[ v22 p063 ]
The decision of the Authority follows:
22 FLRA NO. 7
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2369, AFL-CIO Respondent and SOCIAL SECURITY ADMINISTRATION NEW YORK REGIONAL OFFICE Charging Party Case No. 2-CO-20025
This unfair labor practice case arose as a result of picketing by members of the American Federation of Government Employees, Local 2369, AFL - CIO, Respondent Union, in the reception area of a District Office of the Charging Party, the Social Security Administration, New York Regional Office. It was alleged that the Union called for and participated in the picketing and thereby violated section 7116(b)(7)(A) and (B) of the Federal Service Labor - Management Relations Statute (the Statute). 1
The question presented is whether, under the circumstances, the picketing interfered with agency operations within the meaning of section 7116(b)(7) of the Statute. The question of when such picketing "interferes with an agency's operations" under the Statute is one of first impression for the Authority. [ v22 p63 ]
The Administrative Law Judge found that the Union had not engaged in the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed. The case now is before the Authority because of exceptions to the Judge's Decision, and briefs, filed by the General Counsel and the Activity. The Union filed a brief in opposition to the exceptions.
As more fully set out by the Judge, the picketing occurred on August 24, 1982, in the reception area of the Social Security Administration Mid-town District Office in New York City. The office is on the ninth floor of a privately owned office building located at 1515 Broadway.
The Mid-town District Office processes claims for Social Security benefits, retirement benefits, survivors' rights and disability entitlements. Approximately 80 employees handle some 300 interviews each day. These interviews normally are conducted in the work area which is separated from the 17x7O foot reception area-waiting room by five-foot high partitions. One must pass through the reception area to enter the office. Occasionally, street people enter the reception area and are permitted to sit there. [ v22 p64 ]
On approximately August 23, the District Office assistant manager, Michael Pregon, learned that on August 24 the AFGE planned to have a mass demonstration in the Times Square area, near the Mid-town District Office. Anticipating that some of the demonstrators might attempt to enter the District Office facility on the scheduled date, Activity officials decided to put into effect certain operational changes. The record shows, however, that Activity management had no advance knowledge of any plan that picketing actually would occur at the District Office. The operational changes taken consisted of assigning all available claims representatives, including eight employees who normally process paperwork, to interview claimants so that no claimants would be kept waiting in the reception area. Also, two account clerks who are normally stationed in the reception area were moved into the main office area. By reason of these changes, no paperwork was completed on August 24.
The scheduled demonstration at Times Square by AFGE took place as planned on August 24 between 11:30 a.m. and 1:30 p.m. At about 12:30 p.m. William Nussbaum, President of AFGE Local 2369 and Regional Vice President of AFGE, National Council of Social Security Field Offices, gathered a group of approximately ten convention delegates of AFGE locals and entered the District Office. A guard on duty in the office let them in. After the group of pickets entered the reception area they turned to the left and paraded in a circle. There was no chanting by the pickets nor did they make any noise or create a disturbance. During the picketing one claimant entered the office and was escorted without incident into the rear work area, and two claimants who were leaving the work section upon completion of their business were escorted out of the office, also without incident. Other than the receptionist, no other employees were present in the reception area except for two guards mentioned below. The record also shows that one unidentified woman sat in the reception area without speaking or being spoken to throughout the picketing.
During the course of the picketing, which lasted approximately ten minutes, some employees peered over the partition while enroute to the photocopying machine or other locations; several supervisors left their desks to appear at the reception area to check on the picketing; and both security guards employed by the Activity were positioned at the reception area. Normally one guard is stationed there and the other one roams the facility. Approximately 20 to 25 claimants were being interviewed in the work area during the picketing. Under normal circumstances there would have been about ten [ v22 p65 ] claimants in the reception area waiting to be interviewed. After having circled within the reception area, and following a short discussion between Nussbaum and Pregon, the pickets departed.
