54:1428(124)CA - - Bureau of Indian Affairs, Isleta Elementary School, Pueblo of Isleta, NM and Indian Educators Federation - - 1998 FLRAdec CA - - v54 p1428



[ v54 p1428 ]
54:1428(124)CA
The decision of the Authority follows:


54 FLRA No. 124

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

BUREAU OF INDIAN AFFAIRS

ISLETA ELEMENTARY SCHOOL

PUEBLO OF ISLETA, NEW MEXICO

(Respondent)

and

INDIAN EDUCATORS FEDERATION

(Charging Party)

DE-CA-50006

DE-CA-50324

DE-CA-50420

_____

DECISION AND ORDER

October 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

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 filed by the Respondent. The General Counsel and the Charging Party filed an opposition to the exceptions. The General Counsel filed a motion to strike certain portions of the Respondent's exceptions and the Respondent filed a response to the motion.

The consolidated complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute): (1) when on August 29, 1994, the Respondent effectively solicited and obtained from the Governor of the Pueblo of Isleta a ban against a non-employee representative of the Indian Educators Federation, Local 4524 (the Charging Party or the Union) from entering the Pueblo of Isleta and, thus, carrying on representational activities; (2) when on January 11, 1995, the Respondent subsequently enforced the ban against the Union representative, and (3) when on March 22, 1995, the Respondent enforced the ban against certain Union officers who were employees, to prevent them from meeting on its premises with the members of the bargaining unit. The Judge determined that the Respondent violated the Statute as alleged in the complaint.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, except as modified herein.

II. Background and Judge's Decision

A. Background

The facts are set forth in detail in the Judge's decision and are briefly summarized here. The Respondent operates schools for Native Americans, including the Isleta Elementary School (the School) that primarily serves children of the Pueblo of Isleta tribe (the Pueblo). The Isleta Elementary School is located on the Pueblo of Isleta reservation in New Mexico. The Federal Government operates in a government-to-government relationship with federally recognized Native American tribes, such as the Pueblo.

The Union, affiliated with the American Federation of Teachers (AFT), is the exclusive representative of a bargaining unit of professional employees in the Respondent's Navajo and Albuquerque Areas. The Union is also the exclusive representative of a bargaining unit of nonprofessional employees in the Respondent's Albuquerque Area. Both of these bargaining units include employees at the School.

At all times material to this case, Dr. Michael Schoenfeld was the principal (the Principal) of the School, acting on behalf of the Respondent. Dennis Ziemer was a full-time employee of the AFT assigned to the Union as a Field Representative.

During the summer of 1994, Ziemer participated in the Union's organizing drive which later resulted in the Union becoming the exclusive representative of the bargaining unit of the nonprofessional employees that includes employees at the School. On August 22,(1) Ziemer sent a letter to Respondent's principals. The letter stated that the Union had directed Ziemer to file a "mass grievance against every school or supervisor that failed [to assign employees] an adequate rest period." Judge's Decision at 4. The Union planned for Ziemer to meet on August 30 at the School, with the nonprofessional employees, to seek their signatures on Union authorization cards. In addition, the Union planned for him to meet with the bargaining unit of professional employees it already represented, to discuss with them the adequacy of rest breaks and the related pending grievances.

Before that meeting, on August 23, Ziemer met with the Principal. The Principal requested the meeting in an attempt to develop a more nonconfrontational relationship with Ziemer. In particular, the Principal desired to resolve his concerns about "feeling intimidated" by Ziemer's representational activities at a Union meeting over rest breaks which the Principal attended in the spring.(2) Id. In addition, the Principal desired "to try to resolve concerns about potential confrontations that he felt were developing." Id.

At the August 23 meeting, the Principal and Ziemer discussed the adequacy of rest breaks and mention was made of the future Union meeting scheduled at the School for August 30. Near the conclusion of the meeting, Ziemer gave the Principal a business card which he considered a "joke card[.]" Id. The business card contained a Native American symbol around its border and the statement, "I'm that son of a bitch from the Union!" It also contained the statement, "Union Yes," and a box with a check mark. Id. at 5.

Upon seeing the business card, the Principal maintained a "poker face," but "felt intimidated by the attitude that the card reflected[.]" Id. The Principal realized that the "meeting to develop a more nonconfrontational relationship" with Ziemer "had apparently been unsuccessful." Id.

Later in the week, the Principal was advised by his secretary that a former Union representative had been physically escorted off the Pueblo reservation, possibly as a result of formal tribal action. After receiving that information, the Principal decided to meet with the Governor of the Pueblo (the Governor) to inquire whether the Principal was unknowingly violating any past tribal actions by allowing a Union representative to visit the School.

1. The August 29 meeting between the Principal and the Governor

On August 29, the Principal met with the Governor.(3) The Principal inquired about a previous ban on the Union or Union representatives by the tribe.(4) He described his concerns that the Union had held a meeting without his knowledge and was harassing nonmembers when some of the staff didn't want anything to do with the Union. He gave the Governor the business card of Ziemer. He further gave the Governor the letter from Ziemer concerning the Union's threat of a mass grievance over the adequacy of rest breaks.

After the meeting with the Principal, the Governor faxed a letter to the Respondent's Superintendent of Education responsible for the School. Dated August 29, and addressed to the Principal, the letter provided as follows:

I have been informed that the [Union] Board has given instruction to a Dennis Ziemer to file a mass grievance against the schools.

My instruction to you, as principal of the Isleta Elementary School is that Dennis Ziemer not be allowed to step foot on the Isleta Pueblo reservation, unless he wants to be arrested for trespassing.

You will receive further instruction from me in the very near future as to how we will deal with this situation.

Id. at 7.

Based on this letter, on the morning of August 30, a labor relations specialist of the Respondent informed Ziemer that he was not allowed to hold a Union meeting at the School that day. As noted, the purpose of the meeting was for Ziemer to discuss with the non-union employees and with the teachers the Union already represented the issue of pending grievances over the adequacy of rest breaks. Ziemer arranged for the meeting to be held off of the reservation.

In September, Ziemer met with the Governor. At one point during the meeting, the Governor held in his hand Ziemer's August 22 letter concerning the possible mass grievance, and said, "This will not be tolerated." Id. at 8. At another point, holding in his hand Ziemer's business card, the Governor stated, "This kind of thing will not be tolerated." Id.

2. The January 11 Union meeting

On January 11, 1995, Ziemer held a Union meeting at the School that also was attended by the Principal. During the meeting, an employee entered, handed the Principal a letter from the Governor, and said that the police were on their way. Upon the request of the employees at the meeting, and with Ziemer's consent, the Principal proceeded to read to them the letter. The letter stated that the Tribal Council had upheld the decision of the Governor to banish Ziemer from the Pueblo reservation. The letter also stated that while the school staff was not being deprived of joining the Union, "all activities with regard to membership meetings will not be allowed at the School or Isleta Reservation." Id. at 11. After the Principal read the letter, a Pueblo reservation police officer arrived at the meeting. The police officer prevented Ziemer from continuing the meeting and escorted him off of the Pueblo reservation.

3. The March 22 Union meeting

On March 22, 1995, the president and a vice president of the Union, who were employees of the Respondent, arrived at the School shortly after 4:00 p.m. for a scheduled Union meeting with other bargaining unit employees. The Pueblo reservation police met the Union officers outside the school building and handed the president a letter from the Governor which referred to the August 29 letter banning Ziemer. The police prevented the Union officers from meeting with members of the bargaining unit at the School and escorted them off of the Pueblo reservation.

The Union has not been able to hold any additional meetings with unit employees at the School. Ziemer has not been able to go to the School since his January 11, 1995, attempt to hold a meeting with unit employees.

