34:1129(172)CA - - Air Force, Scott AFB, IL and NAGE Local R7-23, SEIU - - 1990 FLRAdec CA - - v34 p1129
[ v34 p1129 ]
The decision of the Authority follows:
34 FLRA No. 172
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R7-23, SEIU, AFL-CIO
February 28, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The complaint alleged that by failing and refusing to allow the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO (the Charging Party or the Union) to place a paid advertisement in the Command Post newspaper, the Respondent interfered with, restrained, and coerced employees in the exercise of their rights under section 7102 of the Federal Service Labor-Management Relations Statute (the Statute) in violation of section 7116(a)(1) of the Statute. The Judge found that the Respondent did not commit the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed.
The General Counsel filed exceptions to the Judge's decision. The Respondent filed an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings.
For the following reasons, we agree with the Judge that the Respondent did not violate section 7116(a)(1) of the Statute.
The Union represents a unit of appropriated fund, General Schedule, and Wage Grade civilian employees at the Respondent Air Force Base. Following the June 30, 1986 performance rating cycle for General Schedule employees, the Union received reports that performance ratings had been downgraded because of a quota system. After the Respondent denied the Union's request for information about, and an opportunity to negotiate on, the alleged quota system, the Union filed a grievance.
The Union president, Carl Denton, also decided to place an advertisement in the base newspaper, the Command Post, "to notify all members of the bargaining unit that [the Union] had filed a grievance concerning an asserted unlawful quota system, to invite other employees to join the grievance, and to solicit Congressional support[.]" Judge's Decision at 3. The advertisement was entitled "Quota System Implemented at Scott Air Force Base for Civilian Performance Ratings." The advertisement stated, in part, that any employees affected by the alleged quota system should contact the Union or the Congressmen listed in the advertisement.
The Command Post is a commercial enterprise newspaper for which the Respondent contracts the printing to a private publisher. The publisher has held this contract for the past 18 years and obtains revenue solely by selling advertising space. The publisher regularly screens advertising copy to reject advertisements it deems "objectionable" and has rejected between 100 and 200 advertisements during the previous 2 years. In addition, the Respondent's Public Affairs Office reviews proposed advertisements before publication and rejects "objectionable" advertising content. Id. The Union had run advertisements previously in the Command Post. For example, a Union advertisement on credit cards for Union members was published, without objection, in the Command Post.
The Union submitted its advertisement about the alleged quota system to the publisher. On her own initiative, the publisher submitted it to the Respondent's Public Affairs Office for review.
The base commander informed Denton by letter that the advertisement could not be published in its current form because it "appears to be misleading and does not fall within the bounds of advertising propriety." Id. at 4. At a subsequent meeting, representatives of the Respondent told Denton that they would consider placing the advertisement in the newspaper if: (1) the headline were changed to state "'Was the Quota System Implemented at Scott Air Force Base?'"; and (2) "verbiage" were added to say "that it's the [U]nion's opinion that such and such was done by the base." Id.
The Union did not change the advertisement, and the advertisement was not published in the Command Post. The Union had also submitted an advertisement concerning flexitime which, although approved by the Respondent, was not published because it was intended to be used only as a "filler" with the quota system advertisement. Id. at 3.
III. Administrative Law Judge's Decision
The Judge stated that the "denial of the right to communicate does not automatically constitute interference" within the meaning of section 7116(a)(1) of the Statute because "there must be a general right to communicate through the means sought to be used." Judge's Decision at 8. The Judge concluded that the General Counsel had not established that the Respondent violated section 7116(a)(1) by interfering with the right of the Union representative to communicate with employees concerning conditions of employment or by interfering with protected communication itself. Id. at 11.
The Judge found that the Command Post was "beyond question" an "arm of the Base" and that there was "no assertion that the Respondent does not have the absolute right to determine the editorial content of the Command Post." Id. at 6, 8. The Judge also found that the Respondent's Public Affairs Office edited advertisements and rejected those "deemed objectionable." Id. at 6.
The Judge agreed with the General Counsel that "the Command Post is not a bulletin board[,]" but noted that "[w]ith respect to neither [the Command Post nor a bulletin board] does a union, or an employee, have a statutory right of use." Id. at 9. The Judge concluded that the Union "was accorded no special right or privilege to advertise in the Command Post[.]" Id. at 10. The Judge further found that "permission to advertise in the Base newspaper has been addressed by the parties in their Agreement" because Article II, Section 1 of the agreement incorporated by reference Air Force Regulation (AFR) 190-1, Chapter 2, Section B ("Air Force Newspapers"). Id. at 9.
Article II, Section 1 of the parties' collective bargaining agreement provides in part:
In the administration of all matters covered by this Agreement, it is agreed that officials and employees are governed by existing or future laws and regulations[.]
Judge's Decision at 6.
Air Force Regulation 190-1, Chapter 2, Section B, Paragraph 2-15 n. provides in part that advertisements about Union activities are to be coordinated "with the installation civilian personnel labor relations office and the staff judge advocate for propriety. Advertisements must not be worded to give the impression that the Air Force endorses or sponsors their content in any way." See id. at 9. The Judge concluded that the provisions of this regulation applied to the Union's advertisement and stated that the advertisement "must meet Respondent's standard for propriety; must not give the impression of Air Force endorsement or sponsorship; and must not interfere with mission performance." Id. at 10.