The Judge found that the picketing occurred in the course of a labor-management dispute, as required to bring the picketing within the general prohibition of section 7116(b)(7) of the Statute. He then noted that the critical issue was whether the picketing constituted "interference" with the operations of the Office. He reasoned that "interference" must connote "some form of disruption or thwarting of an agency's operations." He went on to explain that in his opinion, "it is doubtful that Congress intended to outlaw picketing which did not seriously interrupt or impair governmental activities. If not, the term 'interference' loses its significance and ... freedom of expression is endangered." Slip op. at 8. The Judge concluded that, under the circumstances, the picketing did not constitute interference with the operations of the Activity within the meaning of the Statute, and therefore the Union did not commit an unfair labor practice. The Judge also stated that even if the term interference as used in the Statute could be said to include any picketing, he would conclude that the interruption or interference here was de minimis and was not an unfair labor practice. The Judge accordingly recommended that the complaint be dismissed.
In reaching this conclusion, the Judge noted that no claimants who appeared on the day of the picketing were caused to be ignored or neglected; that the pickets did not enter the work area and no attempt was made to interfere with employees' duties or to communicate with them; and that claims were processed without interruption.
As to the argument by the Activity that there was a disruption because management moved the claimants to the work area and out of the reception room before the pickets arrived, and that this prevented a disturbance which would have otherwise taken place, the Judge found that such argument was conjectural. He also found that anticipatory action by management does not serve as a basis for characterizing subsequent picketing as unlawful. [ v22 p66 ]
A. The Activity
The Activity excepts to the Judge's conclusion that the picketing did not interfere with its operations within the meaning of the Statute, asserting that the Judge improperly created a de minimis interference standard which is not permitted by the Statute. The Activity also argues that management's precautionary measures resulted in a one-day delay in processing claims because all available employees' duties were switched to interviewing, and that there was substantial disruption caused by the Union's picketing. The Activity contends that the Judge "seemed to down play the degree of actual disruption to the work flow by the admittedly well ordered and peaceful picketing, but he completely over-looked the volatile potential inherent in the situation and the potential injury to the agency's fragile clientele that could have and foreseeably would have occurred had not the office managers taken precautionary measures."
B. The General Counsel
The General Counsel states that under the Statute picketing is prohibited only if it actually interferes with an agency's operations, as distinguished from picketing which only reasonably threatens to cause such interference. However, the General Counsel argues that the picketing in this case did constitute "interference" within the meaning of the Statute because the picketing occurred in an area open only to the public with official business to transact with the Agency and therefore is "inherently disruptive" of the Agency's normal operating procedure. The General Counsel also argues that the inherent and actual interference caused by the picketing would have been greater if the Activity had not taken precautionary steps.
C. Respondent Union's Opposition to Exceptions
The Union argues that for picketing to be an unfair labor practice, any interference caused by the picketing must be more than de minimis. It notes that the legislative history of the Statute demonstrates the intent of Congress to broaden a union's right to picket an agency as evidenced by the change from the Senate version, which would have made [ v22 p67 ] any picketing an unfair labor practice if it interfered with or threatened to interfere with agency operations. The Union points out that the final language of section 7116(b)(7) prohibits picketing only if it actually "interferes" with an agency's operations.
As noted, section 7116(b)(7) of the Statute makes picketing of an agency in a labor-management dispute an unfair labor practice if it "interferes with an agency's operations." An examination of the legislative history of section 7116(b)(7) shows that Congress intended to prohibit only picketing that actually interferes with an agency's operations; indeed, Congress chose not to enact language passed by the Senate which would have prohibited picketing that "interferes or reasonably threatens to interfere with an agency's operations". 2 Instead, Congress adopted the language of the House substitute bill, which did not contain the "reasonably threatens to interfere" standard.
