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13:0239(41)CA - DOD, Air Force, 31st Combat Support Group, Homestead AFB and NFFE Local 1167 -- 1983 FLRAdec CA

[ v13 p239 ]
The decision of the Authority follows:

 13 FLRA No. 41
 Charging Party
                                            Case No. 4-CA-1030
                            DECISION AND ORDER
    The Chief Administrative Law Judge issued the attached Decision in
 the above-entitled proceeding, finding that the Respondent had not
 engaged in the unfair labor practices alleged in the complaint, and
 recommending that the complaint be dismissed in its entirety.
 Thereafter, the Charging Party filed exceptions to the Chief Judge's
 Decision and the Respondent filed an opposition to the Charging Party's
 exceptions and an accompanying brief.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Chief Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Chief Judge's Decision and the entire record, the Authority hereby
 adopts the Chief Judge's findings, conclusions, and recommended Order.
    IT IS ORDERED that the complaint in Case No. 4-CA-1030 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., September 30, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                                       Case No. 4-CA-1030
    Barbara S. Liggett, Esq.
                      For the General Counsel
    James A. Harper, Esq.
                     For the Respondent
    Arthur Schaffer
                     For the Charging Party
    Before:  JOHN H. FENTON
                     Chief Administrative Law Judge
                           Statement of the Case
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute (5 U.S.C. 7101 et seq.) and the Final Rules and
 Regulations issued thereunder (5 C.F.R. 2423.14 et seq.).  It is based
 on a Complaint issued by the Regional Director of Region IV, Federal
 Labor Relations Authority, alleging that Respondent violated Section
 7116(a)(1) on October 13, 1980 and March 5, 1981, when it "reenacted and
 reaffirmed" a policy which prohibited the posting of Union literature
 during all paid time, including coffee and lunch breaks.
    A formal hearing was held in Miami, Florida on May 4, 1982.  All
 parties were afforded full opportunity to examine witnesses, introduce
 evidence and file briefs.  Upon the entire record, including my
 observation of the witnesses and their demeanor, I make the following
 findings of fact, conclusions of law and recommended order.
                             Findings of Fact
    1.  Respondent and Local No. 1167 has been parties to successive
 collective bargaining contracts since 1976.  The contract in existence
 at relevant times provided that:
          (I)nternal union business such as soliciting membership,
       collecting dues, electing officers, meeting and posting and
       distributing literature will be conducted during non-duty hours of
       the employees involved.  However, normal person-to-person
       conversation at the work site regarding labor organizations is
       permitted providing there is not interference with production of
       work.  (Art. 5.2(a))
          Space on Employer bulletin boards shall be available for use by
       NFFE 1167.  . . . (T)he work section shop steward will be
       responsible for up-keep of the union portion of the bulletin
       board.  . . . Personnel found tampering or removing materials from
       NFFE bulletin boards may be subject to disciplinary action.  (Art.
    2.  There is no convincing evidence of discussions, during the
 negotiation of either contract, concerning the meaning of "non-duty
 hours," i.e., whether it included all time for which an employee is
 paid, or excluded "coffee breaks" and paid lunch periods when work was
 not expected of an employee.  While Union President Schaffer said that
 discussions took place indicating that duty hours meant when an employee
 is expected to work, the management negotiator recalled no such
 discussion and the Chief Steward understood it to include coffee breaks
 and paid luncheon periods.  The lack of a definition was not remedied in
 the contract executed in February of 1982, after the events at issue
 here, nor was any effort made to clarify the matter, although the
 provision was otherwise modified.
    3.  In April 1980, the Activity was finally provoked to clarify its
 policy.  A Union officer, apparently during a coffee break, posted an
 item about a perceived threat that work would be contracted out.  It was
 removed by two master sergeants offended by its content, and a meeting
 took place between Union and management officials.  As a result,
 Respondent's Civilian Personnel Officer issued to his managers and
 supervisors a memorandum respecting the "posting of official Union
 literature on Base Bulletin Boards by Local 1167 (NFFE)".  It said that:
          Posting and removal of literature will be done by
       representatives of Local 1167 during their non pay status (before
       and after work hours and during authorized meal breaks for which
       pay is not received).