The Judge found that nothing in the record "shows that Respondent discriminated in denying publication without change, of the Union's 'Quota System' advertisement." Id. The Judge found instead that "the Union's credit card advertisement was published; the Union's flexitime advertisement was approved for publication; and the Union's 'Quota System' advertisement was not rejected as such but, rather, Respondent suggested certain changes." Id. The Judge concluded that "the Union refused to permit Respondent to exercise its conceded right to edit the content of advertisements that appear in the Command Post." Id. The Judge found, therefore, that the Respondent's failure to publish the advertisement as written did not constitute interference with the Union's right to communicate with unit employees concerning conditions of employment in violation of section 7116(a)(1) of the Statute. Id. at 11.
IV. Positions of the Parties (*)
A. General Counsel's Contentions
The General Counsel objects to the Judge's "essentially flawed reasoning" and contends that the Union's "right to communicate with employees through an ad in the Base newspaper was not dependent upon the contract." General Counsel's Brief in Support of Exception at 2. According to the General Counsel, the Judge found that the "Respondent and the Union did not consider and address the subject of paid advertisements in the Base newspaper when they negotiated their current contract." Id. at 2 (emphasis in original). The General Counsel states that this was "a key finding" that "is not given sufficient importance[.]" Id. The General Counsel further states that the Union's "communications in connection with conditions of employment are protected and have enjoyed wide latitude under the Statute" and that the Union's advertisement was "well within the bounds of . . . protection" in this case. Id. at 4.
The General Counsel contends that, even assuming that the advertising standards in AFR 190-1 apply to the Union's advertisement, the advertisement was "within the bounds of advertising propriety by any standard" and was "prevented from publication when and as submitted because Respondent did not like its content." Id. The General Counsel also asserts that "others of the Union's ads were run in the newspaper without objection . . . because they did not criticize, or appear to criticize, a management practice in connection with conditions of employment." Id. at 3-4. The General Counsel argues that the Union was "in the position of other advertisers," but that its advertisement was subject to "discriminatory review" and was subject to "closer scrutiny" than are advertisements from other advertisers, in violation of section 7116(a)(1) of the Statute. See id. at 2, 3, 4 (emphasis in original).
B. Respondent's Contentions
The Respondent contends that the General Counsel's exception does not comply with section 2423.28(a) of the Authority's Rules and Regulations and that counsel for the General Counsel "seems to do nothing more than indicate her disagreement with the ALJ[.]" Respondent's Brief In Opposition to the General Counsel's Exception at 3. The Respondent argues that counsel for the General Counsel "gives no statement of the case, nor does she identify specifically the questions to be argued or the points of fact or law which demonstrate any errors in the Judge's reasoning." Id. The Respondent concludes that because the General Counsel's exception does not specifically identify "how, why or where the Judge erred," the exception does not meet regulatory requirements and should be dismissed. Id. at 4.
The Respondent states that "as with bulletin boards or other public areas on agency property, the Union had no statutory right of access to that medium" and maintains that the General Counsel "has conceded that point." Id. at 5-6. The Respondent argues that as "the Union clearly enjoyed no special right of access" to advertise in the Command Post, "the real question is whether or not the Union was treated differently than any other advertiser." Id. at 6, 7. The Respondent asserts that the General Counsel "introduced no evidence as to exactly . . . how the Union was treated differently with regard to editorial advertisements or even that the Union was treated differently." Id. at 7. The Respondent also argues that the General Counsel "introduced no evidence to prove" that the reason the Respondent reviewed the advertisement was because "it was a Union ad and that the refusal to run it was because of its content." Id.
The Respondent further asserts that the Judge's finding that the Union was required to comply with AFR 190-1 is based on "a clear interpretation" of the contract or is "at least reasonable," and that, "therefore[,] the case becomes a matter of contractual interpretation, best left to the [a]rbitrator." Id. at 8.
A. Procedural Issue
We reject the Respondent's contention and find that the exceptions, which incorporate the General Counsel's brief to the Judge, meet the requirements of section 2423.28(a) of the Authority's Rules and Regulations.
B. Whether the Respondent Violated Section 7116(a)(1) of the Statute
The issue before us is whether the Respondent violated section 7116(a)(1) of the Statute by failing to publish the Union's advertisement as written. We agree with the Judge that the Respondent did not violate section 7116(a)(1) of the Statute.
The right to publicize matters affecting unit employees' terms and conditions of employment is protected under section 7102 of the Statute. Department of the Air Force, 3rd Combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA 1044, 1048 (1987). Management's interference with that right violates section 7116(a)(1) of the Statute. General Services Administration, 27 FLRA 643, 645 (1987).
