21:0849(103)CA - DOD Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy) and Will Schussel -- 1986 FLRAdec CA
[ v21 p849 ]
21:0849(103)CA
The decision of the Authority follows:
21 FLRA No. 103
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
MEDITERRANEAN REGION
NAPLES AMERICAN HIGH
SCHOOL (NAPLES, ITALY)
Respondent
and
WILL SCHUSSEL
Charging Party
Case Nos. 1-CA-40036
1-CA-40076
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Judge's Decision.
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, except as modified
herein.
Contrary to the General Counsel's assertion, the Authority does not
read the Judge's Decision as requiring a finding of intent as an element
in establishing a violation of section 7116(a)(1) of the Statute. The
Authority has previously held that in deciding whether agency management
violates section 7116(a)(1) by removing union documents from a bulletin
board, it must be determined whether the conduct would reasonably tend
to discourage union activity and support. See U.S. Department of
Justice, Federal Prison System, Federal Correctional Institution, Milan,
Michigan, 17 FLRA 1023, 1036 (1985). With respect to the Judge's
finding of a violation of the Statute in this case based on the
Respondent's conduct in prohibiting the Charging Party from posting
union literature, the Authority notes the Judge's finding of a past
practice whereby the Respondent allowed employees to post notices of all
kinds in the teacher's lounge. By comparison, in Federal Election
Commission, 20 FLRA NO. 3 (1985), the Authority found that management
did not violate the Statute by prohibiting the posting of notices since
there was no negotiated agreement or past practice authorizing such
postings. Finally, as to the Judge's finding of a violation based on
the Respondent's interference with the Charging Party's right to gather
information to support his charge of an unfair labor practice, the
Authority notes that the protected right to file a charge encompasses
the right to gather information in support of the charge. See
Department of Justice, Bureau of Prisons, Federal Correctional
Institution, Butner, North Carolina, 18 FLRA NO. 100 (1985), in which
the Authority found that protected activity under section 7102 of the
Statute encompasses an employee's right to conduct an investigation on
his own time to support a grievance, or in contemplation of filing a
grievance.
ORDER /1/
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Department of Defense Dependents
Schools, Mediterranean Region, Naples American High School, Naples,
Italy, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its employees in the
exercise of their rights guaranteed by section 7102 of the Statute, by
prohibiting the posting of and removing union literature placed in the
teacher's lounge or other non-work areas by its employees during
non-work time.
(b) Interfering with, restraining or coercing its employees in the
exercise of their rights guaranteed by section 7102 of the Statute, by
prohibiting employees from conducting investigations and gathering
evidence in support of unfair labor practice charges filed with the
Federal Labor Relations Authority.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed by
section 7102 of the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind and revoke the Special Faculty Bulletin issued in
December 1983, prohibiting the posting of materials on behalf of
organizations other than the exclusively recognized labor organization.
(b) Rescind and revoke the letter dated December 6, 1983, to employee
William Schussel, directing him to cease and desist from distributing a
questionnaire for the purpose of gathering evidence in support of his
unfair labor practice charge.
(c) Post at the Naples American High School, Naples, Italy, copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed
by an appropriate official, and shall be posted and maintained for 60
consecutive days thereafter, excluding holiday and vacation periods, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to ensure that such Notices are not altered, defaced or covered by
any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., May 15, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain or coerce our employees in the
exercise of their rights guaranteed by section 7102 of the Statute by
prohibiting the posting of, and removing union literature placed in the
teachers' lounge or other non-work areas by our employees during
non-work time.
WE WILL NOT interfere with, restrain or coerce our employees in the
exercise of their rights guaranteed by section 7102 of the Statute by
prohibiting them from conducting investigations and gathering evidence
in support of unfair labor practice charges filed with the Federal Labor
Relations Authority.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights guaranteed by
section 7102 of the Statute.
WE WILL rescind and revoke the Special Faculty Bulletin issued in
December 1983, Prohibiting the posting of materials on behalf of
organizations other than the exclusively recognized labor organization.