In enacting section 7116(b)(7) of the Statute, Congress took into account the language of Executive Order 11491, as amended, and administrative and court interpretations of the ban on picketing contained in the Order. For example, during consideration of the House substitute bill, Representative Clay noted that in NTEU v. Fasser, 428 F. Supp. 295 (D.D.C. 1976), the district court had held that the absolute ban on picketing under section 19(b)(4) of the Order was overbroad [ v22 p68 ] and violated the First Amendment. 3 He then stated that in view of the constitutional principles involved, the language in section 7116(b)(7) was adopted. Additionally, Representative Ford stated, during deliberations on the bill, that section 7116(b)(7) "contains language adopted in lieu of the Federal Labor Relations Council policy statement in this area. 4 The Council's statement, issued in response to the decision in NTEU v. Fasser, had found that picketing under the Executive Order was an unfair labor practice if it actually interfered or reasonably threatened to interfere with agency operations. Statement on Major Policy Issue, FLRC No. 76P-4, 5 FLRC 991 (1977). On the Senate side, it was clear that the Senate's language on picketing was intended to be a continuation of the Executive Order prohibition on picketing that interfered or reasonably threatened to interfere with agency operations. 5 As we have noted, congress did not enact that language.
In sum, this review of the language and legislative history of section 7116(b)(7) makes clear that Congress rejected the "reasonably threatens to interfere" part of the [ v22 p69 ] standard under the Executive Order and instead required actual "interference" for picketing to be an unfair labor practice under the Statute. 6
The background set forth above dispels any notion that picketing in a public waiting room of Government premises must always be considered unlawful "interference" with agency operations. The mere appearance of pickets, without more, would not in all circumstances produce the kind of disturbance justifying a total ban on such picketing. As the court said in NTEU v. Fasser, "surely not all Government activity, in all Government offices, requires (a total picketing ban). Picketing that is strictly informational, and limited in place and focus, does not in all situations create the probability of interference with Government functions sufficient to justify (such a total limitation)." 428 F. Supp. at 299 (citation omitted).
Since picketing is an unfair labor practice only if it interferes with an agency's operations, it must be determined in each case whether the picketing actually caused "interference." The focus of inquiry, as noted in our discussion above, must be to determine whether the inconvenience or disturbance to particular agency operations resulting from the picketing constitutes an unfair labor practice. The picketing in each case must be considered in terms of such factors as the Government interest involved, the sensitivity of the function and its purpose, the location of the picketed operation, the duration of the picketing, and the number and conduct of the pickets.
In each case, the Government interest to be protected is related to the mission of the agency involved. Thus, an operation of high sensitivity, such as one involving national security or with critical functions related to health or safety, could justify a relatively high degree of restraint [ v22 p70 ] of even First Amendment-related activities such as picketing. In such cases, even a relatively brief and minor disruption could in some circumstances justify a finding of unlawful interference. On the other hand, in an operation involving a relatively lower degree of sensitivity, the same picketing activities might not be found to be unlawful interference.
The purpose of the Activity's operation in this case is to process various Social Security claims. This includes both interviews and processing paperwork. Due to the anticipation of picketing, all available employees were used to conduct interviews that day so that as few clients as possible would be kept waiting in the reception room. As a result of having everyone available to do interviews, no paperwork was done on the day of the picketing. Although both changing the work assignments and increasing interviews while decreasing paper work for that one day represented adjustments in the Activity's operation, it has not been shown that these changes were necessary to the continued functioning of the Activity's operations (the Authority of course makes no suggestion that the action taken in anticipation of the picketing by management was inappropriate), or that the result of increased interviews and decreased paperwork had any appreciable negative impact on the accomplishment of the mission of the picketed operation. While the importance of the timely processing of Social Security claims is self-evident, the record simply does not support a conclusion that the picketing appreciably delayed processing of claims. As suggested above, however, even the slight inconvenience caused by this picketing might be "interference" with a Government operation of a different nature. Thus, for example, a slight change in operating procedures could well be far more than a "slight inconvenience" at a national security facility or an operation dealing directly with health or safety matters.
