29:1085(79)CA - Air Force, 18th Combat Support Wing, Kadena Air Base, Okinawa, Japan and Overseas Education Association, Pacific Region -- 1987 FLRAdec CA
[ v29 p1085 ]
The decision of the Authority follows:
29 FLRA No. 79 DEPARTMENT OF THE AIR FORCE 18TH COMBAT SUPPORT WING KADENA AIR BASE OKINAWA, JAPAN Respondent and OVERSEAS EDUCATION ASSOCIATION PACIFIC REGION Charging Party Case No. 98-CA-60359
The Administrative Law Judge issued the attached Decision in this case finding that the Respondent had interfered with the protected rights of Department of Defense Dependents Schools (DODDS) employees in violation of section 7116(a)(1) of the Federal Service Labor - Management Relations Statute (the Statute) by denying a DODDS employee permission to distribute, in a non-work area, handbills concerning matters affecting unit employees' terms and conditions of employment. The Judge recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's Decision, and the General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, 1 and recommended Order. [PAGE]
The Respondent argued both before the Judge and in its exceptions that section 7102 of the Statute does not protect the right of employees to publicize a labor dispute by distributing handbills at the location of a secondary employer. It based its argument on the absence of any language in the statute concerning "secondary activity" for which a body of law exists in the private sector. Further, the Respondent contends that should the Authority determine that such a right does exist, a determination as to whether unlawful conduct occurred in this case must be made based on the application of existing private sector case law.
While not addressing these issues specifically, the Judge's conclusions make it clear that he viewed the application of private sector "secondary activity" analysis to be inappropriate to the facts of this case. He viewed the Union's right to handbill and thereby publicize matters affecting unit employees' terms and conditions of employment as emanating from section 7102 of the Statute. We agree with the Judge that the application of private sector "secondary activity" analysis and related private sector case law to the facts of this case is inappropriate. See Department of the Air Force, 3rd combat Support Group, Clark Air Base, Republic of the Philippines, 29 FLRA No. 77 (1987).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Department of the Air Force, 18th Combat Support Wing, Kadena Air Base, Okinawa, Japan shall:
1. Cease and desist from:
(a) Interfering with the rights of Department of Defense Dependents Schools (DODDS) employees to engage in activity protected by the Federal Service Labor - Management [ v29 p2 ] Relations Statute by refusing to allow the Overseas Education Association, the exclusive representative of DODDS employees, to distribute at the commissary handbills related to their terms and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing any employee of DODDS in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at Air Force facilities at Kadena Air Base 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 the Commander of Kadena Air Base and shall be posted and maintained for 60 consecutive days thereafter, 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.
(b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 23, 1987.
Jerry L. Calhoun, Calhoun
Henry B. Frazier III, Member
Jean McKee, Member
LABOR RELATIONS AUTHORITY [ v29 p3 ]
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with the rights of Department of Defense Dependents Schools (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by refusing to allow the Overseas Education Association, the exclusive representative of DODDS employees, to distribute at the commissary handbills related to their terms and conditions of employment.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce DODDS employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
____________________________ (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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000. [PAGE]
DEPARTMENT OF THE AIR FORCE, 18TH COMBAT SUPPORT WING, KADENA AIR BASE, OKINAWA, JAPAN Respondent and OVERSEAS EDUCATION ASSOCIATION, PACIFIC REGION Charging Party Case No. 98-CA-60359 Lt. Col. James B. Frampton and Major Steven E. Sherwood, on the brief For the Respondent Ann Burst, Esq. For the Charging Party Stefanie Arthur, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judges
Statement of the Case
This case arose 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. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein sometimes referred to as OEA or the Union) against the captioned Respondent, the General Counsel of the Authority, by the Regional Director for Region IX, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute [PAGE] by refusing to allow the Union to engage in handbilling at Respondent's base commissary.
