[ v13 p239 ]
The decision of the Authority follows:
13 FLRA No. 41 DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE, 31st COMBAT SUPPORT GROUP, HOMESTEAD AIR FORCE BASE Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 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. 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 DECISION 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. 14.2)) 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 charge. 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.