B. The Judge's Decision

The Judge concluded that the Respondent violated section 7116(a)(1) of the Statute: (1) when on August 29 the Respondent effectively solicited and obtained from the Governor a ban against a non-employee representative of the Union from entering the Pueblo reservation and, thus, carrying on representational activities; (2) when on January 11, 1995, the Respondent subsequently enforced the ban against the Union representative; and (3) when on March 22, 1995, the Respondent enforced the ban against certain Union officers who were employees, to prevent them from meeting on its premises with the members of the bargaining unit.

The Judge stated that section 7102 of the Statute provides employees a right to assist a union. The Judge further stated that this right precludes an agency from denying a union representative access to agency premises. The Judge cited U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 32 FLRA 252 (1988). The Judge found that the Union also had established a right of access to school locations for non-employee Union representatives under Article 6, Section 5 of the parties' Joint Negotiated Agreement (5) and by the past practice of allowing non-employee Union representatives access to the School. The Judge also stated that a union representative will lose the protection of the Statute for engaging in improprieties which constitute flagrant misconduct.

The Judge rejected the Respondent's contention that it could not be held responsible for the ban imposed by the Pueblo and had no power to lift it because the Pueblo as an Indian reservation is a sovereign entity. The Judge noted that in Department of Health and Human Services, Health Care Financing Administration, 24 FLRA 672, 676 (1986), petition for review denied sub nom. American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority, 840 F.2d 947 (D.C. Cir., 1988) (Health Care Financing Administration), the Authority held that an agency's influence on a third party's control of property, if any, is a relevant consideration in determining an agency's own liability for an unfair labor practice relating to the use of such property.

The Judge determined that the Principal's report to the Governor at the August 29 meeting "effectively solicited and influenced the Governor's action and was intended to have this result." Judge's Decision at 15. In this regard, the Judge found that, by his actions at that meeting with the Governor, the Principal suggested that the Governor ban Ziemer from the Pueblo and the School. The Judge further found that the Governor "received the intended message and took the desired action. . . ." Id.

The Judge reached this determination based on the totality of the circumstances, including the events involving the Principal and Ziemer and the August 29 meeting between the Principal and the Governor. The Judge found that during the period leading to the August 29 meeting, the Principal had been "bothered and upset" by Ziemer's representational activities. Id. The Judge further found that the Principal decided to meet with the Governor only after the Principal made the "fortuitous discovery" that the Union may have been banned from the Pueblo by a previous Tribal Council. Id.

The Judge added that when the Principal met with the Governor on August 29 to inquire whether the previous ban would apply to Ziemer, the Principal also informed the Governor of his problems with Ziemer. In this regard, the Judge found that the Principal "made the Governor aware" of Ziemer's business card, the threat of a mass grievance, as well as alleged unscheduled meetings with unit employees, and alleged harassment of nonmembers of the Union. Id.

Further, the Judge determined that the ban against Ziemer was not justified. The Judge found that Ziemer had not failed to comply with the contractual procedures for conducting official representational business at the School. The Judge further found that the business card did not constitute flagrant misconduct that was removed from the protection of the Statute. In support, the Judge cited Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7 (1995) (Grissom). The Judge added that, under the Statute, the Union had a right to file a mass grievance. The Judge also found no support in the record for the Principal's allegations to the Governor regarding unscheduled union meetings and harassment of nonmembers of the Union.

Furthermore, the Judge concluded that the Principal's solicitation of, and compliance with, the ban against Ziemer directly resulted in preventing that Union representative and certain Union officers from meeting with the bargaining unit on January 11, 1995, and on March 22, 1995, respectively.

As a remedy, among other things, the Judge recommended that the Respondent, through the Principal, request that the Pueblo rescind the ban against Ziemer and Union officers. The Judge also recommended that, until the Pueblo rescinds the ban, the Respondent will be required to transport bargaining unit employees, at their request and with official time for travel, to a location off of the Pueblo during non-work time to meet periodically with Ziemer.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent states that, as a non-employee Union representative, Ziemer was afforded access to its premises to conduct Union activities "only through the negotiated agreement, and not as a matter of right[.]" Exceptions at 18 (emphasis in the original). The Respondent contends that the Judge erred in concluding that the Principal effectively solicited the Governor to ban Ziemer. The Respondent argues that the Principal did not make a specific request to the Governor to ban Ziemer and that the Governor decided to do so on his own.

Respondent further argues that the Judge's conclusion that the Principal "effectively solicited" the Governor to ban Ziemer is inconsistent with the Judge's factual finding that the Principal did not make a specific request. The Respondent adds that in several decisions, the Authority has found that the term "solicitation" contained in section 7131(b) of the Statute, refers to an "overt request" and that interpretation "is binding in this case." (6) Exceptions at 13, 15. The Respondent asserts that the Principal's conduct at the meeting with the Governor did not constitute an "overt plea" to the Governor to ban Ziemer.

The Respondent states that the Pueblo is sovereign and has the authority to ban anyone from its premises. The Respondent further asserts that it has no control over, or influence on, the Pueblo. In this regard, the Respondent argues that the Judge incorrectly applied Health Care Financing Administration. The Respondent states that in Health Care Financing Administration, the Authority found that the agency charged with the violation did not have control over the disputed space and dismissed the complaint. The Respondent asserts that, like the agency in that case, it does not control the reservation occupied by the Pueblo.

Furthermore, the Respondent asserts that the Principal's action at the August 29th meeting and the subsequent enforcement of the ban was based on the Statute. The Respondent argues that Ziemer and certain Union officers lost their right to access to the Respondent's premises, under the collective bargaining agreement, because the business card constitutes flagrant misconduct under Authority precedent.

The Respondent maintains that the Judge did not apply the factors set forth in Grissom to be considered in determining whether the business card constitutes flagrant misconduct. The Respondent asserts that when the factors in Grissom are applied to this case, the business card was a "deliberate attempt to offend the Tribe" and constitutes flagrant misconduct that was removed from the protection of the Statute. Exceptions at 21.

The Respondent maintains that there is "no basic distinction" between the content of the business card and the derogatory racial comments used to refer to a management official found to be removed from the protection of the Statute in Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 26 FLRA 114 (1987) (Veterans Administration), aff'd sub nom., American Federation of Government Employees, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989). Exceptions at 21.

B. General Counsel's Opposition

The General Counsel contends that the Judge correctly determined that the Respondent, through the Principal, effectively solicited the Governor to ban Ziemer from the Pueblo and the School. The General Counsel argues that the Judge appropriately considered the totality of the circumstances to make that determination.

Further, the General Counsel contends that the Judge correctly determined that Ziemer did not engage in flagrant misconduct when he gave his business card to the Principal. The General Counsel asserts that the alleged offensive language on the business card was directed at Ziemer himself, and not at the Principal or the Governor. The General Counsel also asserts that Ziemer thought that the Principal would find the business card amusing. The General Counsel points out that there is no evidence that Ziemer knew that the Native American symbol was of a religious nature or that combining the symbol with language commonly used by union representatives would have any special significance. The General Counsel adds that it was the Principal, and not Ziemer, who gave the Governor the business card. The General Counsel further asserts that the Governor's letter issuing the ban did not refer to the business card, but referred to the Union's threat of a mass grievance.

C. Charging Party's Opposition

The Charging Party's opposition states only that the Judge's decision is correct.

IV. Analysis and Conclusions

A. Preliminary Matter

The General Counsel moves to strike footnote 3 on page 5 of Respondent's exceptions. Footnote 3 states that Ziemer is no longer assigned to work with Bureau of Indian Affairs schools. The General Counsel contends that the issue before the Authority is not about a particular Union representative. The General Counsel argues that the footnote is irrelevant, implies mootness, and attempts to inject a new fact not in evidence. The Respondent contends that the footnote states a fact.

The footnote presents a new fact regarding the current status of Ziemer. We agree that the current status of Ziemer is not relevant to whether the Respondent committed a violation of the Statute, as alleged. Consequently, in reaching our decision in this case, we have not considered the footnote. Therefore, we find it unnecessary to rule on the General Counsel's motion to strike. See, e.g., American Federation of Government Employees, Local 1857, 44 FLRA 959, 969 n.5 (1992).

