45:0659(58)CA - - Air Force, Barksdale AFB, Bossier City, LA and NFFE Local 1953 - - 1992 FLRAdec CA - - v45 p659
[ v45 p659 ]
The decision of the Authority follows:
45 FLRA No. 58
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(1) and (3) of the Federal Service Labor-Management Relations Statute (the Statute) by permitting a non-employee organizer of the American Federation of Government Employees (AFGE) access to its facilities for the purpose of organizing a campaign to represent its employees at a time when those employees were represented by the Charging Party.
The Respondent is an Air Force base in Louisiana. The Charging Party, National Federation of Federal Employees,
Local 1953 (NFFE), is the exclusive bargaining representative for a unit of the Respondent's professional and non-professional civilian employees who are paid from appropriated funds. At all times material to this case, NFFE and the Respondent were parties to a collective bargaining agreement that expired on April 13, 1991.
On December 11, 1990, the National Organizer for AFGE sent a letter to the Commander of the base, stating in part as follows:
By way of this letter, [AFGE] is requesting access to the employees of Barksdale Air Force Base. The purpose of this request is for representational recognition.
It is understood that non-recognized labor organizations must first demonstrate that the targeted unit employees are inaccessible to alternate means of communication, as we do not have the home phone and mailing addresses to these employees our communication has been ineffective, therefore, we are requesting your permission to contact the employees at their work site.
The campaigning activities would be restricted to the entrance and/or exit of the employees['] work areas and would not in any way interfere with their job.
We would also like to request a roster containing the breakdown on the number of employees and the location in which they work. The period for which this request is made, to begin, December 17, 1990 through March 1991.
Stipulation Exhibit 3.
By letter dated December 17, 1990, the Respondent responded to the request, stating in part:
Normally, non-employee representatives of unions that do not have exclusive representative status for agency employees have no right of access to the agency premises to campaign; however, you have provided sufficient justification that will allow your permission. Therefore your request . . . is approved.
Stipulation Exhibit 4.
From December 17, 1990, through March 31, 1991, a nonemployee organizer for AFGE had access to the base for the purpose of organizing for representational recognition by AFGE. At that time, no petition for representation had been filed with the Authority by AFGE, but the Respondent was unaware of this fact.
The parties stipulated that at a hearing the Respondent would have produced testimony to show that during the period from August 1990 to April 1991, the base was under a heightened state of security due to the Desert Shield and Desert Storm actions and that the base was under a threat of anti-terrorist activity against its installations and personnel. According to the stipulation, the Respondent would have argued that the base is not an open base even during normal times; that during this period the AFGE organizers would not have been allowed to campaign directly outside the gate due to security reasons; that one bargaining unit employee was engaged in campaigning for AFGE, but that management would not have provided that employee, AFGE, or the incumbent Union with the names and home addresses of unit employees; and that, therefore, the bargaining unit employees were essentially inaccessible to AFGE. Accordingly, the Respondent would have argued that it permitted the nonemployee on the base to conduct an organizing campaign on behalf of AFGE in accordance with the Department of Defense Civilian Personnel Manual.1/
In January 1991, the Respondent and the Union began negotiations for a new collective bargaining agreement covering the unit employees, which was effective from May 8, 1991, to May 8, 1994.
III. Positions of the Parties
A. The Respondent
The Respondent concedes that an agency violates the Statute if it provides a labor organization with services or the use of its facilities at a time when that union does not have equivalent status with the exclusive representative of the agency's employees.2/ The Respondent argues, however, that the situation in this case falls within the exception to that rule, which was articulated in Department of the Army, U.S. Army Natick Laboratories, Natick, Massachusetts, 3 A/SMLR 193 (1973) (Natick).