A hearing on the Complaint was conducted at Kadena Air Base, Okinawa at which all parties were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the Overseas Education Association has been the exclusive collective bargaining representative of various employees of the Department of Defense Dependents Schools (herein DODDS) which is a component of the Department of Defense. DODDS operates schools for children of American military and civilian personnel of the Department of Defense in various countries throughout the world outside the United States including five schools on Kadena Air Base Okinawa. 2 Kadena Air Base is under the control of the United States Air Force, a military department within the Department of Defense, and is considered a "closed base" with guarded gates and does not permit open access to the general public. However, DODDS' employees and their dependents have the freedom to fully move about the base and utilize the various facilities including the base commissary, chapels, theaters and other recreation opportunities.
OEA also has national consultation rights with the Department of Defense (hereinafter DOD). OEA was aware of proposals by DOD to reduce the budget of DODDS by approximately 6 percent when it became apparent around January 1986 that an additional 4.9 percent decrease in DODDS' budget would occur as a result of the impact of the then recently passed Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 9-177, Title 11, 99 Stat. 1037 (1985), commonly known as the Gramm-Rudman-Hollings Act (herein Gramm - Rudman). Pursuant to its national consultation rights OEA made various recommendations to DOD in February 1986 as to where budget cuts should take place. Around this same [ v29 p2 ] time OEA requested negotiations with DODDS on any program changes which would impact on unit employees and submitted its proposals on the matter to DODDS. In March 1986 OEA was notified by DODDS of its decisions on how the budget cuts would impact on specific DODDS' programs. OEA submitted additional negotiation proposals regarding the budget to DODDS in April 1986.
Meanwhile, in addition to OEA's efforts with DOD and DODDS, OEA embarked on a publicity campaign to inform parents of children its members taught of the changes in educational programs which had been implemented or proposed to be implemented in an effort to solicit the concern and support of parents to oppose the budget cuts. OEA suggested to its subordinate organizations at regional and local levels that handbills in furtherance of its aims be distributed.
In the Pacific Region the local union for Okinawa is the American Educators' Association - Okinawa (herein AEAO or also the Union). Around late February 1986 AEAO members, as a form of protest to the budget cuts, began filing grievances with DODDS on its failure to provide substitute teachers during the absence of specialty teachers, a recently implemented result of DODDS' budget reduction. Further, on April 27, 1986 AEAO President Sarah Nowlin, who was also a teacher at Kadena Air Base, sent the following letter Kadena Air Base Commander Colonel Michael P. Lazorchak. 3
"The American Educators' Association -Okinawa is vitally concerned about the implications of the Gramm-Rudman-Hollings cutbacks and the effects these cutbacks will have on the education of children in DODDS schools. It is to this end that we wish to inform the parents of DODDS' students of the ramifications of this bill.
"We are seeking permission to hand out the enclosed leaflets to parents of our students. In order to reach as many parents as possible, we are requesting permission to distribute these flyers at the (commissary) on . . ., Kadena Air Base, . . . , on - Saturday, 3 May, or Saturday, 17 May. [ v29 p3 ]
"Thank you for your time and consideration of this matter. Please contact me . . . for verbal confirmation if permission is granted for 3 May 1986."
Attached to the letter, which was written on stationery which had its caption "American Educators' Association -Okinawa" and a notation at the bottom: "Affiliated with the Overseas Education Association and National Education Association," was the following leaflet entitled "Teachers to Parent:
"Teachers and parents share a mutual concern for providing a quality education for children. The budget of the Department of Defense Dependents Schools is being cut. It is being cut in such a way that teachers feel the quality of your child's education will be affected.
"LARGER CLASS SIZES
"DODDS is planning to replace only two of every three teachers who leave the system. When teaching vacancies aren't filled, class sizes will increase. How many students are in your child's class? Thirty? If five more students have to be added, that will decrease the limited time the teacher can spend with your child by at least 15%.
"In the United States the number of students enrolled per teacher employed averaged about 18 students for each teacher. How will that number compare with the average in DODDS next year? It's an important question when judging the quality of education your child will receive.
"NO RESOURCE TEACHERS
"DODDS is considering eliminating resource teaching positions at the elementary school level. Children would not have special teachers for art, music, physical education and reading. Schools in the United States have resource teachers. Shouldn't DODDS too? [ v29 p4 ]
Only 'essential supplies' are being ordered by DODDS administrators. What does 'essential' mean in your child's school? Will he/she have the workbooks and other materials that are needed now and next year?