WE WILL rescind and revoke the letter dated December 6, 1983, to
employee William Schussel directing him to cease and desist from
distributing a questionnaire for the purpose of gathering evidence in
support of his unfair labor practice charge.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, Massachusetts 02116, and whose
telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
1-CA-40076
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS - MEDITERRANEAN
REGION
NAPLES AMERICAN HIGH SCHOOL (NAPLES, ITALY)
Respondent
and
WILL SCHUSSEL
Charging Party
Gerard M. Greene, Esq.
For the General Counsel
Joseph Caneva
Ronald E. Richards
For the Respondent
William Schussel
For the Charging Party
Before: ELI NASH, Jr.
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.
Section 7101, et seq., (herein referred to as the Statute).
Upon unfair labor practice charges filed by William Schussel (herein
called the Charging Party or Mr. Schussel) on October 25, 1983 and
December 7, 1983 against the Department of Defense Dependents Schools,
Mediterranean Region Naples American High School, (Naples, Italy)
(herein referred to as Respondent DODDS-M or Naples High School), the
General Counsel of the Authority, by the Regional Director for Region I,
issued a Consolidated Complaint and Notice of Hearing on February 27,
1984. The Consolidated Complaint alleged that Respondent violated
section 7116(a)(1) by maintaining an overly broad policy regarding the
posting of literature in the teachers lounge; and, by prohibiting an
employee from gathering information or evidence to support an unfair
labor practice charge which had been filed with the Authority. /2/
Respondent's Answer denied the commission of any unfair labor
practice.
A hearing on the Complaint was conducted in Naples, Italy at which
time Respondent and the General Counsel were represented by Counsel and
afforded full opportunity to adduce evidence, call, examine, and
cross-examine witnesses and argue orally. All parties filed briefs
which have been duly considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
The record is undisputed that the Overseas Federation of Teachers,
(herinafter called OFT), at all times material herein, was the exclusive
representative of all nonsupervisory professional school-level
personnel, with certain statutory exclusions not relevant to this
matter, employed by DODDS-M at the Naples High School. It is also clear
from the record that the Overseas Educational Association (herein
referred to as OEA) did not have "equivalent status" with the OFT within
DODDS-M or the Naples High School, at any time material herein.
The Naples High School began using its present facility in 1982. As
with many schools it provides a teachers' lounge or smoking room
containing tables, chairs, lockers and couches to be used by its
teachers. Teachers, administrators and administrative staff enter the
lounge through the teachers' work room which is connected to the lounge
by a short corridor. The lounge is located approximately ten to fifteen
feet from the administrative offices. Although school administrators at
one time used the teachers' lounge they discontinued use of the lounge
and lockers during the 1983-84 school year. The situation now is that
administrators such as the vice-principal visit the lounge on both
official school and unofficial business. The record therefore, revealed
the presence by administrators in other than an official capacity in the
teachers lounge and Respondent does not seriously dispute such use by
its administrators. Accordingly, it is found that administrators
dropped into the lounge often enough to become familiar with its
condition and its use.
Since the hearing was held at the school the parties had an
opportunity to view or inspect the lounge during the hearing. The
inspection revealed approximately forty-eight lockers lining the wall
opposite the entrance to the lounge and in plain view of anyone
entering. The room also contained six other lockers and a bulletin
board. It is uncontraverted that during 1983, a number of teachers
posted cartoons, postcards, decals, clippings, messages and other
materials, mostly having to do with the school on the outside of their
lockers. One teacher, Ms. Jayne Osgood testified that this posting of
materials was not unusual and that from time to time during the 1982-83
school year she had attached cut-outs and humorous ads to the outside of
her locker and that she had done the same during the fall of 1983, which
began a new school year. Ms. Osgood's locker is situated about in the
middle of the bank of lockers directly opposite the entrance. Further,
Ms. Osgood testified that she was not told by school administrators to
remove any of the items from her locker during 1982-83. The practice of
posting messages on the outside of lockers was even engaged in by the
school administrative staff. This practice continued even after the
lockers were painted in late 1983. Even thereafter a teacher posted a
sign-up sheet for a drama show on the outside of her locker. /3/ The
lockers themselves, although painted in late 1983, still bear the marks
of having paper or tape attached to their exterior. It is clear, that
the posting of materials on the outside of these lockers was at one time
a customary practice at Naples High School.