The Respondent contends that, under Natick, it lawfully granted access to the AFGE organizer because it is required under paragraph 3.5 of the Civilian Personnel Manual to allow a rival union some means of communicating with employees if the rival union makes a diligent effort to contact employees and fails to do so because the employees are inaccessible. The Respondent argues that in the circumstances of this case, AFGE had no reasonable alternative means of communication with the employees. It notes that AFGE does not have the home telephone or mailing addresses of the employees and that the Respondent "is prohibited from releasing these under a series of Circuit Court decisions." Respondent's Brief at 9. It also describes the situation on the base during the military operations of Desert Shield and Desert Storm, when it "was under a heightened state of security" and "an anti-terrorist threat condition." Id. It argues that under Authority precedent it may "reasonably control . . . unions which are involved in elections campaigns from creating internal security risks to agency personnel or equipment[.]" Id. at 10. It asserts, therefore, that it properly allowed the organizer to solicit on base, adding that it was totally unaware that AFGE had failed to file a petition for representation with the Authority.
The General Counsel points to the fact that AFGE never obtained equivalent status with the incumbent Union, and argues that, as there were no extraordinary circumstances that prevented AFGE from reaching the Respondent's employees through other means, the Respondent violated section 7116(a)(3) by allowing AFGE access to the base to conduct its organizing campaign.
The General Counsel disputes the Respondent's defense that AFGE had no alternative means of reaching the employees. The General Counsel points out that in its letter requesting access to the base, AFGE stated only that it did not have the employees' telephone numbers and mailing addresses, and said nothing regarding other attempts by AFGE to contact unit employees through, for example, the media, or any other efforts by the employee organizer. The General Counsel also asserts that the Respondent did not request any further information on this issue. The General Counsel argues that "[e]ssentially, Respondent determined, with no supporting evidence, to grant equivalent status to an outside union which had no such legal status, since no petition had been filed." Id. The General Counsel notes the Respondent's statement that it was unaware that AFGE had not filed a representation petition, and states that the "Respondent cannot argue that it was ever under the impression that a representation petition had been filed or that AFGE had obtained equivalent status." Id. at n.2.
The General Counsel also argues that in the Respondent's letter granting access to AFGE, the Respondent made no mention of any constraints resulting from the military operations or any heightened security. The General Counsel suggests that the use of such a defense at this point is "merely an attempt to justify actions that cannot be justified." Id. at 7.
Finally, the General Counsel argues that the Civilian Personnel Manual cannot sanction the Respondent's failure to follow the Statute because the Respondent summarily granted AFGE access without determining whether AFGE had in fact made a diligent effort to contact the employees, as required by the Manual.
IV. Analysis and Conclusions
Under section 7116(a)(3) of the Statute, an agency unlawfully assists a labor organization when it grants a rival union without equivalent status access to its facilities for the purpose of organizing its employees. See, for example, Gallup Indian Medical Center, Gallup, New Mexico, 44 FLRA 217, 224 (1992) (Gallup Indian Medical Center). As an exception to this rule the Authority has held that a union lacking equivalent status "'may obtain access to an agency's facilities if it demonstrates to the agency that, after diligent effort, it has been unable to reach the agency's employees through reasonable, alternative means of communication.'" Social Security Administration, 45 FLRA No. 27, slip op. at 16 (1992) (quoting American Federation of Government Employees v. FLRA, 793 F.2d 333, 337 n.9 (D.C. Cir. 1986)).
This exception was first applied in Natick by the Assistant Secretary of Labor for Labor-Management Relations (Assistant Secretary) under Executive Order 11491, the predecessor to the Statute. Natick involved a facility that was guarded and enclosed by a high fence. Although the evidence established that the employees were difficult to reach entering and exiting the facility, the Assistant Secretary concluded that nonemployee organizers for a rival union that did not have equivalent status could not gain access to the facility because the employees were not inaccessible outside its premises. In reaching this conclusion, the Assistant Secretary examined whether the rival union had "made a diligent, but unsuccessful, effort to contact the employees away from the [employer's] premises and [whether] its failure to communicate with the employees was based on their inaccessibility." 3 A/SLMR at 196. Finding insufficient evidence of inaccessibility under this analysis, the Assistant Secretary found that the agency had violated the Executive Order by permitting access to its premises to nonemployee organizers for the rival union.