The number and conduct of the pickets and the duration of their picketing in this case are also factors which demonstrate that the picketing did not interfere with Agency operations. Approximately ten pickets demonstrated silently in a 17 x 70 foot public waiting room of a Social Security District Office for ten minutes, causing no disturbance. Some employees peered over a partition as they passed, several supervisors checked on the picketing and one security [ v22 p71 ] guard who normally would not be in the reception area joined the one who was routinely assigned there for the ten minutes during which the picketing occurred. Thus, the number and conduct of the pickets, as well as the location of the picketing in a public area, accessible even to individuals who have no business with the agency, could not be said to have caused interference with Activity operations in any real sense.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the judge made at the hearing and finds that no prejudicial error was committed, and thus affirms the rulings. The Authority has considered the Judge's Decision and the entire record, and adopts the Judge's findings, conclusions and recommended Order, as explained above.
In all the circumstances, the Authority concludes that the picketing in this case did not "interfere" with agency operations within the meaning of section 7116 (b)(7)(A) of the Statute. Therefore, the complaint shall be dismissed.
The complaint in Case No. 2-CO-20025 is dismissed.
Issued, Washington, D.C., June 6, 1986. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY
[ v22 p72 ]
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2369, AFL-CIO Respondent and SOCIAL SECURITY ADMINISTRATION NEW YORK REGIONAL OFFICE Charging Party Case No.: 2-CO-20025 Gay Snyder, Esq. For the Respondent Lee Mingledorff, Esq. For the General Counsel Daniel H. Green, Esq. For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge
Pursuant to a Complaint and Notice of Hearing issued on May 31, 1983 by the Acting Regional Director for the Federal Labor Relations Authority, New York, New York Region, a hearing was held before the undersigned on October 20, 1983 at New York, NY.
This proceeding arose under the Federal Service Labor - Management Relations Statute (herein called the Statute). It is based on a first amended charge filed on February 23, 1983 by Social Security Administration, New York Regional Office (herein called Social Security) against American Federation of Government Employees, Local 2369, AFL - CIO (herein called Respondent or the Union) . [ v22 p73 ]
The Complaint herein alleged, in substance, that on or about August 24, 1982 Respondent called for, and participated in, the picketing of the Social Security's reception area at 1515 Broadway, New York, NY and thereby interfered with its operations--all in violation of Sections 7116(b)(7)(A) and (B) of the Statute.
Respondent filed its Answer dated June 22, 1983 wherein it denied the foregoing allegations as well as the commission of any unfair labor practices.
All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered.
Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing , I make the following findings and conclusions:
1. Social Security maintains a Mid-town District office at 1515 Broadway, New York, NY, a privately-owned office building. The said office, which is located on the ninth floor, processes claims for Social Security benefits, retirement benefits, survivors' rights, and disability entitlements. As a general rule, about 300 people may be interviewed in a day, with about 40% of the interviews conducted between 11:00 a.m. and 2:00 p.m. Lunch hour for half the staff starts at 12:00 p.m., while the remaining employees go to lunch at 1:00 p.m.
2. At the relevant time herein about 80 people were employed at the aforesaid District office. The employees were, for the most part, classified as claims representatives, service representatives, clericals, data review technicians, operations supervisors, data transcribers, mail clerks, and field representatives.
3. The facility on the ninth floor 8 has a reception area which is at the entrance to the office. It is rectangular in shape and separated from the main work area by partitions which are five feet high. The reception area is approximately 70 feet by 17 feet. The receptionist's desk is opposite, and about eight feet from the doorway entrance to the [ v22 p74 ] District office. While the interviews are conducted in the work area--behind the partitions--the reception area serves as a waiting place for those who are to be interviewed. In order to enter and leave the office one must pass through the reception area. Occasionally, street people enter this area and are permitted to sit there. There is an access area, about four and a half feet wide, between the partition on one side of the reception area and the partition on the other side. This leads to the work area and the office of the operations supervisor. 9
4. At all relevant times herein William Nussbaum was President of Local 2369, and regional vice-president of AFGE, National Council of Social Security Field Offices. Together with other Local AFGE officials, as well as employees of other agencies, Nussbaum decided in and about July, 1982 to stage a demonstration in New York City on August 24, 1982. This action was to be taken in conjunction with the AFGE national convention in the Times Square section of New York City to protest Social Security's alleged "union busting" tactics and also "Reaganomics".