B. The Respondent, Through its Principal, Denied the Union's Representative Access to the Respondent's Premises to Conduct Representational Activities

1. The Union Has a Statutory Right to Designate its Representatives

The complaint concerns the Respondent's conduct in the solicitation of, and compliance with, a ban against a non-employee representative of the Union from entering the Respondent's premises, and the enforcement of that ban against employee representatives of the Union. The Judge found, and the Respondent claims, that the non-employee representative in particular may access the Respondent's premises to conduct representational activities solely under the parties' collective bargaining agreement and past practice. We disagree. Consistent with Authority precedent, the Statute provides such access for a union's designated representative, including one who is a non-employee.

Section 7102 of the Statute provides "Each employee shall have the right to form, join or assist any labor organization . .. ." This right encompasses a union's right to designate its representatives, including a non-employee who will have access to an agency's premises to conduct representational activities.(7) See Philadelphia Naval Shipyard, 4 FLRA 255, 266-268 (1980) (Shipyard); Internal Revenue Service, 39 FLRA 1568, 1574 (1991) (IRS I), vacated as to other matters, 963 F. 2d 429 (D. C. Cir. 1992), remand, Internal Revenue Service, 47 FLRA 1091 (1993) (IRS II)(a union's right to designate its own representatives is a statutory right under section 7114); American Federation of Government Employees, Local 1738, AFL-CIO, 29 FLRA 178, 188 (1987) (agencies and unions have the right to designate their respective representatives when fulfilling their responsibilities under the Statute). An agency's interference with this right violates section 7116(a)(1) of the Statute. See Shipyard, 4 FLRA at 266.

2. The Principal Caused the Pueblo to Ban the Union's Representative

We conclude that the General Counsel has established by a preponderance of the evidence that the Principal, by his conduct, caused the Governor to deny Ziemer, the Union's designated representative, access to the Respondent's premises to conduct representational activities.

We find no merit to the Respondent's argument that the Principal did not make a specific request to the Governor to ban Ziemer and that the Governor decided on his own to do so. The Judge properly determined that the Principal's report to the Governor at the August 29th meeting "effectively solicited and influenced the Governor's action and was intended to have this result." Judge's Decision at 15. The record reveals that when the Principal met with the Governor on August 29 to inquire whether a previous ban against a Union representative would apply to Ziemer, the Principal also informed the Governor of his problems with Ziemer and gave him the Union representative's business card. We agree with the Judge, that, by presenting his report in conjunction with that inquiry, the Principal suggested that the Governor ban Ziemer from the Pueblo and the School and that the Governor "received the intended message and took the desired action." Id. at 15. Moreover, in our view, the report by the Principal at the August 29 meeting was the proximate cause of the banning of Ziemer. Indeed, the Governor testified in his deposition that, in the absence of the information provided by the Principal at the meeting, the Governor would not have issued the ban against Ziemer. See J. Ex. 3 at 24.

We reject the Respondent's argument that the Judge's conclusion that the Principal "effectively solicited" the Governor to ban Ziemer is inconsistent with the Judge's factual finding that the Principal did not make a specific request. The two findings are not inconsistent because an effective solicitation need not be specific or express. The complaint is not limited to specific or express requests or statements made by the Principal at the August 29th meeting. Rather, it concerns his conduct generally at that meeting. See General Counsel Exhibit 1(d) at 2. We also find no merit to the Respondent's reliance on several decisions interpreting the term "solicitation" contained in section 7131(b) of the Statute as referring to an "overt request." First, the definition of "solicitation" in the context of membership development and official time is not relevant to this case. Second, the totality of the circumstances of the meeting between the Principal and the Governor leads to the conclusion that the Principal intended to solicit the banning of Ziemer.

The Authority's decision in Health Care Financing Administration, concerning the effect of a tenant's control over property, was correctly applied by the Judge. In that case, the Authority addressed an agency's obligations under the Statute when a rival union lacking equivalent status sought to solicit the signatures of employees at the agency in support of a representation petition on public areas adjacent to the agency's premises, owned by the General Services Administration (GSA). The factual basis of Health Care Financing Administration is different from that which is present here, but the portion of that case on which the Judge relied is applicable. The Authority stated in that case that the degree to which the agency controlled or influenced GSA's decision regarding access is a relevant consideration in determining the agency's own liability for an unfair labor practice relating to the use of such property. See 24 FLRA at 676. Here, the Judge found that the Respondent, through the Principal, influenced the Pueblo to ban Ziemer. Accordingly, in the absence of the Respondent establishing a legitimate justification for the ban, such as flagrant misconduct, a finding by the Authority that the Respondent violated 7116(a)(1) will be warranted.

C. The Business Card Did Not Constitute Flagrant Misconduct

The Respondent argues, as an affirmative defense, that Ziemer and certain Union officers lost their right to access its premises because the business card constitutes flagrant misconduct under Authority precedent. See Exceptions at 18. A union representative has the right to use "'intemperate, abusive, or insulting language without fear of restraint or penalty'" if he or she believes such rhetoric to be an effective means to make the union's point. Department of the Navy, Naval Facilities Engineering Command, Western Division San Bruno, California, 45 FLRA 138, 155 (1992) (Member Armendariz concurring in part and dissenting in part) (Naval Facilities Engineering Command) (quoting Old Dominion Branch No. 46, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 283 (1984)). This right also applies to non-employee Union representatives. See Shipyard, 4 FLRA at 266-67.

Remarks or conduct that are of such "an outrageous and insubordinate nature" as to remove them from the protection of the Statute constitute flagrant misconduct. Naval Facilities Engineering Command, 45 FLRA at 156; U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 34 FLRA 385, 390 (1990). Consistent with section 7102, an agency has the right to deny access to its premises to a non-employee Union representative who is engaged in otherwise protected activity for remarks or actions that constitute flagrant misconduct. See Shipyard, 4 FLRA at 266-67, 267 n.8.

In Grissom, 51 FLRA at 11-12 (citations omitted), the Authority stated the following regarding the test for determining whether activities constitute flagrant misconduct:

In determining whether an employee has engaged in flagrant misconduct, the Authority balances the employee's right to engage in protected activity, which 'permits leeway for impulsive behavior, . . . against the employer's right to maintain order and respect for its supervisory staff on the jobsite.' Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 80 (1985) (Defense Mapping Agency)(quoting Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54, 55 (1979)(Puget Sound). Relevant factors in striking this balance include: (1) the place and subject matter of the discussion; (2) whether the employee's outburst was impulsive or designed; (3) whether the outburst was in any way provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct. . . . However, the foregoing factors need not be cited or applied in any particular way in determining whether an action constitutes flagrant misconduct. . . .

We conclude that the Respondent has not established by a preponderance of the evidence, as an affirmative defense, that the business card constituted flagrant misconduct. As noted above, the business card contained a Native American religious symbol around its border and the statement, "I'm that son of a bitch from the Union!" It also contained the statement, "Union Yes," and a box with a check mark. Judge's Decision at 5. The Judge found that the business card did not constitute flagrant misconduct, but made no express findings on any of the factors identified in Grissom. As noted, those factors need not be cited or applied in any particular way in determining whether an action constitutes flagrant misconduct. See Grissom, 51 FLRA at 11-12. Nevertheless, the record is sufficient to make a determination, under those factors, on whether the business card of Ziemer constitutes flagrant misconduct.

The Respondent argues that, under the Grissom factors, the Native American religious symbol with intemperate language in the business card was a "deliberate attempt to offend the Tribe[.]" Exceptions at 21. We disagree. By its plain terms, the "intemperate language" on the business card was directed at Ziemer himself, and not the Principal, nor the Pueblo. Further, it was the Principal, and not Ziemer, who gave the Governor the business card.

