13:0409(69)CA - SSA and AFGE Local 1923 -- 1983 FLRAdec CA

[ v13 p409 ]
The decision of the Authority follows:

 13 FLRA No. 69
 Charging Party
                                            Case No. 3-CA-1481
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record in this case, including the
 parties' stipulation of facts, /1/ accompanying exhibits, and the
 parties' contentions, /2/ the Authority finds:
    The complaint alleges that the Respondent, Social Security
 Administration, interfered with, restrained and coerced its employees in
 the exercise of their rights guaranteed by section 7102 of the Federal
 Service Labor-Management Relations Statute (the Statute, /3/ in
 violation of section 7116(a)(1), /4/ by prohibiting employees from
 showing a film on behalf of the Charging Party, American Federation of
 Government Employees, Local 1923, AFL-CIO (the Union), in working areas
 during non-work time as part of a membership recruitment effort.  The
 Union has been recognized as the exclusive representative for a unit of
 employees at the Activity since 1963.
    The stipulated record shows that on August 18, 1980, Richard Levine,
 a Union organizer employed by the Respondent, sent a letter to the
 Respondent requesting permission to show a twelve minute film strip to
 employees in work areas of Respondent's facility during the employees'
 non-work time, as part of the Union's membership drive.  Solicitation
 for Union membership and distribution of Union literature had previously
 occurred, as a matter of practice, in work areas during non-work time;
 although management was aware of this practice, it never tried to
 prohibit it.
    In subsequent conversations during August and September of 1980
 between representatives of the Union and representatives of management
 about the request to show the film strip, the Union gave assurances to
 management that the film equipment was small and would not disrupt
 employees who were working in other areas.
    The Union proposed to show the film to small groups of employees by
 work unit during their common lunch period, which is non-work time, in
 their work area.  In most cases where the film would be shown, no
 employees would be working in adjacent areas.  Virtually all work areas
 are laid out in an open space configuration separated by file cabinets.
    The Union offered to show the film on a trial basis with a management
 labor relations representative present, and, if it proved disruptive, to
 stop the film.  The film strip with accompanying sound track was
 previewed by two staff members of the Division of Labor Relations on
 September 2, 1980.
    During the latter part of August or early September 1980, the
 Respondent, through its agent Larry Massanari, denied the Union
 permission to show the film strip in work areas of Respondent's
 facility, taking the position that the film could disrupt employees in
 adjacent work areas during their work time.  The Respondent offered to
 make available to the Union other facilities, such as conference rooms,
 for the Union to show its film strip with accompanying sound track.  The
 Union refused, stating that it had a right to show the film in work
 areas during non-work time, since other forms of solicitation, such as
 bond drives, Combined Federal Campaign, blood donor programs,
 collections for the Employees Activity Association, Inc., and
 collections for parties, lunches, and dinners had occurred with
 management's knowledge in work areas both during work time and non-work
 time.  Many employees eat lunch in their work areas as opposed to the
 cafeteria, and the Union stressed that the film would have a greater
 audience if it were shown in the work area, as employees who were not
 Union members would be reluctant to leave their work areas while eating
 lunch to attend a Union function in another room.
    The General Counsel asserts that a policy or rule which prohibits
 solicitation by employees in work areas, during non-work time, in the
 absence of special circumstances, constitutes an interference with
 employee rights under section 7102 in violation of section 7116(a)(1) of
 the Statute.  The General Counsel alleges that, by prohibiting the
 showing of the film for the purpose of Union membership recruitment
 during non-work time in work areas, the Respondent interfered with its
 employees' right to solicit in violation of the Statute.
    The Respondent's primary position is that the issue herein involves
 not the unit employees' right to solicit for Union membership but rather
 the use of government facilities, and thus is a matter of contract
 interpretation since Article 7 of the parties' negotiated agreement
 relates to such use.  The record shows only that Article 7 of the
 agreement refers to the use of agency facilities for meetings of the
 Union and not to union solicitation.  Absent a clear and unmistakable
 waiver, a party will not be deemed to have given up a statutory right,
 such as the unit employees' right to solicit involved herein.  Veterans
 Administration Regional Office, Denver, Colorado, 7 FLRA No. 100 (1981);
  Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100
 (1981);  Department of the Air Force, Scott Air Force Base, Illinois, 5
 FLRA No. 2 (1981).
    The Respondent alternatively contends that, if the instant case
 involves the employees' right to solicit, the Union's request to show
 the film constituted a special circumstance justifying the Respondent's
 denial of that request.
    The solicitation of union membership is a right protected under
 section 7102 of the Statute which guarantees employees "the right to
 form, join or assist any labor organization, or to refrain from such
 activity . . . ," although section 7131(b) of the Statute specifically
 requires that such "solicitation of membership . . . be performed during
 the time the employee is in a nonduty status." Accordingly, the
 Authority has previously concluded that management's conduct in
 maintaining a rule prohibiting employees from soliciting membership
 during their breaks (i.e., while in a "nonduty status") and disciplining
 an employee for violating such rule violated the Statute.  See Oklahoma
 City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
 FLRA No. 32 (1981).  The Authority further concludes that an employee's
 protected right to solicit union membership while in a nonduty status
 may be exercised in a work area where the employees being solicited also
 are in a nonduty status, absent any disruption of the activity's
 operations or any other unusual circumstances.
    In the circumstances herein, there is no indication that showing the
 film during the employees' non-work time (i.e., their lunch period) for
 the purpose of soliciting Union membership would have interfered with
 the work of the Activity.  Moreover, the record reveals that employees
 regularly eat, listen to radios, converse among themse