5. Approximately one day before the scheduled demonstration several fliers announcing the intended event came to the attention of Michael Pregon, Assistant Director Manager of the Social Security office at 1515 Broadway, New York City. Anticipating that the demonstrators might attempt to enter the District office on the scheduled date, Pregon conferred with other Social Security officials and it was decided to put into effect certain operational changes. Thus on August 24 Pregon assigned all available claims representatives, including eight employees who usually process paperwork, to interview claimants. As a result of this change, it was contemplated that no claimants would be kept waiting in the reception area. Further, two account clerks who were normally stationed in the reception area to handle claimants were moved into the main office area. By reason of these changes no paperwork was completed on August 24. Claims filed before that date were delayed since employees were instructed to cease work on such claims and take care of individuals who might appear on August 24.
6. The scheduled demonstration at Times Square by AFGE took place between 11:30 a.m. and 1:30 p.m. on August 24. At about 12:30 p.m. Nussbaum gathered a group of approximately ten convention delegates of AFGE Locals and they entered the District office on the ninth floor. A guard on duty in the office let them in. Two of the individuals carried signs which read "SSA busts unions" and "Reagan won't bust us". Some of the other individuals wore small buttons bearing the AFGE name and legend. Nussbaum testified the union was engaged in a picketing action to protest Social Security's union busting attack against Local 3369 and [ v22 p75 ] certain of the latter's officers; that the management officials of the District office were involved in disciplinary action being taken against officers of Local 3369.
7. After the group of pickets entered the reception area they turned to the left and paraded in a circle within said area. 10 Pregon saw them through the access area and came out to the reception room. He told Nussbaum, who led the pickets, that he had no business being there; that it was government property. The union official replied he was on annual leave and had a right to be there. Record facts reflect there was no chanting by the pickets nor did the latter make any noise or create a disturbance. During the picketing one claimant entered the office and said person was escorted into the rear work area. Moreover, two claimants who were leaving the work section upon completion of their business were escorted out of the office while the pickets were there. Nussbaum testified that, other than the receptionist, no other employees were present in the reception room. He further testified that one woman sat there during the picketing, but she never spoke or was spoken to by anybody.
8. During the course of the picketing, which lasted about 10 minutes, some employees peered over the partition while en route to the photocopying machine or other locations. Several operations supervisors left their desks to appear at the reception area and check on the picketing. Two guards are usually employed by the District office. One is stationed in the reception area and the other roams the office. When the picketing occurred management had both guards positioned at the reception area. Further, two policemen approached Edward Lacey, operations officer, and asked whether he wanted the pickets removed. Lacey stated he wouldn't make that decision, that management was endeavoring to minimize the situation.
9. About 20-25 claimants were being interviewed on August 24 at the work area behind the partitions while the pickets were in the reception area. All of these claimants came to the District office before the pickets arrived. Under normal circumstances there would have been about 10 claimants in the reception area waiting to be interviewed.
10. After having circled within the reception area, and following the short discussion between Nussbaum and Pregon, the pickets departed by exiting at the door to the office. They did not return.
11. An article appeared in "The Chief," a Civil Employees Weekly, on September 3, 1982 and also in "The Government Standard", in the September, [ v22 p76 ] 1982 issue re the concerns of, and protests by, Local 3369. These articles revealed the objection by the union to Social Security's attempts to discipline several officials of Local 3369 by reason of their taking leave without management's approval of official time therefor. Further, one article reflects that Social Security planned to cut off the salary of the president of Local 3369 as of June 18. As indicated in the article of September 3, a dispute existed over the amount of time union officials were entitled to take under a new national contract.