In Veterans Administration, relied on by the Respondent, the Authority found that a union president's newsletter article disparaging a manager by using racial epithets and racial stereotyping was removed from the protection of the Statute. Unlike the newsletter article in Veterans Administration, the business card, for example, is not replete with disparaging racial stereotyping and defamatory racial insults. Also, the "entire thrust of the newsletter" in Veterans Administration was criticism of one manager through racial epithets and stereotyping. 26 FLRA at 117. The thrust of the content of the business card, on the other hand, is for Ziemer to communicate that he is a representative of the Union. As the General Counsel points out, there is no evidence that Ziemer knew that the Native American symbol was of a religious nature or that combining the symbol with language commonly used by union representatives would have any special significance. See Opposition at 9 n.6

We find that, read as a whole and in the context of the circumstances of this case, Ziemer's use of the Native American religious symbol and intemperate language did not constitute flagrant misconduct and remove the business card from the protection of the Statute. Thus, we find no merit in the Respondent's reliance on Authority precedent to argue that Ziemer and certain Union officers lost their right to access the Respondent's premises because the business card constitutes flagrant misconduct.

Accordingly, we conclude that the Judge correctly determined that the non-employee Union representative's business card did not constitute flagrant misconduct, under the factors set forth in Grissom. Therefore, we conclude that, by effectively soliciting and enforcing a ban against the non-employee Union representative and extending it against certain Union officers, the Respondent violated section 7116(a)(1).

IV. Order

Pursuant to Section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Bureau of Indian Affairs, Isleta Elementary School shall:

1. Cease and desist from:

(a). Soliciting the Pueblo of Isleta, the Governor of the Pueblo of Isleta, or the Tribal Council of the Pueblo of Isleta to ban non-employee and employee representatives of the Indian Educators Federation (the Union) from the Pueblo of Isleta and Isleta Elementary School and enforcing any such ban by the Tribal Government of the Pueblo of Isleta that prevents Union representatives from engaging in representational activity at the Isleta Elementary School.

(b). In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured to them by the Statute.

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

(a). Through the Principal of the Isleta Elementary School, request in writing and orally that the Pueblo of Isleta, including the Governor of the Pueblo of Isleta and the Tribal Council of the Pueblo of Isleta, rescind the ban of representatives of the Union, including Field Representative Dennis Ziemer, President Patrick Baxtrom, and Vice-President Marie Baca, and on Union meetings from the Pueblo of Isleta and Isleta Elementary School. The request shall specifically inform officials of the Pueblo of Isleta that these Union representatives were engaged in lawful and protected representational activities at the School pursuant to the Statute and that any suggestion to the contrary by the Principal to officials of the Pueblo of Isleta is regretted. If the subject of the ban is, to Respondent's knowledge, thereafter made a part of a Tribal Council agenda, Respondent shall endeavor to reiterate its position, as set forth herein, to the Council, and shall notify the Union and the Denver Region of the Federal Labor Relations Authority prior to any such impending Tribal Council meeting or other consideration.

(b). Unless and until the Pueblo of Isleta rescinds the ban of Field Representative Dennis Ziemer, President Patrick Baxtrom, Vice-President Marie Baca, and on Union meetings at the school, transport bargaining unit employees, at their request and with official time for the transportation, to a location off of the Pueblo of Isleta during non-work time to meet periodically with the Union representative, furnishing such services and facilities as are necessary to enable bargaining unit employees to meet with their representatives.

(c). Make any other necessary arrangements for non-employee and employee Union representatives to represent bargaining unit employees consistent with the Statute to the same extent that Union representatives represented bargaining unit employees prior to August 29, 1994.

(d). Post at the Bureau of Indian Affairs, Isleta Elementary School, Pueblo of Isleta, New Mexico copies of the attached Notice to All Employees on forms furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Principal, Isleta Elementary School, and they shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the these Notices are not altered, defaced, or covered.

(e). Pursuant to Section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suit 100, Denver, Colorado 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Bureau of Indian Affairs, Isleta Elementary School, Pueblo of Isleta, New Mexico has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE WILL NOT seek to have the Pueblo of Isleta, the Governor of the Pueblo of Isleta, or the Tribal Council of the Pueblo of Isleta ban non-employee and employee representatives of the Indian Educators Federation (the Union) and Union meetings from the Pueblo of Isleta and Isleta Elementary School.

WE WILL, through the Principal of the Isleta Elementary School, request in writing and orally that the Pueblo of Isleta, including the Governor of the Pueblo of Isleta and the Tribal Council of the Pueblo of Isleta, rescind the ban of non-employee and employee representatives of the Union, including Field Representative Dennis Ziemer, President Patrick Baxtrom, Vice-President Marie Baca, and on Union meetings from the Pueblo of Isleta and Isleta Elementary School. We shall specifically inform these officials of the Pueblo of Isleta that these Union representatives were engaged in lawful and protected representational activities at the School pursuant to the Federal Service Labor-Management Relations Statute and that any suggestion to the contrary to officials of the Pueblo of Isleta by the Principal of Isleta Elementary School is regretted. If the subject of the ban is, to our knowledge, thereafter made a part of a Tribal Council agenda, we shall endeavor to reiterate our position, as set forth herein, to the Council, and shall notify the Union and the Denver Region of the Federal Labor Relations Authority prior to any such impending Tribal Council meeting or other consideration.

WE WILL, unless and until the Pueblo of Isleta rescinds the ban of Field Representative Dennis Ziemer, President Patrick Baxtrom, Vice-President Marie Baca, and on Union meetings, transport bargaining unit employees, at their request and with official time for the transportation, to a location off the Pueblo of Isleta during non-work time to meet periodically with Union representatives, furnishing such services and facilities as are necessary to enable bargaining unit employees to meet with their representatives.

WE WILL make any other necessary arrangements to enable non-employee and employee Union representatives to represent bargaining unit employees consistent with the Federal Service Labor-Management Relations Statute to the same extent that Union representatives represented bargaining unit employees prior to August 29,1994.

WE WILL NOT interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

__________________________

(Activity)

Date: __________ 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 provision, they may communicate directly with the Regional Director, Denver Region, 1244 Speer Boulevard, Suit 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844-5224.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

BUREAU OF INDIAN AFFAIRS

ISLETA ELEMENTARY SCHOOL, PUEBLO OF ISLETA, NEW MEXICO

Respondent

and

INDIAN EDUCATORS FEDERATION

Charging Party

Case Nos. DE-CA-50006

DE-CA-50324

DE-CA-50420

Arthur Arguedas

Counsel for the Respondent

Patrick Baxtrom

Representative of the Charging Party

Steven B. Thoren

Matthew Jarvinen

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent(1) violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1), when the Respondent, on or about August 29, 1994, effectively solicited and obtained from the Governor of the Pueblo of Isleta a ban against Union Representative Dennis Ziemer entering the Pueblo of Isleta and, thus, carrying on representational activities (Case No. DE-CA-50006); and subsequently enforced the ban against Ziemer on or about January 11, 1995 (Case No. DE-CA-50324); and enforced the ban against members of the bargaining unit on or about March 22, 1995 (Case No. DE-CA-50420).

By Answer dated August 10, 1995, the BIA denied the violations of law alleged in the Complaint. The BIA asserted, among other things, that it was not responsible for the actions of a sovereign Indian Pueblo, the Pueblo of Isleta, and had no power to lift any such ban that might exist as a result of actions by the Pueblo. BIA contends that Mr. Ziemer got himself banned from the Pueblo by repeated obnoxious, intentional, and confrontational behavior that offended an ancient culture.

For the reasons set out below, a preponderance of the evidence establishes the alleged unfair labor practices.

A hearing was held in Albuquerque, New Mexico. The BIA and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs.(2) Based on the entire record(3), including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The BIA is an agency under section 7103(a)(4) of the Statute. It provides comprehensive education programs and services for Indian and Alaska natives.