Respondent contends that prior to the 1983-84 school year the Naples
High School administration had a policy concerning neatness in the
school's facilities, to include the teachers' locker room. This policy
according to Respondent included a prohibition against posting of
materials on teachers mailboxes/lockers. The physical evidence and
testimony reveals that the observance of this policy had been "a little
lax." Respondent contends however, that with a new school principal
assuming the chief administrator's position for 1983-84 school year the
neatness policy, including the prohibition against posting of materials
on teacher's mailboxes and lockers, was reaffirmed and publicized both
orally and in writing during the 1983-84 school year. /4/ However, when
asking Mr. Schussel to remove his materials, the neatness policy, as we
later see, was never mentioned to him.
During the early part of September 1983 the OFT local representative
Ms. Colette Grillo met with Assistant Principal Migliaccio and informed
him of OEA material posted on the mailboxes/lockers. Ms. Grillo also
informed Mr. Migliaccio that if the administration did not take action
to have the material removed, she would file an unfair labor practice
charge with the Federal Labor Relations Authority.
Based on the above-cited physical evidence and record testimony
indicating a lax or non-existent neatness policy, at least with respect
to the teachers lounge, it is found that no such neatness policy existed
or if it existed it was never enforced prior to the 1983-84 school year.
Respondent therefore, had no established policy prohibiting posting
materials on lockers. In short, it appears that Respondent simply was
not concerned with the teachers' use of their lockers until Mr.
Schussel's display of OEA material aroused the ire of local union
representative, Colette Grillo.
In August 1983, Mr. Schussel, an Industrial Arts teacher employed at
the school since 1982-83, attached a clipboard to the outside of his
locker by means of a sheet metal tab. The clipboard was easily
removable. In addition to the clipboard, Schussel placed an OEA
insignia decal, which had an adhesive backing and could be removed
without damaging the locker's finish, on his locker. Mr. Schussel's
locker is one of those facing the entrance to the lounge. Schussel
placed several memoranda and bulletins on the clipboard published by OEA
allegedly describing OEA's efforts and accomplishments in collective
bargaining with DODDS. Mr. Schussel according to record testimony was
formerly an OEA Area Director in the Pacific Region before his
employment in Naples. During 1983-84, Schussel remained a member of OEA
and an officer in OEA.
Around September 19, 1983, Vice-Principal Migliaccio ordered Mr.
Schussel to remove the clipboard. When the clipboard was not removed on
the following day, Mr. Migliaccio informed Mr. Schussel that unless he
removed "all the OEA material from government property by the end of the
school day," disciplinary action would be taken against him. Migliaccio
also directed another teacher Jesse Gonzalez, who was present in the
locker room, to remove an OEA insignia decal which Gonzalez had attached
to his locker, or to similarly be disciplined. Mr. Schussel inquired
whether he could put the same items on the teachers' lounge bulletin
board used by teachers for ads and messages. Migliaccio replied, "no
where in this High School may you display anything that belongs to any
other organization other than the organization that is represented in
this school." Schussel and Gonzalez then complied by removing the
clipboard and decals. During this same period of time other teachers
continued to display a variety of cartoons, decals and similar materials
on their lockers.
The evidence firmly suggests that Migliaccio ordered Schussel to
remove the OEA material because the OFT local representative, Ms.
Grillo, complained of its posting and threatened to file an unfair labor
practice charge, and not because Migliaccio acted on his own initiative
after seeing the clipboard. Migliaccio's testimony describes the
clipboard as a "danger and a safety hazard," something he "bumpted into"
before seeing. Mr. Migliaccio made no mention of such a hazard in his
directives to Schussel.