It is asserted by the General Counsel that the picketing of Social Security of Social Security's District office in the reception area, at 1515 Broadway, New York City, on August 24, 1982 was violative of Section 7116(b)(7)(A) and (B) of the Statute. In furtherance of this assertion it is contended that, as required by that statutory language, the picketing within the office interfered with the activity's operations.
In denying that it violated the Statute 11 as alleged. Respondent makes two principal arguments: (1) no labor-management dispute existed between the parties so as to outlaw the picketing under 7116(b)(7); (2) there was no interference with the operation of Social Security's District office within the meaning of the Statute.
In seeking to determine whether a labor-management dispute existed during the course of picketing, it is noted that the Federal Service Labor - Management Relations Statute does not define the term "labor dispute." Contrariwise, in the private sector a definition thereof is set forth as follows: 12
The term "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, [ v22 p77 ] regardless of whether the disputants stand in the proximate relation of employer and employee. 13
While no case is presented in the public sector delineating types of controversies which may be deemed to constitute a "labor dispute," the courts have spoken in that regard when confronted with disputes in the private sector. Thus, in N.L.R.B. v. Sands Mfg. Co., CCA 6, 1938, 96 F2d. 721, affirmed in 306 U.S. 332, it was held that such a dispute is present when a controversy exists between employers and employees over seniority rights. Further, when picketing took place at a construction site to publicize the fact that an electrical sub-contractor did not conform to fringe benefits, it was held that this constituted a "labor dispute" Pokigo v. Local No. 719 IBEW (1965), 213 A 2d. 689. Finally, even though the definition set forth in the National Labor Relations Act of a "labor dispute" was not considered by the courts to be a jurisdictional requirement in boycott cases, it was determined that the term has a broad connotation. Thus, in Teamsters Local 812 v. NLRB, 105 LRRM 2659, enforcing 243 NLRB No. 126, the U.S. Court of Appeals, District of Columbia Circuit, stated as follows:
...Congress explicitly stated that labor disputes are not limited to controversies in which the "disputants stand in the proximate relations of employer and employee" ... and the phrase "any controversy concerning terms and conditions, terms, tenure or conditions of employment" is general enough to include a situation in which a union exerts pressure on businesses to preserve the economic foundation of its members' livelihoods. 11
Applying the rationale expressed in the cases cited, supra, I am persuaded that the picketing herein occurred in the course of a labor-management dispute. The September 3, 1982 flier (The Chief - Leader) and the article in the Government Standard, September, 1982 both attest to a controversy which falls within the framework of a labor dispute under Section 7116(b)(7)(A) of the Statute. They indicate concern over a protest against Social Security's proposals to suspend three officials of AFGE Local 3369 and to cut off the salary of the president of Local 3369 as of June 18, 1982. The picketing at Times Square in New York City on August 24 was undertaken to protest the foregoing action by Social Security against local union officials. In extending the picketing to the District office on the ninth floor at 1515 Broadway, the union's controversy with management was not altered. While the picket signs in the reception area were not so self-explanatory, the record reflects that [ v22 p78 ] the basic protest still remained the same. As stated in "The Chief," which appeared under date of September 3, 1982, there was a dispute between management and the union re the amount of official time officers of the labor organization could take under the national contract. In this context I am satisfied that the picketing was designed to put pressure on management to rescind or cancel any action against the union officials which affected their status or livelihood, and to publicize its positions re the official time controversy. Accordingly, I conclude that a labor-management dispute, within the meaning of Section 7116(b)(7)(A), existed at the time of the picketing on August 24.
The critical issue posed herein is whether the picketing on August 24 at the Social Security reception area, Mid-town office, constituted "interference" with the operations of said office. A resolution of this question turns on (a) what is deemed interference under 7116(b)(A)(7); (b) whether the resultant effect of the picketing may be described as interfering with the operations of the Social Security office on the ninth floor at 1515 Broadway, New York City.
