U.S. Federal Labor Relations Authority

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21:0757(94)AR - OFT and DOD Dependents Schools, Mediterranean Region -- 1986 FLRAdec AR

[ v21 p757 ]
The decision of the Authority follows:

 21 FLRA No. 94
                                            Case No. 0-AR-1005
                         I.  STATEMENT OF THE CASE
    This matter is before the Authority on an exception to the award of
 Arbitrator Thomas F. Carey filed by the Union under section 7122(a) of
 the Federal service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    A grievance was filed by the Activity and submitted to arbitration
 where the Arbitrator stated the issue as whether the Union violated the
 Parties' collective bargaining agreement when it used and encouraged
 unit members to use other than the contractual grievance procedure to
 seek redress from the Activity in matters covered by the grievance
 procedure.  In resolving the grievance, the Arbitrator in particular
 addressed an incident cited by the Activity as supporting its grievance.
  This incident involved the barring by the Spanish government of an
 overseas teacher from her teaching location on a naval base in Spain,
 and management's decision to place her on enforced leave without pay
 instead of reassigning her to another teaching location.  The Arbitrator
 specifically noted evidence of several letters on union stationery from
 the local union president to the Director of Department of Defense
 Dependents Schools, to the President of the United States, and to
 several members of Congress seeking assistance on the decision of the
 Spanish government to bar the teacher from her place of employment and
 the decision of the Activity not to reassign her.  The Arbitrator
 further noted evidence that the local union president in his
 representative capacity also urged unit members to send similar appeals
 to such persons.  On the basis of this evidence, the Arbitrator
 determined that these actions of the Union in seeking assistance on
 management's decision not to reassign the teacher violated the spirit
 and intent of the collective bargaining agreement and to this extent he
 accordingly sustained the grievance.  As a remedy the Arbitrator
 directed as follows:
          The Union is directed to inform its local Unon leaders, in
       writing, of their contractual obligation to utilize the
       contractual grievance procedure for those contractual "matters
       relating to their employment which are within the control of the
       Employer" as specified and distinguished in the body of this
       Decision, and to further advise them to cease and desist from
       taking such identifiable contractual matters, which are grievable
       under the Agreement, to other forums before exhausting the various
       levels of these prescribed, agreed upon contractual procedures.
                              III.  EXCEPTION
    In its exception the Union contends that to the extent the award has
 sustained the grievance and has directed the Union to cease and desist
 from the actions found violative of the collective bargaining agreement,
 the award is contrary to the First Amendment of the U.S. Constitution, 5
 U.S.C. Sections 2302(b), 7211 and section 7102 of the Statute.
                       IV.  ANALYSIS AND CONCLUSIONS
    In 5 U.S.C. Section 7211, the right of Federal employees to petition
 Congress is unequivocally protected.  That section provides that "the
 right of employees, individually or collectively, to petition Congress
 or a Member of Congress, or to furnish information to either House of
 Congress, or to a committee or Member thereof, may not be interfered
 with or denied." Section 7102 of the Statute similarly provides for the
 protection of certain rights of Federal employees.  Specifically,
 section 7102 pertinently provides:
          Each employee shall have the right to form, join, or assist any
       labor organization, or to refrain from any such activity, freely
       and without fear of penalty or reprisal, and each employee shall
       be protected in the exercise of such right.  Except as otherwise
       provided under this chapter, such right includes the right --
          (1) To act for a labor organization in the capacity of a
       representative and the right, in that capacity, to present the
       views of the labor organization to heads of agencies and other
       officials of the executive branch of the Government, the Congress,
       or other appropriate authorities(.)
    Moreover, the Authority has expressly ruled under section 7102 that
 the legitimate conduct of an employee, acting in a representative
 capacity, to publicize and communicate information on issues having a
 direct bearing on the working conditions of unit employees enjoys the
 protections of the Statute.  Bureau of Prisons, Federal Correctional
 Institution, Danbury, Connecticut, 17 FLRA 696 (1985);  compare United
 States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985)
 (actions found to have exceeded the bounds of protected activity).
    In this case the Authority finds that the conduct of the local union
 president found by the Arbitrator to have violated the spirit and intent
 of the parties' collective bargaining agreement was conduct protected by
 both section 7102 of the Statute and 5 U.S.C. Section 7211.  Thus, the
 Arbitrator's award by sustaining the grievance on the basis of such
 conduct and enforcing the parties' agreement to effectively direct that
 the Union cease and desist from such conduct constitutes restraint of
 and interference with protected employee rights.  Consequently, the
 Authority finds that this portion of the award is deficient as contrary
 to section 7102 of the Statute and 5 U.S.C. Section 7211.  /*/
                               V.  DECISION
    Accordingly, for these reasons, the award is modified to strike that
 portion of the award sustaining the grievance and directing a remedy.
    Issued, Washington, D.C., May 12, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
 (*) In view of this decision, it is not necessary or appropriate for the
 Authority to address the Union's First Amendment contentions.  Although
 the Union also contends that the award is contrary to 5 U.S.C. Section
 2302(b)(8), the exception provides no basis for finding the award
 deficient in this respect.  The Union fails to establish in what manner
 the Arbitrator's award is contrary to section 2302(b)(8) which prohibits
 certain agency officials from taking specified actions against any
 employee as a reprisal for the disclosure of information under certain