School administration was aware of Schussel's use of the clipboard
long before September 19, 1983. Schussel's testimony confirms that the
clipboard hung on his locker in the spring of 1983 and stands
uncontradicted.
In late November 1983, the School administration again directed Mr.
Schussel in writing, to remove material from his locker. On this
occasion, Schussel placed a "Support NTEU" label and miscellaneous
non-union items on the clipboard. One week later, in late November or
early December, 1983 the administration issued a "Special Faculty
Bulletin" prohibiting the "posting of materials of organizations other
than the elected and exclusively recognized organization(s)." The intent
of this Bulletin admittedly was to prohibit the posting of such material
anywhere in the School, including the teachers' lounge. Apparently the
bulletin led to confusion among the teachers as to which material could
be affixed to lockers. Such confusion is understandable in view of the
practice tolerated the previous year. At almost the same time the
administration announced in early December 1983 that all lockers would
be painted during the Christmas break, and consequently all material had
to be removed from the face of the lockers.
Minutes of the December 8, 1983 Joint Labor Management Committee
meeting reveal the following:
Federal rules have for years prohibited any labor organization,
other than the exclusively recognized groups, from posting
materials except during election campaigns. Management feels that
the minutes of this JLMC should once and for all establish clearly
for all employees what the policy is regarding the placing of
materials on government-owned teacher-assigned messages/mailboxes.
And, again, Management expresses it regrets if this has caused a
problem for any employee.
After filing the charge in Case No. 1-CA-40036, approximately a month
later, in early December 1983, schussel distributed a questionnaire to
the teachers by putting it into their lockers one morning before the
start of classes. Mr. Schussel testified that he developed the
questionnaire in order to find out whether other teachers were aware of
a past practice or policy prohibiting posting material on lockers. The
following day, December 1, 1983 Schussel received a letter from Mr.
Migliaccio, ordering Schussel to "cease and desist from polling in this
school." Schussel admittedly had not informed the school administration
of his intent to distribute the questionnaire. In explanation of the
letter, Migliaccio testified that Ms. Grillo complained about the
"polling" and demanded that the school administration do something about
it. Ms. Grillo confirms that she threatened to file an unfair labor
practice charge regarding the polling. The reference in Migliaccio's
letter to "polling" apparently comes from Article 32 /5/ of the
OFT-DODDS-M collective bargaining agreement. Reliance on that Article
seems misplaced since it addresses surveys conducted by "Management" and
not, as Migliaccio stated in the letter to Schussel, by "only the OFT
representative." The above interpretation indeed is supported by the
testimony of union representative Grillo. The cited Article without
question is inapplicable to Schussel's distribution of the
questionnaire. Migliaccio however, claimed that the School "always had
a policy requiring teachers to submit "formal things" to the
administration before distributing them although this was not the reason
cited to Schussel for the "policy."
During the hearing, Migliaccio admitted that the questionnaire could
have been a sensible device to gather information on the unfair labor
practice charge. To Ms. Grillo, the questionnaire "obviously" could
have been a method to gather information on the charge. Respondent did
not show that Schussel's distribution of the questionnaire through the
lockers caused any interference with the School's operation. In fact
the evidence tends to establish that the method used by Schussel here
was a common practice followed by other teachers and organizations at
the School when distributing information.
Discussion and Conclusions
1. Whether a defective charge requires that the complaint be quashed
in this matter.
Respondent raises procedural questions which of necessity must be
considered prior to addressing the substantive issues in this matter.
Respondent contends, in essence, that no valid charge was filed and that
under Section 2423.4 of the Authority's rules and regulations since
there is no valid charge all that follows is defective. /6/
The hyper-technical arguments submitted by Respondent to support this
contention are wide of the mark. It has long been recognized in
administrative matters such as this that a charge is not a pleading.