The Indian Educators Federation (IEF), Local 4524, affiliated with the American Federation of Teachers (AFT) and the AFL-CIO, is the exclusive representative of a bargaining unit of professional employees in the Navajo and Albuquerque Areas of the BIA, and a bargaining unit of nonprofessional employees in the Albuquerque Area of the BIA. IEF has represented the professional bargaining unit since the early 1970's and the nonprofessional bargaining unit since February 1995.

Both of these bargaining units include employees at the Isleta Elementary School, a BIA-operated school, located on the Indian reservation, the Pueblo of Isleta, in New Mexico. The Isleta Elementary School primarily serves children of the Pueblo of Isleta tribe. At all relevant times, Michael Schoenfeld was the principal of Isleta Elementary School, acting on behalf of the BIA.

The Pueblo of Isleta reservation covers about 211,000 acres with a population of approximately 4500. It is generally open to the public, but is sometimes closed to the public for religious purposes. The Federal Government operates within a government-to-government relationship with federally recognized Native American tribes, such as the Pueblo of Isleta.

Dennis Ziemer was a full-time employee of the American Federation of Teachers assigned to the IEF as a Field Representative. The relationship between Dennis Ziemer and several of the school principals in the BIA, including Dr. Schoenfeld, was strained due to comments Mr. Ziemer had made in his newsletter and due to his Union tactics, which were viewed as more aggressive than those of other union officials with whom local BIA management had dealt. Dr. Benjamin Atencio, the Superintendent of Education for the BIA's Southern Pueblo Agency, which includes the Isleta Elementary School, had filed a number of grievances against Mr. Ziemer.

In the Summer of 1994, the Union had two significant issues before it. The first issue was an organizing drive to organize a nonprofessional bargaining unit in the BIA Albuquerque Area, including the Isleta Elementary School. The organizing campaign was to include Mr. Ziemer meeting with the nonprofessional employees at the Isleta school on August 30, 1994 to advise them about the Union and seek to have them sign Union authorization cards. The other significant issue involved an alleged failure at several schools to assign employees adequate breaks. At the direction of the IEF Executive Board, Mr. Ziemer sent a letter on about August 22, 1994 to all IEF Executive Board Officers and Stewards, as well as BIA principals, including Dr. Schoenfeld, concerning the breaks issue, explaining that the Executive Board had instructed him "to file a mass grievance against every school or supervisor that failed to provide an adequate rest period."

On August 23, 1994, Mr. Ziemer met with Dr. Schoenfeld. Dr. Schoenfeld had requested the meeting to resolve his concerns about feeling intimidated by Mr. Ziemer at a Union meeting at the school the previous Spring over the breaks issue and to try to resolve concerns about potential confrontations that he felt were developing. Dr. Schoenfeld felt that Mr. Ziemer had backed him into a corner at the Spring meeting by trying to get him to make a decision about breaks in front of the staff. Also, after the Spring meeting, Dr. Schoenfeld was taken off of the Union's list of the top ten administrators and placed on the Union's "most wanted" list.

At the August 23, 1994, meeting, Dr. Schoenfeld and Mr. Ziemer discussed the previous meeting, the breaks issue, and mention was made of the Union meeting scheduled at the Isleta school for the next week. Near the conclusion of the meeting, Mr. Ziemer gave Dr. Schoenfeld what he considered a "joke card," as follows, which he had received as a gift from one of the Union members:

 
Image of "joke card" not available
 

Mr. Ziemer thought that the business card was amusing and that Dr. Schoenfeld would also find it amusing.

Dr. Schoenfeld maintained a "poker-face," but was not amused. He felt intimidated by the attitude that the card reflected, realizing that Mr. Ziemer would be coming to the school again soon and that his meeting to develop a more non-confrontational relationship with the Union representative had apparently been unsuccessful.

After the meeting, Dr. Schoenfeld furnished a copy of the business card to Richard Garcia, BIA labor relations specialist for the Albuquerque area, who sent it to the BIA central office in Washington, D.C.

Later in the week, Dr. Schoenfeld was advised that a former Union representative had been physically escorted off the reservation, possibly as a result of formal Tribal action. Dr. Schoenfeld decided to meet with the Governor of the Pueblo of Isleta to determine whether he was unknowingly violating any past Tribal actions by allowing a Union representative to visit the school.

The Pueblo takes the position that as a sovereign it can ban anyone from entering the reservation. However, Article 6, Union Rights & Responsibilities, of the applicable collective bargaining agreement provides:

Section 5. Designated Union Representatives not employed by the local school who are on official representational business may visit school locations with advance notice. The Union Representative will check in with the Principal and state the purpose of the visit. Normally, this does not include meeting with members of the student body.

On August 29, 1994, Dr. Schoenfeld met with Alvino Lucero, Governor of the Isleta Pueblo.(4) The relationship between the BIA and the Isleta Pueblo is an ongoing, close relationship. Dr. Schoenfeld meets with Governor Lucero about once a month or when necessary to inform him about activities and conditions at the school. The Governor expects to be notified of any significant issues involving the school.

Dr. Schoenfeld asked about a previous ban on the Union or Union representatives by the Tribe.(5) Dr. Schoenfeld also described his concerns that the Union had held a meeting without his knowledge and may be harassing non-members when some of the staff didn't want anything to do with the Union.(6) Later, Dr. Schoenfeld gave the Governor the novelty business card of Mr. Ziemer and also provided the Governor with the August 22, 1994 letter from Mr. Ziemer concerning the Union's threat of a mass grievance. There is no evidence that Dr. Schoenfeld asked Governor Lucero to take any specific action, and both denied that any such request was made.

After receiving this information from Dr. Schoenfeld, Governor Lucero faxed a letter to Dr. Atencio, BIA Superintendent of Education, Southern Pueblo Agency, for Dr. Schoenfeld. The letter, dated August 29, 1994 and addressed to Dr. Schoenfeld, provided as follows:

I have been informed that the IEF Executive Board has given instruction to a Dennis Ziemer to file a mass grievance against the schools.

My instruction to you, as principal of the Isleta Elementary School is that Dennis Ziemer not be allowed to step foot on the Isleta Pueblo reservation, unless he wants to be arrested for trespassing.

You will receive further instruction from me in the very near future as to how we will deal with this situation.

Mr. Ziemer had previously arranged for the meeting at the Isleta school on August 30, 1994 through the Steward at the school, Carmen King, who had notified Dr. Schoenfeld. As noted, the purpose of the meeting was to meet with the nonprofessional employees the Union was attempting to organize and with the teachers the Union already represented, to discuss with them the breaks issue and pending grievances.

The morning of August 30, 1994, Mr. Ziemer received a telephone call from Richard Garcia, BIA labor relations specialist, who told Mr. Ziemer that he was not allowed to go to the school based on a letter that Dr. Atencio had received from Governor Lucero.

Mr. Ziemer did not hold the meeting with unit employees at the Isleta school scheduled for August 30. Instead, he and Steward King arranged for the meeting to be held off of the reservation.

At Mr. Garcia's suggestion, Mr. Ziemer met with Governor Lucero in his office on September 2, 1994. Mr. Ziemer was not warmly received. The Governor held up Mr. Ziemer's August 22, 1994 letter concerning the possible mass grievance and said, "This will not be tolerated." He also held up Mr. Ziemer's novelty card and stated, "This kind of thing will not be tolerated."(7) Mr. Ziemer's effort to explain his position was interrupted by the Governor who said Ziemer should meet with the school board to resolve the matter. Mr. Ziemer then went to Dr. Schoenfeld's office and asked to be placed on the school board's agenda.

The Union attempted to hold another meeting with unit employees at the Isleta school later in September, 1994. The Union membership at the school had requested a meeting, so Mr. Ziemer asked Ms. King to check with Dr. Schoenfeld to see whether he could meet with the professionals at the school on September 29, 1994.