The case at bar, under the circumstances heretofore set forth, is one of first impression in the public sector. Very little authoritative declarations are available to serve as a predicate for a determination of the aforesaid issue. Under Executive Order 11491, as amended, it was provided in Section 19(b)(4) that picketing was banned when it occurred in connection with a labor management dispute. The prohibition was seemingly absolute. However, despite such broad restriction of picketing by the Executive Order, the U.S. District Court, District of Columbia, in N.L.R.B. v. Fasser, 428 F. Supp. 295 (1976) did not accept such an absolute ban on picketing. It concluded that a Decision and order of the Assistant Secretary of Labor for Labor - Management Relations which adopted such a broad prohibition of picketing violated the First Amendment. The court recognized, however, that picketing of a government facility could be disruptive and injure the government so as to be justifiably banned. Without such disruption, the Docket Court observed, the prohibition of picketing would unduly intrude upon free expression.
In passing the Civil Service Reform Act of 1978, Congress saw fit to change the language which, under Executive Order 11491, as amended, outlawed picketing per se. Congressman Ford stated in this regard as follows:
...The House rejected the FLRC major policy statement on picketing and provided that only picketing which has in fact interfered with an agency's operations may be considered an unfair labor practice. There is, in other words, no "prior restraint" against proposed picketing which the agency, however reasonably, believes will interfere with its operations. Picketing is a well-recognized long-established first amendment right. This fact must be kept in mind in assessing whether picketing [ v22 p79 ] has in fact "interfered" with an agency's operations. For example, embarrassment to the agency obviously does not constitute interference. (124 Cong. Rec. H. 13608).
It seems apparent that, in enacting the present Statute, Congress was concerned about protecting freedom of speech or expression. Picketing, which may be informational in nature, was not forbidden. The restraint imposed upon picketing was one of non-interference with operational activities of the government. While no precedent appears which will shed light on the interpretation of the term "interference", I am persuaded that it connotes some form of disruption or thwarting of an agency's operations. It may well be argued that an entry upon the premises by any person at any time during working hours is properly deemed to interfere with a host's activities. To the extent that the latter is diverted for however short a time, or stops to scan a picket, one might conclude that interference with work has occurred. Thus the appearance of a picket could, under such a view, be deemed to have affected the operations of an agency and hence be a violation of 7116(b)(7)(A) of the Statute. In my opinion it is doubtful that Congress intended to outlaw picketing which did not seriously interrupt or impair governmental activities. If not, the term "interference" loses its significance and once again freedom of expression is endangered.
Applying this interpretation of the phrase. "... if such picketing interferes with an agency's operations", to the case at hand. I am satisfied that the picketing on August 24 at the Social Security office (Mid-town District) did not constitute prohibited interference. Record facts disclose that no claimants who appeared at the office on that date were ignored or neglected by virtue of the picketing. Further, the pickets did not enter the work area occupied by the claims representative, service agents, or other employees, and no attempt was made to interfere with their duties or communicate with them. As confirmed by Social Security's supervisors, claims were processed without interruption. It is contended that, in effect, there was a disruption since management moved the claimants to the work area before the pickets arrived. Social Security argues this move prevented a disturbance which would have otherwise taken place. Apart from the fact that this is conjectural, such anticipated action by management does not serve as a basis for characterizing subsequent picketing by the union as unlawful. The conduct of the pickets must be viewed at the time of the picketing and under the circumstances then prevailing. Assigning all employees to interview claimants on August 24 before the picketing began may have delayed processing of claims filed theretofore. However, the decision to do so did not result from the picketing, and any delay thereof was occasioned by management's election in this regard.