The charge serves merely to initiate an investigation and to determine
whether a complaint in a matter should be issued. A charge has
consistently been held to be sufficient for the above purposes in
administrative proceedings if it informs the alleged violator of the
general nature of the violation charged against him to preserve the
evidence relating to the matter. Moreover, the Authority has adopted at
least in principle a rule that where a procedural defect exists
concerning the charge, a respondent must be prejudiced by the alleged
defect. See Department of the Army, Harry Diamond Laboratories,
Adelphi, Maryland, 9 FLRA 575 (1982). Here Respondent made no effort to
show prejudice, but relies merely on what it views as a technical
defect. I see no reason, based on Respondent's submission, to quash the
complaint herein because of a defective charge. To do so, in my view,
would not effectuate the purposes and policies of the Statute in this
matter.
2. Whether the "equivalent status" rule applies or whether the real
issue is one of access to the facility by an individual in nonwork areas
during nonwork hours.
Respondent maintains that it had two legitimate reasons for directing
Schussel to remove OEA materials from his locker. First, based upon
legitimate managerial concerns, no material of any type was to be posted
on teachers' mailboxes. And second, to have allowed the use of its
facilities for the posting of OEA materials would expose it to valid
unfair labor practice charges.
The initial contention of Respondent is not supported by the record.
Contrary to Respondent's insistence, the record shows at best a lax
neatness policy which it is not clear was ever applied to teachers.
Before moving to the second contention, I must agree with the General
Counsel that this case does not concern the principle of "equivalent
status" which Respondent assumed would expose it to a valid unfair labor
practice charge by the incumbent union. Respondent's reliance on Perry
Education Association v. Perry Local Educators Association, U.S. Sup.
Ct., Case No. 81-896, February 23, 1983, dealing with a public school
internal mail system is completely misplaced. /7/ There the question
involved whether the school district should provide access to
communication facilities such as access to teachers mailboxes and the
right to use the interschool mail delivery system. The question was
whether the access could be provided to the exclusive representative of
bargaining unit employees without having to provide equal access to
rival unions. /8/ Here, schussel and Gonzalez were not using the
mailboxes or lockers of others, but were using their own lockers to
disseminate information much in the same way other teachers had done in
the past. The thing that distinguishes Perry, as the General Counsel
points out in brief, is that neither Schussel nor Gonzalez was acting as
a labor organization nor were they seeking to rival the incumbent by
their actions. The equivalent status rule was designed to deal with
demands of competing labor organizations for equal access by
non-employee agents to an agency's premises and for use by those
organizations of an agency's services and facilities during
organizational campaigns. The rule was not intended to prohibit or
restrict employees on their own time from engaging in solicitation or
distribution of literature although on the agency's premises. As the
Court pointed out in Perry, fn. 11, the courts have frequently
invalidated restrictions that prohibit individual employees from
distributing union literature during nonwork hours in nonwork areas.
This is that type of case. Here Respondent made no showing that its
application of the rule to Schussel was necessary to preserve discipline
among teachers or that it was justified by any special circumstances,
including its so called neatness policy.
The question to be resolved is not one of "equivalent status" but,
whether an agency can prohibit distribution of literature on nonwork
time in a nonwork area for the reasons asserted by Respondent. That
question has been answered previously by the Authority. See, Oklahoma
City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6
FLRA 159 (1981); Internal Revenue Service, North Atlantic Service
Center, Andover, Massachusetts, 7 FLRA 596 (1982). Respondent reasons
that it would be subject to a valid unfair labor practice charge if
Schussel were allowed to post his decal and clipboard on his locker, a
practice established to have been prevalent among many of the teachers
at Naples High. A practice that prior to the 1983-84 school year was
unrestricted until the incumbent complained that Schussel was posting
rival literature on his locker. Interestingly, Respondent never sought
to prevent Schussel from carrying a shopping bag with an OEA symbol, a
practice, in my view, which was almost identical to the conduct which it
threatened to discipline him about here.
The exercise of opportunities to solicit or distribute literature is
paramount to the right conferred by section 7102 of the Statute, "to
form, join or assist any labor organization . . . . " Surely Respondent
realizes that there are ongoing efforts between labor organizations to
show that their product is better. In pursuit of these goals they often
distribute literature to facilities which are already organized by their
competitors. Their competitors no doubt complain about these efforts.