    4.  When President Schaffer could not persuade the Civilian Personnel
 Officer to remove this restriction on access to the bulletin boards, he
 wrote the Base Commander requesting that the memorandum be amended to
 explicitly permit Union representatives to post or remove materials
 during lunch and rest periods.  On May 28, 1980, the Commander replied,
 quoting Section 7131(b) of the Statute, /1/ and stating that:
          Posting and removal of literature from Union bulletin boards is
       internal Union business and, as such, is not authorized during
       duty time.  Employees are compensated for break periods and 20
       minutes on-the-clock lunch periods consequently, these periods
       have been determined to be duty time.
    5.  Schaffer made another effort to secure a change in bulletin board
 policy in September.  On October 18, 1980, Colonel Scarpino, the new
 Base Commander wrote him, concurring in his predecessor's determination
 that both breaks and paid lunch periods were duty time, and thus not
 available for posting or removing bulletin board materials.
    6.  Schaffer again asked that the matter be reconsidered and the
 April 1980 policy letter rescinded.  On March 5, 1981, Colonel Scarpino
 responded, reaffirming his conviction that "maintaining Union bulletin
 boards is . . . internal union business and therefore is not authorized
 during duty time." On June 29, Schaffer filed an unfair labor practice
                        Discussion and Conclusions
    General Counsel contends that this case is governed by Oklahoma City
 Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma (6 FLRA
 159), where the Authority found violative of Section 7116(a)(1) a rule
 prohibiting solicitation of membership during all paid breaks, on the
 ground that "paid free time" falls within the meaning of the term
 "nonduty status" as used in Section 7131(b), and hence may be used for
 solicitation purposes.  From this holding, the General Counsel reasons
 that "(r)ules barring union activity by employees during their non-work
 time, including breaks and meal periods, have been determined to
 constitute violations of Section 7116(a)(1)." Respondent asserts that
 the rule first enunciated in April, 1980, did not constitute a
 unilateral change, and is, in any event, beyond attack under the
 six-months limitation of Section 7118(a)(4), and that the limitation on
 access to bulletin boards was negotiated, so as to render this dispute
 one of contract interpretation which should be resolved under the
 negotiated grievance procedure rather than in this forum.
    It should first be observed that this is not a case involving a rule
 restricting the rights of employees to engage in union activity, whether
 for or against the incumbent union.  The relevant contract provisions
 have to do with the conduct of internal union business, and the use, by
 Local 1167, of the Activity's bulletin boards.  Looking to the private
 sector for guidance, it is to be noted that, while unions cannot bargain
 away the statutory rights of employees to engage in solicitation or to
 distribute literature, whether for or against an incumbent, /2/ neither
 unions /3/ nor employees /4/ have a statutory right to bulletin boards.
 In the absence of a showing that an employer has discriminatorily denied
 the use of a bulletin board to a union or employees attempting to
 disseminate their views about a union, access to a bulletin board, and
 limitations on its use, are governed by an employer's rules or by a
 collective bargaining agreement.  In the absence of any evidence, here,
 as to the practice concerning the posting of other matters on the
 Activity's bulletin boards, we are not presented with a case where the
 Union was denied access which was available to others.