By memorandum of September 29, 1994, Dr. Atencio advised Dr. Schoenfeld as follows concerning the requested meeting:

Upon your communication with me on September 26, 1994, regarding discussion/flyer from the school IEF Steward on a union presentation on orientation from Mr. Ziemer, I called the Governor of the Pueblo of Isleta to see if the August 29, 1994 letter was still in effect. The letter provided instructions that Dennis Ziemer not be allowed to step foot on the Isleta Pueblo reservation, unless be wants to be arrested for trespassing.

I discussed this matter with Governor Lucero on September 29, 1994. He stated that the letter was still in effect.

Secondly, I asked him about the meeting he had with Dennis Ziemer and that he asked [for] a meeting with the Isleta Elementary School Board of Education. He stated that Mr. Ziemer was also not to meet with the School Board.

Apparently, the Tribal Council had met on matters related to the IEF field representatives or union matters before. The Governor wanted to look into the matter further.

You are instructed to comply with Governor's Lucaro's instructions until this office is notified otherwise. Please inform the school IEF Steward that Mr. Ziemer can not enter tribal land thus, can not enter school grounds. Secondly, inform the School Board and advise them that Mr. Ziemer is not to meet with them.

Dr. Schoenfeld advised Steward King that the request for a meeting was disapproved, and Mr. Ziemer would be arrested if he entered the school grounds. As a result, the meeting was again held off of the reservation.

On December 20, 1994, Mr. Ziemer met with Governor Lucero, Superintendent Atencio, IEF President Patrick Baxtrom and others concerning the ban. Governor Lucero stated that he would discuss the status of the ban with the Tribal Council, but the accepted protocol was for outsiders to notify or check in with the Governor's office whenever they were attending a meeting or coming on to the Pueblo. Mr. Ziemer agreed to give them such notice.(8) (Tr. 48-49; 143-145).

On January 4, 1995, Steward King notified Dr. Schoenfeld, at Mr. Ziemer's request, that the Union wanted to hold a meeting at the school at 4 p.m. on January 11, 1995.(9) At about the same time, Mr. Ziemer gave the Governor's office notice of his intention to hold the January 11 meeting at the school by leaving a detailed message about the meeting with the Governor's secretary.

On January 11, 1995, Mr. Ziemer arrived at the Isleta school a few minutes before 4:00 p.m. In accordance with the parties' collective bargaining agreement, Mr. Ziemer went by the administrator's office to check in when he arrived at the school. Mr. Ziemer did not find anyone in the office, but found a staff meeting being conducted by Dr. Schoenfeld in the school library. The staff meeting ended a minute or two later, and Mr. Ziemer invited Dr. Schoenfeld to stay for the Union meeting, which he did.

The meeting got underway with comments by Mr. Ziemer and questions from the employees. Shortly thereafter, an employee entered, handed Dr. Schoenfeld a letter, and said that the police were on their way. The employees asked Dr. Schoenfeld to read the letter to them, and Mr. Ziemer told him to go ahead.

Dr. Schoenfeld proceeded to read the letter, addressed to Dr. Schoenfeld from Governor Lucero. The letter, dated January 11, 1995, referred to alleged unannounced visits to the school by Mr. Ziemer that had caused disruption within the school staff. The letter announced that the Tribal Council had upheld the decision of the Governor to banish Mr. Ziemer from the Isleta Reservation. The letter concluded that while school staff were not being deprived of joining the Union, "all activities with regard to membership meetings will not be allowed at the Isleta Elementary School or Isleta Reservation."

Shortly thereafter, an Isleta Pueblo Tribal Police officer arrived. Mr. Ziemer was prevented from continuing the Union meeting and was escorted off of the Isleta Pueblo by the police. Dr. Schoenfeld advised Mr. Ziemer that this was not his doing, but that he was acting according to the instructions of the BIA to follow the Tribe's orders.

The next day, January 12, 1995, Governor Lucero sent a letter to Patrick Baxtrom, the President of the IEF. In this letter, the Governor protested the actions of Mr. Ziemer at the school the previous day. He also informed Mr. Baxtrom that the Tribal Council, on January 10, 1995, supported the directive to deny Mr. Ziemer access to the Pueblo. The Governor claimed that Mr. Ziemer had failed to follow proper protocol and also that Mr. Ziemer had been advised on December 20, 1994 that all visits were to be suspended until the issues were resolved. The Governor also sent this letter to Dr. Atencio by facsimile.

The Union attempted to hold another meeting with unit employees at the school in March, 1995. Based on Governor Lucero's January 12, 1995 letter, Mr. Baxtrom, IEF President and an employee of the BIA, concluded that the ban applied only to Mr. Ziemer and that another Union representative could meet with members and the new nonprofessional unit employees at the school without problems. Mr. Baxtrom instructed Mr. Ziemer to set up a meeting for Mr. Baxtrom at the Isleta school.

At Mr. Ziemer's request, Ms. King informed unit employees and Dr. Schoenfeld that a meeting would be held at 4:00 p.m. on March 22, 1995 at the school, that Mr. Baxtrom and Marie Baca, a Union Vice-President, would be attending, but that Mr. Ziemer would not be at the meeting.

Mr. Ziemer telephoned the Governor's office to provide notice of the meeting. He also informed the Lieutenant Governor that he would not be attending the meeting.

Mr. Baxtrom and Ms. Baca arrived shortly after 4:00 p.m. for their scheduled meeting at the Isleta school with unit employees on March 22, 1995. Mr. Baxtrom had driven some 290 miles for the meeting. They were met outside of the school by some bargaining unit employees and informed that the tribal police were inside the school and they probably weren't going to allow the meeting. As Mr. Baxtrom approached the building, he was met by two Tribal police officers, who asked if he was there to conduct a Union meeting. When he responded affirmatively, the police told him that Dennis Ziemer was banned. Mr. Baxtrom then identified himself, and the police asked him to wait while they checked further. When the police returned a few minutes later, they showed Mr. Baxtrom a typed letter addressed to Mr. Ziemer, with Mr. Baxtrom's name hand-written in next to Mr. Ziemer's name.

The letter, from Governor Lucero, dated March 20, 1995, acknowledged that the Tribe had notice that a meeting had been scheduled by the Union for March 22, 1995. The Governor referred to his August 29, 1994 letter to Dr. Schoenfeld banning Mr. Ziemer from entering the Isleta Pueblo reservation and the Tribal Council action in support of this action. The Governor concluded by stating:

Should you disregard this notice and/or make your presence known, Mr. Schoenfield (sic) has been directed to contact the Isleta Police Department and have you removed immediately. Further legal action may be taken against you, should you come onto the reservation.

According to the letter, copies were sent to Dr. Atencio, Dr. Schoenfeld, and the Isleta Police Department.

Mr. Baxtrom and Ms. Baca, members of the Union's bargaining unit, were prevented from meeting with members of the bargaining unit at the Isleta Elementary School and escorted off of the Isleta Pueblo by officers of the Isleta Pueblo Tribal Police.

Since he was unable to meet with employees at the school that day, other than those waiting outside the school when he arrived, Mr. Baxtrom scheduled a meeting with Governor Lucero, but the meeting was subsequently cancelled by the Governor. Mr. Baxtrom attempted to reschedule the meeting, but never heard back from the Governor.

As of the date of the hearing, the Union has not been able to hold any additional meetings with unit employees at the Isleta school. Mr. Ziemer has not been able to go to the school since his January 11, 1995 attempt to hold a meeting with unit employees. He believed that, based on the actions of the BIA and the Tribe, the ban on him would be enforced if he attempted to return to the school. The only Union officer at the school, Carmen King, resigned as Union steward in June 1995.