Those complaints, alone, however, are no reason to inhibit that
distribution. Here Respondent reacted to the complaints by promulgating
a broad rule prohibiting all distribution of literature in a nonwork
area without regard to whether it was done on nonwork time. Such a
broad policy undoubtedly carries an inhibiting effect on others who
might in the future wish to exercise section 7102 rights and seek ouster
of the bargaining representative. The rule as announced and practiced
by Respondent has the effect of freezing out any other union or
entrenching the incumbent by infringing on section 7102 rights of
dissident employees. A desirable result for the incumbent, but
certainly contrary to an employee right to form, join, or assist any
labor organization. In this same vein, the Authority has long
recognized that where an agency grants its employees a privileged means
of communication, such as a bulletin board for posting a variety of
non-work-related personal items and messages, the agency may not
prohibit the posting of messages and notices related to unions and
collective bargaining. Department of Labor, Office of Workers'
Compensation Programs, Branch of Special Claims, 11 FLRA 77 (1983). In
that case, the Authority held that the respondent agency unlawfully
removed from the employees' bulletin board, commonly used for personal
notices, cards, etc., a notice announcing the appointment of union
stewards.
I am in agreement with the General Counsel that Respondent's defense
is based on its apparent misreading of the "equivalent status" rule and
its preoccupation with Schussel's position with OEA. For purposes of
this case those preoccupations are fatal since it clearly establishes
that the Naples School policy was established only to suppress
Schussel's views.
Respondent portrays this case as an attempt to provide OEA or
Schussel acting as an agent for OEA, the same or equivalent services and
facilities which OFT has obtained in bargaining. The facts as shown by
the record are that Respondent has allowed its employees to post itmes
on the exterior of their lockers and also to use a bulletin board in the
teachers' lounge without restraints. Schussel, too, as an individual
employee or other dissidents have the right to use those facilities
without being subject to discriminatory restraints in their use of that
opportunity. In view of the evidence and applicable case law it is my
conclusion that Respondent violated Section 7116(a)(1) of the Statute by
maintaining and enforcing a policy, first announced to Schussel and
Gonzalez in September, 1983 and later promulgated in the "Special
Faculty Bulletin" prohibiting the posting or display, on lockers or on
anywhere else in the lounge, or the School for that matter, of OEA and
NTEU literature and/or insignia.
Since the record clearly reveals that the actual reason for the
policy was Respondent's misapplication of the "equivalent status" rule,
I also reject Respondent's alternate argument that management had
legitimate concerns about materials of any type being posted on the
teachers' mailboxes and lockers. Indeed this is or may be a legitimate
concern but, the record establishes beyond doubt that this reason was
pretextual and was not the reason Respondent asserted to Schussel as
early as September 1983.
3. Whether an individual has a right to gather information in
support of an unfair labor practice charge by reasonable means.
Respondent seemingly sees this matter as a castigatory proceeding for
Schussel, who it views as a dissident troublemaker intent on harassing
the local school administration. In so doing Respondent ignores
fundamental statutory rights afforded individuals. It has already been
found that Schussel filed an unfair labor practice charge with regard to
Respondent's threatened disciplinary action on his distribution of OEA
and NTEU literature. It is my opinion that individuals are entitled to
gather information to support charges filed with the Authority at any
stage of the proceedings. Furthermore, the gathering of such
information is not limited to conventional means. Any theory asserted
which would prevent information gathering in support of a charge would
certainly be a novel one. The only question here is whether the method
used by Schussel was a reasonable one. In view of the fact that both
the incumbent representative and administrator Migliaccio, in essence,
testified upon seeing Schussel's questionnaire which was distributed to
other teachers, that it could be construed as a reasonable means of
gathering the necessary information, dispells in my mind any inferences
to the contrary. Accordingly, it is found that Schussel employed a
traditional means of gathering information in the Naples High School and
that his placing questionnaires for teachers to respond to in support of
his unfair labor practice charge was certainly a reasonable method of
gathering evidence in support of his charge with the Authority.