It is true that momentary cessation of work may have occurred by reason of employees in the work area having peered over the partition to view the pickets. There is no showing, however, that such pauses were more than brief stares at those in the reception area, and the record [ v22 p80 ] reflects some of the employees stopped to view the picketing en route to the copying machines. Likewise, supervisors Perrotte and Lacey made an appearance in the reception room during the course of the picketing. While it is argued that by so doing the officials were diverted from their tasks, I do not view such a diversion as hampering the activity's operations. In much the same view do I construe the alleged impact upon the work as occasioned by Supervisor Lacey's stationing two guards in the reception area, as well as moving an additional supervisor near the exit door to the office. While both moves may have been inconvenienced management somewhat, I do not conclude they disrupted operations.
Accordingly, I conclude that Respondent's picketing in the reception area of Social Security's Mid-town District office on August 24, 1982 did not constitute interference 14 with the operation of Social Security within the meaning of Section 7116(b)(7)(A) of the Statute, and hence further conclude Respondent Union did not thereby commit an unfair labor practice.
Having concluded for the reasons set forth hereinabove that Respondent did not violate the Statute as alleged, it is recommended that the Authority issue the following:
The Complaint in Case No. 2-CO-20025 be, and the same hereby is, DISMISSED.
WILLIAM NAIMARK Administrative Law Judge Dated: May 1, 1984 Washington, D.C.
Footnote 1 Section 7116(b)(7) provides: 7116. Unfair labor practices (b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization-- (7)(A) to call, or participate in, a strike; work stoppage, or slowdown , or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or (B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity(.) Nothing in paragraph (7) of this subsection shall result in any informational picketing which does not interfere with an agency's operations being considered as an unfair labor practice.
Footnote 2 S. 2640, 95th Cong. 2d Sess. 196 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 582 (1979). See also S. Rep. No. 95-969, 95th Cong. 2d Sess. 106 (1978), reprinted in Legislative History at 766, for discussion of section 7216(b)(4) of S. 2640.
Footnote 3 124 Cong. Rec. 29,188 (1978), reprinted in Legislative History at 933. Section 19(b)(4) of the Order provided: Sec. 19. Unfair labor practices (b) A labor organization shall not-- (4) call or engage in a strike, work stoppage, or slowdown; picket an agency in a labor-management dispute; or condone any such activity by failing to take affirmative action to prevent or stop it(.)
Footnote 4 124 Cong. Rec. 29,200 (1978), reprinted in Legislative History at 957.
Footnote 5 In addition to the Senate report cited in note 2, above, see, for example, the statements of Congressman Collins at 124 Cong. Rec. 29,174 and 29,189, reprinted in Legislative History at 907 and 935, respectively.
Footnote 6 The Authority, unlike the Judge, does not place reliance on Representative Ford's statement made after enactment of the Statute. "It is well-settled that courts construing statutory language should give little weight to post-enactment statements by members of Congress." AFGE, Locals 225, 1504 and 3723 v. FLRA, 712 F.2d 640, 647 (D.C. Cir. 1983) (citations omitted).
Footnote 7 Factual findings are based, in part, upon a Stipulation of Facts which was agreed to by the parties and read into the record.
Footnote 8 Social Security also utilizes space on the eighth floor as a training center, and the mail room is located thereat. One individual is employed on that floor.
Footnote 9 The layout of the reception and work areas can be clearly seen in the diagrams (G.C. Exhibits 3 and 9) as well as in the six photographs. (G.C. Exhibit 5) .
Footnote 10 There is a conflict in testimony as to whether the pickets paraded around the receptionist's desk. No resolution is made in that regard since I conclude it would not result in a material finding of fact.
Footnote 11 The applicable section of the Statute, Section 7116(b)(7)(A) provides as follows, 7116(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization - "(7)(A) to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations."
Footnote 12 Section 2(g) of the National Labor Relations Act, 29 U.S.C. 152(9).
Footnote 13 This definition parallels the one set forth in the Norris-LaGuardia Act of 1932, Section 113(C).
Footnote 14 Assuming arguendo, the term "interference" as used in the Statute could be said to embrace any picketing, I would conclude that such interruption or interference was, in this instance, de minimis and not violative of 7116(b)(7)(A).