Discussion and Conclusions

In U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma, 32 FLRA 252 (1988), the Authority stated, 32 FLRA at 253-54:

Section 7102 of the Statute provides, in part, that each employee shall have the right to assist any labor organization, freely and without fear of penalty or reprisal, and that each employee shall be protected in the exercise of that right. Thus, union activity engaged in by employees is protected from interference by agency employers. This right prevents an agency from denying a union representa-tive access to agency premises, unless that denial is warranted. See, for example, Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB, Colorado, 13 FLRA 310, 311 (1983); Philadelphia Naval Shipyard, 4 FLRA 255, 266 (1980). In order to lose the protection of the Statute, an employee must engage in improprieties which constitute flagrant misconduct or otherwise exceed the boundaries of protected activity. See, for example, United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985).

See also United States Department of Interior, Washington, D.C. and United States Department of Interior, Bureau of Indian Affairs, Washington, D.C. et al, Case Nos. 6-CA-80028, 6-CA-80064, 6-CA-80123, 6-CA-90122, 6-CA-90275, 6-CA-90266 at 30-31 (March 19, 1990), ALJ Decision Reports, No. 89 (May 17, 1990) (BIA, Washington, D.C. violated section 7116 (a)(1) and (5) by interfering in the bargaining relationship between the Union and BIA area offices by directing its local activities to refuse to recognize and allow nonemployee Union representa-tives access to unit employees at BIA schools in the Albuquerque and Gallup areas.)

Access to agency facilities for union designated representatives and personnel directly affects a union's ability to carry out its representational responsibilities and therefore is inextricably tied to the conditions of employment of unit employees. American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622, 625 (1987). In the present case, the Union had established a right of access to school locations for nonemployee Union representatives through Article 6, Section 5 of the Joint Negotiated Agreement and by the past practice of allowing nonemployee Union representatives, including Mr. Ziemer, access to the Isleta Elementary School. There is no evidence that Mr. Ziemer failed to comply with the previously established and mutually agreed upon contractual procedures for conducting official representational business at the Isleta school. The Union also complied with the requirements of the Pueblo of Isleta as discussed at the December 20, 1994 meeting with the Governor.(10)

The record reflects that the ban was imposed by a third party, the Pueblo of Isleta. However, the Authority has held that an agency's extent of control of, or influence on, a third party's control of property, if any, is a relevant consideration in determining an agency's own liability for an unfair labor practice relating to the use of such property. Department of Health and Human Services, Health Care Financing Administration, 24 FLRA 672,676 (1986), petition for review denied sub nom. American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority, 840 F.2d 947 (D.C. Cir., 1988).

I agree with Counsel for the General Counsel that the Respondent violated section 7116 (a)(1) when Principal Schoenfeld, on or about August 29, 1994, interfered with the Union's right to access to the School by effectively soliciting the action that Governor Lucero took on August 29, 1994, to ban Union representative Ziemer from the Pueblo of Isleta and the Isleta Elementary School.

Although Mr. Schoenfeld did not make a direct request that Governor Lucero take such action, I conclude that his report to the Governor effectively solicited and influenced the Governor's action and was intended to have this result. The record reflects that the Principal and the Governor have an ongoing, close official relationship. The record reflects that Dr. Schoenfeld was bothered and upset with Mr. Ziemer's representational activities since at least the Spring of 1994. Dr. Schoenfeld became even more upset with Mr. Ziemer after the August 23, 1994 meeting. The business card further revealed Mr. Ziemer's aggressive attitude, and Dr. Schoenfeld believed that his efforts to develop a more non-confronta-tional relationship with the Union representative had been unsuccessful. He felt intimidated, realizing that Mr. Ziemer would be coming to the school again the following week to attempt to organize nonprofessional employees and to discuss the breaks issue with unit employees.

With all of this in mind, Dr. Schoenfeld made the fortuitous discovery that the Union may have been banned from the Pueblo by a previous Tribal Council and went to see Governor Lucero on August 29, 1994 to determine whether any such ban would apply to Mr. Ziemer. Dr. Schoenfeld also made the Governor aware of his problems with the Union representative -- the "offensive" business card, the threat of a mass grievance, alleged unscheduled meetings with unit employees, and alleged harassment of nonmembers.

Dr. Schoenfeld could not deny Mr. Ziemer access to the premises himself because the record does not establish that Mr. Ziemer violated the contractual provisions for access or engaged in improprieties which constituted flagrant misconduct or otherwise exceeded the boundaries of protected representa-tional activity under the Statute. The Union clearly had a right to file a mass grievance. See 5 U.S.C. §§ 7114, 7121(b)(3)(A). The "offensive" business card did not constitute flagrant misconduct. See Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA 7, 11-13 (1995). The other alleged problems cited by Dr. Schoenfeld to the Governor, alleged unscheduled meetings and harassment of nonmembers, have no support in the record. I conclude from Dr. Schoenfeld's actions that he was clearly suggesting and soliciting that the Governor take action to ban Mr. Ziemer from the Pueblo and the Isleta Elementary School. The Governor received the intended message and took the desired action the same day.

As a direct result of this action by Mr. Schoenfeld, Mr. Ziemer and other officers of the Union have been precluded from carrying on Union representational activities at the School since August 29, 1994. As a result of Respondent's solicitation of, and compliance with, the ban, Mr. Ziemer, a nonemployee Union representative, was prevented from meeting with bargaining unit members in September 1994 and on January 11, 1995, and IEF President Patrick Baxtrom and IEF Vice President Marie Baca, unit employees, were prevented from meeting with members of the bargaining unit on March 22, 1995. By this conduct, Respondent committed unfair labor practices in violation of section 7116(a)(1) of the Statute, as alleged.

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to Section 2423.29 of the Authority's Rules and Regulations, and Section 7118 of the Federal Service Labor-Management Relations Statute, the Bureau of Indian Affairs, Isleta Elementary School shall:

1. Cease and desist from:

a. Soliciting the Pueblo of Isleta, the Governor of the Pueblo of Isleta, or the Tribal Council of the Pueblo of Isleta to ban representatives of the Indian Educators Federation (the Union) from the Pueblo of Isleta and Isleta Elementary School and enforcing any such ban by the Tribal Government of the Pueblo of Isleta that prevents Union representatives from engaging in representational activity at the Isleta Elementary School.

b. In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured to them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

a. Through the Principal of the Isleta Elementary School, request in writing and orally that the Pueblo of Isleta, including the Governor of the Pueblo of Isleta and the Tribal Council of the Pueblo of Isleta, rescind the ban of representatives of the Indian Educators Federation, including IEF Field Representative Dennis Ziemer, IEF President Patrick Baxtrom, and IEF Vice-President Marie Baca, from the Pueblo of Isleta and Isleta Elementary School. The request shall specifically inform officials of the Pueblo of Isleta that these Union representatives were engaged in lawful and protected representational activities at the School pursuant to the Federal Service Labor-Management Relations Statute and that any suggestion to the contrary by the Principal to officials of the Pueblo of Isleta is regretted. If the subject of the ban is, to Respondent's knowledge, thereafter made a part of a Tribal Council agenda, Respondent shall endeavor to reiterate its position, as set forth herein, to the Council, and shall notify the Union and the Denver Region of the Federal Labor Relations Authority prior to any such impending Tribal Council meeting or other consideration.

b. Unless and until the Pueblo of Isleta rescinds the ban of IEF Field Representative Dennis Ziemer, President Patrick Baxtrom, Vice-President Marie Baca, and on Union meetings at the school, transport bargaining unit employees, at their request and with official time for the transporta-tion, to a location off of the Pueblo of Isleta during non-work time to meet periodically with the Union representative, furnishing such services and facilities as are necessary to enable unit employees to meet with their representatives.

c. Make any other necessary arrangements for nonemployee and BIA employee Union repre-sentatives to represent unit employees consistent with the Federal Service Labor-Management Relations Statute to the same extent that Union representatives represented unit employees prior to August 29, 1994.

d. Post at the Bureau of Indian Affairs, Isleta Elementary School, Pueblo of Isleta, New Mexico copies of the attached Notice to All Employees on forms furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Principal, Isleta Elementary School, and they shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the these Notices are not altered, defaced, or covered.

e. Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Federal Labor Relations Authority, Denver Region, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

___________________________

GARVIN LEE OLIVER

Administrative Law Judge

Dated: December 14, 1995
Washington, DC


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 seek to have the Pueblo of Isleta, the Governor of the Pueblo of Isleta, or the Tribal Council of the Pueblo of Isleta ban nonemployee and BIA employee representatives of the Indian Educators Federation (the Union) and Union meetings from the Pueblo of Isleta and Isleta Elementary School.