The right to publicize matters affecting unit employees' terms and conditions of employment has been found to encompass situations where: (1) employees distribute handbills or literature on behalf of the union in nonwork areas during nonwork time, General Services Administration; (2) a union president sends letters written on union stationery to members of Congress and to the President of the United States seeking their assistance on the agency's decision not to reassign an employee, and urges other union members to do the same, Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 21 FLRA 757 (1986); and (3) an employee, acting in his capacity as a union representative, gives an interview to a newspaper reporter concerning the possibility of staff reductions at the agency, Bureau of Prisons, Federal Correctional Institution (Danbury, Connecticut), 17 FLRA 696 (1985).
The right of Federal employees under section 7102 of the Statute to publicize matters affecting unit employees' terms and conditions of employment is similar to the right of private sector employees under section 7 of the National Labor Relations Act (the NLRA) to publicize matters affecting unit employees' terms and conditions of employment. See Sahara Tahoe Corp., 292 NLRB No. 86 (1989). See also NLRB v. Pizza Crust Company of Pennsylvania, Inc., 862 F.2d 49, 54 (3d Cir. 1988) (the NLRB "could reasonably conclude" that an employer's rules barring off-duty employees from distributing union literature outside work areas tend to interfere with employees' section 7 rights and, therefore, violate section 8(a)(1) of the NLRA).
Although the statutory right to publicize matters affecting working conditions extends to using the employer's property as the site of communication--as in handbilling in nonwork areas--that right does not extend to using the employer's property as the means of communication. See Department of Defense, Department of the Air Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA 239, 244 (1983) (Homestead Air Force Base) (authorization to post material on agency property is governed by the agency's rules and limitations). Thus, neither a union nor an employee has a statutory right to post material in public areas on agency property. Federal Election Commission, 20 FLRA 20, 21 (1985).
In the case before us, the Judge found that the Command Post "beyond question is an arm of the Base[.]" Judge's Decision at 6. We agree with the Judge that the control exerted over the Command Post by the Respondent extends to the newspaper's advertising space. We find that advertising in an agency's newspaper is similar to posting on agency bulletin boards or in other public areas. Unlike protected handbilling and leafletting, postings on agency property and advertisements in agency newspapers become affixed to or a part of agency property. Access to an agency's property, including agency-controlled newspapers, requires the agency to provide the means for the communication. Because placing an advertisement in an agency-controlled newspaper is analogous to posting material on agency property and because a union does not have a statutory right to post material on an agency's property, we find that a union does not have a statutory right under section 7102 to advertise in an agency's newspaper. See Federal Election Commission. Therefore, the Union in this case did not have a statutory right to advertise in the Respondent's newspaper.
Although a union does not have a statutory right to advertise in an agency-controlled newspaper, it may establish a right to advertise in such a newspaper or a right of access to other agency property by contract or past practice. Where a right of access to agency property has been established by past practice, an employer would reasonably tend to discourage union activity in violation of section 7116(a)(1) of the Statute if: (1) the employer discriminatorily denies the union the use of an agency bulletin board or other public area (Department of Defense Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy), 21 FLRA 849, 850, 863-64 (1986)) (DODDS); or (2) the employer removes union material from the employer's property where the union had been permitted to post notices and the posted material meets the employer's established standards (Department of Labor, Office of Workers' Compensation Programs, Branch of Special Claims, 11 FLRA 77, 83 (1981), citing Container Corporation of America, 244 NLRB 318 (1979), enforced in relevant part, 649 F.2d 1213 (6th Cir. 1981)).
Where a union's right of access to agency property is established through collective bargaining, however, the remedy for a violation of that right in most instances is contractual, not statutory. See Homestead Air Force Base, 13 FLRA at 246 (the activity's conduct in limiting the posting or removal of union materials on the activity's bulletin boards involved a dispute over a limited, contractual right to bulletin boards and was "at most an arguable breach of contract for which contractual grievance machinery exists"). Of course, if an agency is found to have repudiated provisions of a negotiated agreement, that repudiation constitutes an unfair labor practice. See Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri, 29 FLRA 107, 115 (1987). To the extent that previous Authority decisions suggest that, absent a finding of contract repudiation, an unfair labor practice may be found for a violation of a union's right of access to agency property that has been established solely through collective bargaining, those cases will no longer be followed. See Federal Election Commission, 20 FLRA at 21; U.S. Department of Justice, Federal Prison System, Federal Correctional Institution, Milan, Michigan, 17 FLRA 1023, 1036-37 (1985).
The General Counsel contends that the Union's advertisement was "within the bounds of advertising propriety by any standard" and was subject to "discriminatory review[.]" General Counsel's Brief in Support of Exception at 4. The Judge found that the Respondent routinely screened advertisements from all sources and rejected those "deemed objectionable." Judge's Decision at 6. The Judge concluded that nothing in the record "shows that Respondent discriminated in denying publication without change, of the Union's 'Quota System' advertisement." Id. at 10. Indeed, the Judge found that the changes requested would have been consistent with the specific mandate of AFR 190-1, which he found the Respondent was required to apply.
Based on the record in this case and the Judge's findings noted above, we find that the General Counsel's contentions are unsupported. Even assuming that a right to advertise in the Command Post had been established by past practice, the General Counsel has not shown that by failing to publish the Union's advertisement as written, the Respondent discriminated against the Union or otherwise tended to discourage Union a