Respondent raises several reasons why Schussel's distribution of the
questionnaire was improper. However, Respondent has not shown how
Schussel's distribution of the questionnaire hindered Respondent's use
of its property, the teachers mailboxes. Respondent cites a contract
provision which on its face is inapplicable to the circumstances, and a
policy of approval which, even if it was substantiated by this record,
would reasonably tend to deter an employee from filing unfair labor
practice charges and gathering information needed to support its
position. In this case Schussel could hardly have devised a more
efficient means of gathering information and caused no proven
interference with the daily functioning or discipline of the school.
Schussel dropped the questionnaire in lockers on his own time and there
is no showing that he caused teachers to use work time in responding.
Schussel did not compel or pressure teachers to respond to the
questionnaire. Indeed, as the questionnaire did not seek names or other
identifying information, confidentiality was assured to respondents and
non-participants alike. Respondent's description of locker 'drops' as
the "School mail distribution system" is no more than semantics.
Respondent's contention that once an unfair labor practice charge is
filed, only the Office of the General Counsel may conduct an
investigation of the charge lacks merit. This position ignores not only
statutory policy but, the practicalities of the situation designed to
facilitate the investigation and processing of unfair labor practice
charges (for example, Section 7131(c) provides for official time)
"consistent with the requirement of an effective and efficient
Government," as set forth in Section 7101. The gathering of information
by a charging party at any stage of a proceeding, through reasonable
means and without engaging in flagrant misconduct seemingly assists all
sides in obtaining a speedy resolution of the matter.
Respondent also contends that it was unaware of the unfair labor
practice charge at the time it ordered Schussel to "cease and desist"
distributing the questionnaire, and therefore cannot be found liable. I
do not agree. Schussel distributed the questionnaire about one month
after the filing and service of the charge in Case No. 1-CA-40036 giving
Respondent ample time to be aware that an unfair labor practice charge
existed. Respondent does not deny service of the charge, but only the
particular date alleged. Here the questionnaire was clearly related to
the unfair labor practice charge and Schussel's conduct in distributing
it was well within the bounds of protected activity. It logically
follows that Respondent's directive in these circumstances that he
"cease and desist" naturally tended to interfere with SchusselS exercise
of statutory rights, and so violated section 7116(a)(1) of the Statute.
Thus, Respondent never inquired as to the nature of the questionnaire,
but proceeded to admonish Schussel. Such action when there was a valid
charge was at its peril.
Accordingly, it is found that Respondent's conduct in directing
Schussel to cease and desist distribution of the questionnaire designed
to gather information to support an unfair labor practice charge filed
with the Authority violated section 7116(a)(1) of the Statute.
Having found that Respondent violated section 7116(a)(1) of the
Statute, it is recommended that the Authority adopt the following:
ORDER
Pursuant to 5 U.S.C. Section 7118(a)(7) and Section 2423.26 of the
Final Rules and Regulations, U.S. Fed. Reg. 3482, 3510 (1980), it is
hereby ordered that Department of Defense Dependents Schools,
Mediterranean Region, Naples American High School:
1. Cease and desist from:
(a) Maintaining or enforcing an overly broad and/or
discriminatory policy regarding the posting or displaying of
literature or insignia of any labor organization on employees'
lockers or employees' bulletin boards.
(b) Prohibiting employees from gathering information and
evidence to support an unfair labor practice charge filed with the
Federal Labor Relations Authority.
(c) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of the
rights guaranteed by the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action designed and found
necessary to effectuate the policies of the Statute:
(a) Permit William Schussel, Jesse Gonzalez and other employees
to display literature and insignia of any labor organization on
employees' lockers and employees' bulletin boards.
(b) Rescind and revoke the Special Faculty Bulletin issued in
December 1983 concerning posting of materials of organizations
other than the elected and exclusively recognized organization(s).