The Authority has applied Natick in two recent cases. In Social Security Administration, the Authority determined that the employees were not inaccessible even though the employees lived throughout a large metropolitan area and were difficult to reach when entering and exiting the facility. The Authority pointed to the fact that the rival union had had "some success" in attempting to contact employees through such means as the use of a commercial search firm, searches of local telephone directories, distribution of leaflets on city buses entering the facility, and meetings with employees. 45 FLRA No. 27, slip op. at 18. In addition, the Authority noted that there was no evidence that the rival union had requested that employees distribute literature during their non-work times in non-work areas on the agency's premises, a factor set forth in Natick. The Authority found that it had not been established that the inability of the rival union to contact the employees was "due to the employees' inaccessibility, rather than other factors such as cost." Id. Therefore, the Authority concluded that no special circumstances existed to warrant applying the exception to the general rule that an agency may not grant access to a rival union without equivalent status. See also Gallup Indian Medical Center (Authority adopted findings and conclusions of the Administrative Law Judge, who concluded that the Respondent could not avail itself of the Natick exception in the absence of any showing that it had ascertained whether the rival union had conducted a diligent effort to contact employees away from its premises).
In this case there is no evidence that the Respondent inquired as to the measures taken by AFGE to contact the employees on the Respondent's premises without using nonemployee organizers to do so. Significantly, there is evidence that one employee already is engaged in campaigning for AFGE. It is established Authority law that the Respondent may not interfere with that employee's right to distribute materials for AFGE on its premises if the distribution takes place in non-work areas during non-work times. See, for example, Internal Revenue Service, North Atlantic Service Center, 7 FLRA 596 (1982). Nonetheless, there is no evidence that the Respondent took into account that employee's efforts on behalf of AFGE when determining that its employees were inaccessible to AFGE's organizing campaign.3/
Moreover, there is no evidence whatsoever to indicate whether the Respondent attempted to ascertain measures taken by AFGE to contact the employees off the base other than AFGE's unsuccessful attempt to obtain the home telephone numbers and addresses of the employees. For example, the Respondent did not inquire as to whether AFGE had made any effort to reach the employees through the media or by distributing leaflets on or near public transportation or in popular gathering spots, such as malls where employees are known to congregate. In the absence of such information regarding AFGE's organizational efforts, the Respondent had no basis on which to grant access to a labor organization without equivalent status. In this regard, the Respondent appears to defend its decision to grant access to AFGE by stating only that it is unable to furnish the incumbent Union with the addresses of its employees, and, therefore, that it could not provide that information to any other union. As we have shown above, contact with employees at their homes is not the only way by which a rival union can attempt to communicate with employees away from the workplace. Whether the Respondent fulfills its obligations under the Statute with regard to the incumbent Union4/ should have no bearing on the rights of a rival union to organize on the Respondent's premises.
Finally, we conclude that it is not relevant to the disposition of this case that the Respondent assertedly did not know that AFGE had not filed a petition for an election when the Respondent permitted the AFGE organizer access to the base. An agency has a statutory obligation under section 7116(a)(3) to ensure that it does not provide unlawful assistance to a union without equivalent status. Therefore, before granting access to its employees and facilities to nonemployee organizers for a rival union, the agency is obligated to determine whether that union has achieved equivalent status and, if it has not, whether its failure to communicate with the employees was based on their inaccessibility. If an agency does not make such inquiries, it acts at its peril.
Accordingly, we conclude that the Respondent violated section 7116(a)(3) of the Statute by granting access to its premises to a nonemployee organizer for AFGE at a time when AFGE did not have equivalent status with the incumbent union and had not establi