    The collective bargaining agreements contain no definition of
 "nonduty hours", and there is no persuasive evidence that any definition
 was agreed upon during negotiations.  Even though the Base Commander's
 letter of May 28, 1980 suggests that he drew upon Section 7131(b) in
 justifying his prohibition of posting or removal of bulletin board
 materials during all time for which compensation is received, it does
 not follow that his rule (or interpretation of the contract) was
 rendered invalid by the Authority's quite different construction of
 Section 7131(b) in Tinker.  As noted, Tinker declared invalid a rule
 prohibiting the employees' exercise of statutory rights during their
 paid free time, holding such time falls within the meaning of the term
 "nonduty status" and is therefore not affected by the Statute's
 constraints on the conduct of a union's internal business when an
 employee is in duty status.  We are not confronted here with
 restrictions upon statutory rights, but rather, a limited, contractual,
 right to bulletin boards.  Whatever the parties meant in their
 agreement, we are at most faced with a dispute over the interpretation
 of a contract, or with promulgation of a rule which arguably violates
 the contract.  The meaning of that contract is not affected by the
 Authority's holding in Tinker, for the Authority is powerless to alter
 the agreement reached, except where it encroaches upon statutory rights
 which a collective bargain representative may not waive.  /5/
    Thus, in my view, the General Counsel erroneously equates "the right"
 to use an Activity's bulletin boards with the right of employees
 otherwise to disseminate their views regarding the exercise of rights
 protected by Section 7102 on the Activity's premises and during times
 when they are being paid but not required to work.  They are not
 equitable, /6/ and Respondent does not violate the law by treating them
 differently.  /7/
    Having concluded that it is not unlawful for Respondent to so limit
 the posting or removal of Union materials on its bulletin boards, but
 that their conduct is at most an arguable breach of contract for which
 contractual grievance machinery exists, I recommend that the Authority
 dismiss this complaint in its entirety.  /8/
                                       JOHN H. FENTON
                                       Chief Administrative Law Judge
 Dated:  November 19, 1982
          Washington, DC
 --------------- FOOTNOTES$ ---------------
    /1/ Which states that " . . . activities . . . relating to the
 internal business of a labor organization . . . shall be performed
 during the time the employee is in a nonduty status."
    /2/ NLRB v. Magnavox Company of Tennessee, 415 US 322, 85 LRRM 2475.
    /3/ Container Corporation of America, 244 NLRB 318, enf. 649 F.2d
 1213 (CCA6);  Davis Company v. Furniture Workers, 109 LRRM 3192.
    /4/ Group One Broadcasting Co., West, 222 NLRB 993;  Challenge-Cook
 Brothers of Ohio, Inc., 153 NLRB 92, 99, 374 F.2d 149, 152-154 (CCA6).
    /5/ See NLRB v. Magnavox Company of Tennessee, supra, fn. 2.
    /6/ General Motors Corp., 212 NLRB 133, 135.
    /7/ While beyond the scope of this decision, it is to be noted that
 Respondent's interpretation of "non-duty hours", as used in its contract
 with Local 1167, would appear to apply to solicitation and distribution
 as well as posting, as all such subjects are dealt with in the same
 paragraph.  If so, such restrictions would appear to be unlawful.  This
 case is, however, confined to the question whether Respondent could
 lawfully prohibit access to bulletin boards during paid time.
    /8/ I of course need not reach Respondent's defenses grounded on the
 six-months limitation of Section 7118(a)(4) and the claim that the rule
 promulgated in April of 1980 was not a unilateral change but a
 codification of existing policy which was thereafter reaffirmed.  Having
 been required to give some thought to such matters, I think it useful to
 note that the rule promulgated was not alleged to constitute a
 unilateral change, but simply an unlawful interference with the rights
 of employees to communicate about Union matters.  If such a rule is
 maintained and enforced into the period within six months of the filing
 of the unfair labor practice charge, Section 7118(a)(4) provides no
 defense because the rule's existence constitutes a continuing violation,
 even though no violation may be found based on its original promulgation
 more than six months before the charge was filed.  Cone Mills Corp.,
 White Oak Plant, 174 NLRB 1015, 1021.  Here the charge was filed on June
 29, 1981, and could not embrace promulgation of the rule in October of
 1980, as the Complaint seems to allege.