guarded gates and does not permit open access to the general public. However, civilian employees of the military and DODDS, and their dependents, have the same rights to ingress and egress at the base and are free to travel about the base to utilize whatever general facilities the base has to offer such as the commissary, base exchange, theaters, shops and recreational facilities. 5 The record reveals no military regulations relating to the distribution of handbills by civilians at military installations in general or Camp Butler in particular. Further, the record contains no probative evidence that Respondent permitted any form of handbilling on the base.
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. 6 [ v29 p6 ]
Respondent denies any violation of the Statute, essentially arguing that neither the Union nor the literature it sought to distribute conveyed the existence of a labor dispute or concern over teachers' working conditions; the only objective discernible was political action on the part of third parties who were not Respondent's employees; and such exhortation to political action is inappropriate for a military base and is therefore outside Statutory protection.
To begin, I find the literature the Union sought to distribute was directed to its concern with the actions of DODDS and to seek congressional support for matters impacting on teachers' working conditions. 7 The leaflet, after first noting that DODDS' budget was being cut, attacked DODDS' priorities in assigning areas of program curtailment. Thus, the first paragraph mentions not only DODDS' budget being cut, but also "being cut in such a way" as to adversely impact on students. While the language of the leaflet regarding particular actions by DODDS is couched in a manner to highlight adverse effects on students, it is quite apparent that the cutbacks and actions of DODDS were likewise adverse to teachers' conditions of employment. Specifically, replacing only two of every three teachers who leave the system decreases employment opportunities for teachers and larger class size increases a teacher's workload. Eliminating resource teachers would similarly curtail teachers' employment opportunities and increase workloads. Since extracurricular activities utilize teachers as instructors and monitors, again, reduction of funding would obviously cut teacher employment opportunities. Clearly, the matters which concerned the Union were directly related to teachers' working conditions and readily recognizable as such.
The objective of the leaflet was to solicit parents of students to make common cause with teachers and voice opposition to a budget cut and allocations resulting in cuts which impacted on DODDS' schools. Parents were encouraged to write both DODDS and Congress obviously to protest the cuts. While the Union's April 28 letter requesting Respondent's permission to distribute the leaflet indicated the cuts were the result of Gramm - Rudman, the leaflet itself [ v29 p 7 ] did not specifically indicate the source of the cuts which AEAO wished parents to challenge. The budget cut might have originated from Gramm - Rudman reductions or DOD cuts in DODDS' budget. DODDS' own allocations of its budget was particularly questioned. Nevertheless, the objective of the leaflet, to have parents protest cuts to DODDS and the Congress on matters which had a direct bearing on teacher's working conditions and the Union found objectionable, is unquestionable.
The Union herein essentially sought to communicate its displeasure on working conditions to the public. 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 with rights guaranteed by section 7102 of the Statute. 8 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 Regions 21 FLRA 757 (1986). [ v29 p8 ]
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 the 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) at 383. 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. 9 Communicating with the public to encourage others to make common cause with the employees' collective bargaining representative, which occurred herein, is merely a logical extension of a union's section 7102 rights and accordingly I conclude that such conduct is protected by the Statute.
Having found that the Union's distribution of the handbill was protected activity and the leaflet clearly conveyed concern over working conditions, two questions remain: (1) Can Respondent's refusal to permit distribution of the leaflet 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?
OEA is the collective bargaining representative of DODDS' employees who work on Camp Butler and the Marine Corps, although it has control over the base, has no collective bargaining relationship with DODDS' employees. However, DODDS and the Marine Corps are both components of the Department of Defense. DODDS' facilities are located on the base which is under the control of the Marine Corps. DODDS' employees work on the base to provide teachers for children of military and civilian personnel of the Marine Corps. [ v29 p9 ]
Thus, DODDS' employees are not merely public visitors or strangers to the base. Rather, they enjoy a special status by reason of their mutual identity of interests with the Marine Corps and the interrelationship of organizations and endeavors between DODDS and the Marine Corps. Accordingly, I conclude there exists a sufficient nexus between the Marine Corps and DODDS' employees to hold the Marine Corps 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 Marine Corps. 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 in protected activity. I recognize that even "public" areas on military facilities, 10 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 [ v29 p10 ] resent on the base as employees of DOD, the same parent body as the Marine Corps, to educate children of employees and military personnel of the Marine Corps. In these circumstances I perceive little possibility that by respecting the Union's right to handbill at Camp Butler the Marine Corps 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 commissary, can be construed to present an embarrassment to the Marine Corps or a threat or danger to the discipline, order or morale of the troops or prejudice Respondent's interests in any way. 11 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 leaflet described above at the base commissary.
Therefore, in view of the entire foregoing 12 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 United States Marine Corps, Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan 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 [ v29 p11 ] 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 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 Marine Corps facilities at Camp Smedley D. Butler copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the base Commander 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 Orders as to what steps have been taken to comply herewith.
SALVATORE J. ARRIGO Administrative Law Judge Dated: April 16, 1987 Washington, D.C.
[ v29 p12 ]
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 S 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 Respondent submitted a postmarked certified mail receipt which showed that its exceptions were filed timely in accordance with section 2429.21(b) of the Authority's Rules and Regulations. See Veterans Administration, Veterans Administration Medical Center, Muskogee, Oklahoma, 29 FLRA No. 5 (1987).
Footnote 2 In reaching his conclusion that the Respondent interfered with the rights of Department of Defense Dependents Schools employees, the Judge relied on another judge's decision that had not been decided by the Authority at that time. We issued our decision in Department of Commerce, Bureau of the Census, 26 FLRA No. 88 on April 29, 1987, petition for review filed sub nom. Department of Commerce, Bureau of the Census, and the General Services Administration v. FLRA, No. 87-3845 (4th Cir. June 29, 1987) adopting that portion of the decision relied on by the Judge in the instant case.
Footnote 3 There are approximately 130 unit employees employed by DODDS at Camp Butler.
Footnote 4 The letter was on official AEAO stationery, and carried a logo with, inter alia, an inscription stating: "Pacific Area Leaders Council Representing the Pacific Area Local Associations."
Footnote 5 Camp Butler is actually a military command and has within it a number of Marine Corps bases including Camp Poster which contains the commissary.
Footnote 6 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 the chapter . . ."
Footnote 7 In my view the right to handbill rests upon the Union's concern over working conditions and not upon the existence of a "labor dispute."
Footnote 8 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 . . ."