(c) Rescind and remove from its files the November 30, 1983
letter to William Schussel directing him to remove materials from
his locker, and any other memoranda or documentation on the
subject of Schussel's posting of union literature and insignia on
his locker.
(d) Rescind and revoke its December 6, 1983 letter to William
Schussel directing him to cease and desist from distributing a
questionnaire for the purpose of gathering information and
evidence to support an existing unfair labor practice charge.
(e) Post at its school within the Mediterranean Region copies
of the attached Notice marked "Appendix". Copies of said notice,
to be furnished by the Regional Director for Region 1 after being
signed by an authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region I in writing,
within 30 days from the date of this Order, what steps it has
taken to comply herewith.
/s/ ELI NASH, Jr.
Administrative Law Judge
Dated: March 25, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Judge's recommended Order is modified to exclude holiday and
vacation periods from the required posting period due to the nature of
teachers' work periods during the school year. See Department of
Defense Dependents Schools, Washington, D.C. and Department of Defense
Dependents Schools, Germany Region, 19 FLRA NO. 96 (1985), petition for
review filed sub nom. North Germany Area Council, Overseas Education
Association v. FLRA, NO. 85-1595 (D.C. Cir., Sept. 20, 1985).
(2) The General Counsel's unopposed Motion to Correct Transcript is
granted.
(3) This posting prompted a memorandum from Mr. Migliaccio to the
teacher involved and is Respondent's only evidence bearing on its
"neatness" policy as set forth above. Despite that warning note the
evidence shows that sign-up sheets for drama performances, etc., are
still posted in the lounge.
(4) Respondent in support of its neatness postion submitted into
evidence a faculty bulletin dated November 10, 1082 from Mr. Migliaccio
which reminded everyone that "(a)announcements, posters and similar
items must not be tacked, stapled or taped to any walls", but makes no
mention of lockers or bulletin boards.
(5) Article 32 states, in pertinent part:
Section 1.
No teacher will be required by Management to respond to any surveys
involving personnel policies, practices or working conditions without
prior approval of the Union.
(6) 5 C.F.R. Section 2423.4, "Contents of the charge; supporting
evidence and documents," states:
"(a) A charge alleging violation of 5 U.S.C. 7116 shall be submitted
on forms prescribed by the Authority and shall contain the following:
"(3) A clear and concise statement of the facts constituting the
alleged unfair labor practice charge, a statement of the section(s) and
subsection(s) of Chapter 71 of Title 5 of the United States Code alleged
to have been violated, and the date and place of occurrence of the
particular acts;
(7) Respondent obviously did not read the facts in the Perry case,
for even there the PLEA, which was not the exclusive representative of
the teachers involved was not prevented from "using the school
facilities to communicate with teachers. PLEA may post notices on
school bulletin boards; may hold meetings on school property after
hours, and may, with the approval of the building principals, make
announcements on the public address system . . . " considerable more
than which is involved in this matter.
(8) In view of the above rulings it is unnecessary to rule on the
General CounselS Motion to Strike Portions of Respondent's Brief or
Respondent's reply to that motion.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT maintain or enforce an overly broad and/or discriminatory
policy regarding the posting or display of literature and insignia of
any labor organization on employees' lockers and employees' bulletin
boards.
WE WILL NOT prohibit employees from gathering information to support
an unfair labor practice charge.
WE WILL NOT in any other manner interfere with, restrain or coerce
our employees in the exercise of the rights guaranteed by the Federal
Service Labor-Management Relations Statute.
WE WILL rescind and revoke the Special Faculty Bulletin issued in
December 1983 concerning posting of materials of organizations other
than the elected and exclusively recognized labor organization.
WE WILL rescind and revoke a November 30, 1983 letter to William
Schussel directing him to remove materials from his locker, and any
other memoranda or documentation on the subject of his posting of union
literature and a decal on his locker.
WE WILL rescind and revoke the December 6, 1983 letter to William
Schussel directing him to cease and desist from distributing a
questionnaire for the purposes of gathering information to support an
existing unfair labor practice charge.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 1,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02116 and whose telephone number is: (617) 223-0920.