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The decision of the Authority follows:
15 FLRA No. 182 BUREAU OF ENGRAVING AND PRINTING Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 3-CA-20435 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practice alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and a brief in support thereof. /1A/ 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 Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20435 be, and it hereby is, dismissed. Issued, Washington, D.C., August 31, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Charles H. Palmer, Jr. Joanne W. Simms For Respondent William P. Milton, Jr. For Charging Party Carolyn J. Dixon, Esq. Susan Shinkman, Esq. For General Counsel, FLRA Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq., 92 Stat. 1191 (hereinafter referred to as the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410, et seq. A charge was filed on March 22, 1982 by National Treasury Employees Union (hereinafter referred to as the Union and/or NTEU), against Bureau of Engraving and Printing (hereinafter called Respondent and/or BEP). Pursuant to the above described charge, on July 16, 1982, the General Counsel of the FLRA, by the Regional Director for Region 3, issued a Complaint and Notice of Hearing alleging that Respondent violated Section 7116(a)(1) of the Statute by engaging in surveillance when its agent took notes of employees engaged in lawful picketing on behalf of the Union. Respondent filed an Answer in which it denied that it had violated the Statute. A hearing was conducted before the undersigned in Washington, D.C. General Counsel of the FLRA, BEP and NTEU were represented and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Post hearing briefs were filed and have been fully considered. Based upon the entire record in this matter, my observation of the witnesses and their demeanor, and my evaluation of the evidence, I make the following: Findings of Fact BEP is responsible for the printing of currency, postage stamps, and other securities for the U.S. Government. BEP is located in two buildings, the Main Building and the Annex on 14th Street in Washington, D.C. The Main Building is across 14th Street from the Annex. Respondent employees approximately 2,500 persons. The employees are divided into approximately 17 separate collective bargaining units represented by 15 separate unions. NTEU represents a unit of approximately 275 BEP clerical and technical employees. On September 16, 1981 William P. Milton, Jr., an NTEU National Field Representative, was escorted from one of BEP's buildings because his conduct during negotiations was allegedly disruptive. On September 18, 1981 Milton was arrested and charged with disturbing the peace by assaulting a member of the BEP Police Force when Milton allegedly tried to force his way into one of BEP's buildings. /1/ During the mornings of September 24 and 25, 1981 NTEU distributed leaflets in front of the BEP building. The leaflets and a notice posted on the NTEU bulletin board stated that there would be picketing in front of the Annex on September 25 at 11:15 a.m. to 1:00 p.m. to protest the arrest of Milton. During the morning of September 25, 1981 BEP Labor Relations Officer Richard Hamilton and number of other BEP officials met and decided upon the procedures to be followed during the picketing. It was decided to have extra security people assigned to the doors, under the supervision of Inspector Tuma, and Hamilton was assigned to monitor the picketing and to keep records in case any untoward event occurred. On September 25, 1981, commencing at about 11:15 a.m., the Union picketed BEP. The picketing took place on the sidewalk in front of the entrance to the Annex. About eight BEP employees and other NTEU officials engaged in the picketing at various times between 11:15 a.m. and 1:00 p.m. From the sidewalk there are about four stairs that lead to a relatively broad landing in front of the doors into the Annex. The entrance to the Annex consists of three sets of double doors. /2/ The center set is the actual entrance and has, inside, all the necessary security paraphernalia. /3/ Facing the entrance from the outside, the set of doors to the left is closed to the outside and the inside foyer is outfitted with storage lockers. The set of doors on the right, although not normally used as an entrance, is available for such use by employees. Inside the building, at each set of double doors is an inside foyer which, through an other set of double doors, leads to the building lobby. In the building lobby, in front of the three sets of double doors at the start of the picketing, a number of BEP Guards were gathered under the supervision of Inspector Tuma. Hamilton stood inside the small foyer between the right set of outside double doors and the inner set of double doors. /4/ Hamilton had a notebook in which he noted the language of the signs, the things the pickets were saying and the identity of the pickets, which included a number of BEP employees. Hamilton, although he occasionally moved throughout the lobby area, observed the picketing for the full time it was conducted. Although not conspicuous, Hamilton was at least, on occasion, observable and observed by employees. The security arrangements, including Hamilton's observing and taking notes, were made because BEP feared, in light of what had occurred earlier with respect to Milton, that NTEU representatives might attempt to enter the building and/or demonstrate on BEP property. Discussion and Conclusions General Counsel of the FLRA urges that Respondent, by its agent Hamilton, violated Section 7116(a)(1) of the Statute /5/ because