WE WILL, through the Principal of the Isleta Elementary School, request in writing and orally that the Pueblo of Isleta, including the Governor of the Pueblo of Isleta and the Tribal Council of the Pueblo of Isleta, rescind the ban of nonemployee and BIA employee representatives of the Indian Educators Federation, including IEF Field Representative Dennis Ziemer, President Patrick Baxtrom, Vice-President Marie Baca, and on Union meetings from the Pueblo of Isleta and Isleta Elementary School. We shall specifically inform these officials of the Pueblo of Isleta that these Union representatives were engaged in lawful and protected representational activities at the School pursuant to the Federal Service Labor-Management Relations Statute and that any suggestion to the contrary to officials of the Pueblo of Isleta by the Principal of Isleta Elementary School is regretted. If the subject of the ban is, to our knowledge, thereafter made a part of a Tribal Council agenda, we shall endeavor to reiterate our position, as set forth herein, to the Council, and shall notify the Union and the Denver Region of the Federal Labor Relations Authority prior to any such impending Tribal Council meeting or other consideration.

WE WILL, unless and until the Pueblo of Isleta rescinds the ban of IEF Field Representative Dennis Ziemer, President Patrick Baxtrom, Vice-President Marie Baca, and on Union meetings, transport bargaining unit employees, at their request and with official time for the transportation, to a location off the Pueblo of Isleta during non-work time to meet periodically with Union representatives, furnishing such services and facilities as are necessary to enable unit employees to meet with their representatives.

WE WILL make any other necessary arrangements to enable non-employee and BIA employee Union representatives to represent unit employees consistent with the Federal Service Labor-Management Relations Statute to the same extent that Union representatives represented unit employees prior to August 29,1994.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

_____________________

(Activity)

Date:________ 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 provision, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, (303) 844-5224.




FOOTNOTES:


Authority's Footnotes Follow:

1. Unless otherwise stated, all dates refer to 1994.

2. The Principal felt that Ziemer "had backed him into a corner at the [s]pring meeting by trying to get him to make a decision about [rest] breaks in front of the staff." Judge's Decision at 4.

3. The Judge based his account of the meeting between the Principal and the Governor on the deposition of the Governor (J. Ex. 2) and a stipulation of anticipated testimony of the Principal (J. Ex. 4). The deposition and stipulation were prepared by agreement of the parties and submitted for the record. Neither the Principal nor the Governor testified at the hearing. See Judge's Decision at 6 n.4.

4. The Judge determined that the relationship between the Respondent and the Isleta Pueblo is an ongoing, close relationship. See Judge's Decision at 6. The Judge found that the Principal meets with the Governor about once a month or when necessary to inform him about activities and conditions at the school. According to the Judge, the Governor expects to be notified of any significant issues involving the school.

5. Article 6, Union Rights & Responsibilities, of the applicable collective bargaining agreement provides:

Section 5. Designated Union Representatives not employed by the local school who are on official representational business may visit school locations with advance notice. The Union Representative will check in with the Principal and state the purpose of the visit. Normally, this does not include meeting with members of the student body.

Judge's Decision at 5-6.

6. Section 7131(b) of the Statute states that "[a]ny activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status." 5 U.S.C. § 7131(b)

7. An agency and union may set forth in an agreement procedures for union access to the agency's premises, and the limitations imposed by that contractual agreement may be the basis of a defense for the denial of such access. See, e.g., Army and Air Force Exchange Service (AAFES), Lowry AFB Exchange, Lowry AFB, Colorado, 13 FLRA 310, 311 (1983). In this case, the parties have such an agreement, but the Respondent has not relied on it.


ALJ's Footnotes Follow:

1. Counsel for the Bureau of Indian Affairs (BIA) asserts that the caption identifies three entirely distinct entities: the BIA, the Isleta Elementary School, and the Pueblo of Isleta. It is apparent from the record that the caption identifies the BIA as the Respondent as well as the location of its alleged unfair labor practice, namely the Isleta Elementary School on the Pueblo of Isleta, where the School's principal was acting on behalf of BIA and where bargaining unit employees were located. Accordingly, as used herein, Respondent refers to the BIA.

2. Counsel for the General Counsel moved to strike the BIA's brief or, in the alternative, portions thereof. The motion to strike the brief is denied, no prejudice having been shown by the manner of BIA's initial timely service of its brief. The motion to strike references to the Office of the General Counsel's comments in the FLRA Quarterly Summary and to an arbitration decision is also denied; however, opinions of the General Counsel and awards of arbitrators are not binding on the Authority in the adjudication of unfair labor practices.

3. Counsel for the General Counsel's motion to correct the transcript is granted; the transcript is corrected as set forth therein.

4. The account of the meeting between Dr. Schoenfeld and Governor Lucero which follows is a composite made from the deposition of Governor Lucero and a stipulation of anticipated testimony of Dr. Schoenfeld. The deposition and stipulation were prepared by agreement of the parties and submitted for the record. Neither Dr. Schoenfeld nor Governor Lucero testified at the hearing.

5. Governor Lucero was unable to locate an official record of any previous ban of a Union representative by the Pueblo. He believed that such a ban was in effect in 1987-1988. BIA labor relations specialist Garcia testified that the Pueblo had banned the previous Union representative, Elmer Jackson, but acknowledged that he had been unable to verify this through the Governor's office. It is noted that BIA, Washington, D.C. was found to have committed various unfair labor practices in 1987-1988, including interfering in the bargaining relationship between the Union and local activities by directing its local activities to refuse to recognize and allow nonemployee Union representative Elmer Jackson access to unit employees at BIA schools in the Albuquerque and Gallup areas. See United States Department of Interior, Washington, D.C. and United States Department of Interior, Bureau of Indian Affairs, Washington, D.C. et al, 89 ALJ Decision Reports, Case Nos. 6-CA-80028, 6-CA-80064, 6-CA-80123, 6-CA-90122, 6-CA-90275, 6-CA-90266 (May 8, 1990).

6. There is no evidence in the record of the Union holding meetings without Dr. Schoenfeld's knowledge or of the Union harassing non-members.

7. Governor Lucero testified that he was offended by the card and felt that a professional should not present this type of card to a school principal. BIA labor relations specialist Richard Garcia, who takes part in tribal religious affairs, explained that the card could be considered religiously offensive because a Native American religious symbol is combined with a profanity.

8. The record does not reflect that it was made clear by the Governor, and agreed by Mr. Ziemer, that such a notice or check in had to be given in person and that permission had to be expressly granted following such notice or check in. I find that how the notice was to be given was left vague, was not clearly perceived or perceptible from the conversation at the meeting, and that Mr. Ziemer could have reasonably believed that telephone notice to the Governor's office was acceptable notice. A later, January 11, 1995, letter from the Governor to Dr. Schoenfeld states that the protocol for conducting any business on the reservation by off-reservation personnel is that the firms or individuals "must first seek permission to conduct such business and meetings." There is no evidence that this letter was sent to the Union. A January 12, 1995 letter to IEF President Baxtrom merely refers to the protocol discussed with Mr. Ziemer at the December 20, 1994 meetin