Hamilton's conduct, in observing and taking notes concerning the picketing, interfered with the employees' right to engage in informational picketing on behalf of the Union, undisputedly a protected activity. General Counsel of the FLRA, relying on Department of the Army, Fort Bragg Schools, 3 FLRA 363 (1980) (hereinafter call the Fort Bragg Schools Case) urges, rather broadly, that surveillance of any protected activity by Respondent, has a tendency to interfere with employees' rights. The Fort Bragg Schools Case, supra dealt with the presence of school principals at four "union informational meetings held for teachers." The Administrative Law Judge held that it was reasonable to infer that some employees might have felt inhibited by the presence of their supervisors from showing an interest and asking questions. The Administrative Law Judge stated, "The meetings in question were designed and advertised for teachers, not principals, therefore, the awkward presence of the principals tended to highlight their anxiety about union organization." Fort Bragg Schools Case, supra at 376. The subject case involves management observation and surveillance, not of a private union meeting aimed at employees, but rather a public union demonstration designed to be observed and seen. The very purpose of the picketing was to demonstrate and pronounce publicly the Union's position and for employees to publicly demonstrate their support. The very nature of such picketing is to be seen and to make one's position known publicly. This public nature is what distinguishes picketing from union meetings. Obviously, surveillance of union meetings between employees, which by their nature are private, might reasonably be foreseen to have a tendency to inhibit employees from attending and participating in such meetings. However, the very public nature of picketing and its purpose to make a public statement of support, involves employees being seen and identified. Accordingly, observation and surveillance by management would not reasonably tend to inhibit or interfere with employees engaging in such activity. In fact observation and identification is a very purpose of the activity. To conclude that the entire world may observe, except management, would be unrealistic and, naive. When employees choose to make a public statement and to walk a picket line it must be anticipated that they will be seen and identified by management officials; it is in the very nature of picketing. The General Counsel of the FLRA urges that the cases in the private sector, decided by the National Labor Relations Board (NLRB), are relevant in interpreting the Statute with respect to the public sector. General Counsel of the FLRA relies upon Flambeau Plastics Corporation, 167 NLRB 735 (1967), enfd. 401 F.2d 128, 136 (C.A.7, 1968), Cert. denied 393 U.S. 1019 (1969); and Glomac Plastics, Inc., 234 NLRB 1309 (1978). In these cases the NLRB held that photographing peaceful picketing by the employer, tended to interfere with employees' rights to engage in protected activity. /6/ In Flambeau Plastics Corporation, supra, the employer stated that it was keeping a pictorial record in the event that "something did happen." The NLRB rejected this conjecture that something might happen when balanced against a tendency, which the NLRB saw that conduct of having, of interfering with employees' rights to picket. In the foregoing cases involving photographing of peaceful employee picketing /7/ the NLRB concluded that such conduct, by its very nature, inhibited and restrained employees from picketing and thus interfered with the employees' rights to engage in a concerted activity protected by the National Labor Relations Act. Thus such conduct by the employer, absent more, violated Section 8(a)(1) of the Act. /8/ The NLRB placed the burden upon the employer to justify the photographing sufficiently to warrant such an interference with employees' protected activity. In United States Steel Corporation, 255 NLRB No. 164, 107 LRRM 1097 (1981), enfd. denied Sub Nom. United States Steel Corporation v. National Labor Relations Board, . . . F.2d . . . , 110 LRRM 2902 (3rd Cir., 1982), (hereinafter called the U.S. Steel Case). The NLRB held that U.S. Steel violated Section 8(a)(1) of the Act when it photographed employees who were engaged in a public demonstration to protest an alleged lack of locker room facilities for female employees. The NLRB, in finding that the employer violated Section 8(a)(1) of the Act, concluded " . . . it is well established that, absent legitimate justification, an employer's photographing of its employees a while they are engaged in protected concerted activity constitutes unlawful surveillance." /9/ The NLRB concluded further " . . . Respondent has failed to establish any legitimate justification for its actions . . . it is well settled that 'purely anticipatory photographing of peaceful picketing in the event something 'might' happen does not justify (an employer's) conduct when balanced against the tendency of that conduct to interfere with the employees' right to engage in concerted activity.' Glomac Plastics, Inc., supra." /10/ The U.S. Court of Appeals for the Third Circuit refused to enforce the NLRB Order in the U.S. Steel Case /11/ and in so doing specifically rejected the NLRB's per se rule. The Court concluded that whether an employer's conduct would have a reasonable tendency to intimidate or coerce employees in the exercise of protected rights should be evaluated under the circumstances of the case and not be the subject of some per se rule. The Court then evaluated the circumstances there present and concluded under those circumstances "petitioner's conduct did not reasonably tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights." U.S. Steel Case, 110 LRRM 2902, 2905. The Third Circuit, with its broad language, seemed to reject all NLRB per se rules, whereas the Supreme Court held that the NLRB could create a presumption that a particular class of conduct is coerce under Section 8(a)(1) of the Act, and once the NLRB General Counsel proved that such conduct had occurred, the employer could avoid liability only if it could adequately justify its conduct. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 16 LRRM 620 (1945). The NLRB in applying its per se rule treats photographing picketing, that is engaging in surveillance of picketing, in the same manner it treats the surveillance of any other protected concerted activity. However, as noted above in the discussion of the applicability of the Fort Bragg Schools Case, supra, all protected concerted activity is not the same and clearly observing and photographing employees engaged in picketing or other public demonstration would not reasonably tend to interfere with employees' rights to the same extent as photographing and observing employees attending private organizational meeting in an employees' home. /12/ In agreement with the Third Circuit Court of Appeals decision in the U.S. Steel Case, supra, I conclude that observing and photographing employees engaged in picketing does not per se interfere with the employees' rights to engage in such a protected activity. In so concluding I rely on the public nature of the conduct and that the very aim of the picketing is to be observed by the public, presumably including the employer, and to make a public statement. In such circumstances therefore, I reject the NLRB per se rule and conclude each such case must be judged in light of its own circumstances. Therefore, the General Counsel of the FLRA must establish not only that the Agency photographed or observed pickets, but, additionally that the circumstances were such that such photographing or observing would reasonably tend to interfere with or restrain employees from engaging in the picketing. In the subject case the General Counsel of the FLRA failed to establish that any such circumstances were present. /13/ Accordingly, I conclude that the record in the subject case fails to establish that BEP violated Section 7116(a)(1) of the Statute. /14/ Having concluded that BEP has not violated Section 7116(a)(1) of the Statute, I recommend that the FLRA issue the following: ORDER It is hereby Ordered that the Complaint in Case No. 3-CA-20435 be and hereby is, dismissed. SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: December 27, 1982 Washington, DC --------------- FOOTNOTES$ --------------- /1A/ The Charging Party's exceptions were not timely filed and therefore have not been considered. /1/ All charges against Milton have been dropped. A civil action against BEP for false arrest is apparently still pending and settlement talks are under way. /2/ Each door is a relatively large metal door with four large windows, one above the other. Each window is covered by a metal grill. /3/ Security is necessary because of the nature of the items printed by BEP. /4/ The interior glass double doors were kept closed most of the time. The exterior metal doors were kept closed, but were opened, on occasion, as employees entered and left the building. /5/ Section 7116(a)(1) of the Statute provides: "(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- "(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . " /6/ Cf. Crown Cork and Seal Co., Inc., 254 NLRB No. 174 (1980) in which the NLRB found that the employer's note taking of a union solicitation interfered with employees' protected rights. The NLRB found that the employer had not adequately set forth any justification of its conduct and the note taking was found to inhibit employee communication with the union. /7/ Observing pickets and taking notes is, for the purposes of analysis of the subject case, indistinguishable from photographing pickets. The effects of recording picketing by taking notes or photographs are substantially identical. /8/ Section 8(a)(1), 29 U.S.C. 158(a)(1) (1976), provides: (a) It shall be an unfair labor practice for an employer-- (1) to interfere with, restrain, or coerce employees in the exercise of the right guaranteed in section 157 of this title (i.e. section 7 of the Act). . . . /9/ U.S. Steel Case, 107 LRRM 1097, 1098 (1981). /10/ U.S. Steel Case, supra. /11/ U.S. Steel Case, . . . F.2d . . ., 110 LRRM 2902 (3rd Cir. 1982). /12/ Similarly, an employer's observing and photographing employees making statements on television would have even a different affect. /13/ E.g. Union Animus, prior unfair labor practices, threats, etc. Further employer surveillance may be used as evidence of employer knowledge that employees had engaged in the picketing in subsequent unfair labor practice cases. /14/ Even if the NLRB per se rule were adopted by the FLRA and made applicable, under the Statute, to the public sector, I conclude that BEP was justified on September 25, 1981 in observing and taking notes in anticipation of a possible incident. In this regard it is noted that NTEU Representative Milton had been ejected from a BEP building on September 16, 1981 and had been arrested and charged with disturbing the peace by assaulting a BEP guard on September 18, 1981, when Milton tried to force his way into a BEP building. The picketing was to protest these two incidents involving Milton. In such circumstances BEP could reasonably anticipate that the picketing could involve some untoward incident and BEP was therefore justified in observing the picketing and taking notes.