"LIMITED EXTRACURRICULAR ACTIVITIES
DODDS has proposed reducing the funding for extracurricular activities by 50% in SY 86-87. Your child may not have the opportunity to learn and grow through participation in sports, music, and other enrichment activities.
"TEACHERS ARE CONCERNED
"The AEAO believes that parents and teachers working together can bring about changes to improve the quality of education.
"Let your voice be heard!
"Dr. Beth Stephens, DODDS Dir. 2461 Eisenhower Avenue Alexandria, VA 22331-1100
"Your Elected Representatives
"The Honorable House Office Building Washington, D.C. 20515 "Senator Senate Office Building Washington, D.C. 20510
"Overseas Education Association/NEA We teach the children." [ v29 p5 ]
By letter of May 1, 1986 Colonel Lazorchak denied the request, stating:
"I have considered your request of 27 April, 1986 to distribute leaflets concerning budget cuts in DOD Dependents Schools. I understand your concerns in this matter, but I cannot approve your request. Kadena is a closed military installation located in a foreign country. It is not a political forum. I cannot approve any public political activities on this base."
Colonel Dennis Kansala, Staff Judge Advocate at Kadena Air Base, testified that he gave guidance to Colonel Lazorchak regarding the above response. 4 Colonel Kansala testified Respondent rejected the request to distribute the leaflet essentially since it considered the leaflet to be political in nature and it was a general Air Force policy to maintain an apolitical posture in such matters. However, there are no Air Force regulations relating to the distribution of such materials by civilians at Air Force facilities in general or Kadena Air Base in particular which Respondent relied on in rejecting the Union's request and no relevant DOD regulations were claimed to exist. Colonel Kansala testified he was aware DODDS was making some budget cuts but was not aware of any dispute between AEAO and DODDS. Indeed, Kansala testified he was unaware that AEAO was a labor organization. However, Colonel Kansala was not the liaison person between DODDS and the base and, as stated above, Colonel Lazorchak did not testify in these proceedings. However, the record reveals Colonel Lazorchak was present at a teacher's workshop sponsored by DODDS and AEAO around March 7, 1986, when AEAO was openly referred to as "the Union."
The record also reveals that around June 1986 two leaflets were distributed on Kadena Air Base, one entitled "Petition to Hanoi" an effort to account for U.S. servicemen missing in action, and a religious flyer. However, the record discloses no evidence that Respondent's permission to distribute the leaflets was ever requested or granted. [ v29 p6 ]
Discussion and Conclusions
The General Counsel contends that the union's right to handbill is conduct protected under section 7102 of the Statute and accordingly, Respondent's interference with such activity violated section 7116(a) (1) of the Statute. 5
Respondent denies any violation of the Statute arguing that the literature the Union desired to distribute did not identify the existence of a labor dispute and sought only political action on the part of recipients, inappropriate conduct for a military base and therefore outside of Statutory protection. Respondent also contends the Union, in any event, had no bargaining relationship with Respondent and therefore had no right to distribute material on the premises of the "neutral" Respondent. Using National Labor Relations Act law analogously, Respondent further argues that it is a "secondary" employer and the Union's right to publicize its dispute should be governed by case law developed under the National Labor Relations Act regarding secondary employers and common situs picketing.
To begin, I find the literature the Union sought to distribute announced both a dispute the Union was having with DODDS and concerns over the congressional Gramm - Rudman cuts on DODDS' budget. 6 The literature directly concerning DODDS indicated the Union's displeasure with DODDS' priorities in assigning areas of program curtailment. Although the language of the leaflet is couched in a manner to highlight adverse effects on students, it is quite apparent that many of the cutbacks were likewise adverse to teachers' conditions of employment. Thus, replacing fewer teachers than those who leave and curtailing extracurricular activities, special enrichment activities and summer school [ v29 p7 ] would result in less employment for teachers. Larger class sizes would mean a heavier work load for teachers. Clearly, the matters which concerned the Union were directly relates, to teachers' working conditions and readily recognizable as such.
The objective of the leaflet was to solicit the parents of students to make common cause with teachers and voice opposition to budget cuts which impacted on DODDS' schools. The primary thrust of the leaflet was to encourage parents to protest DODDS and write congressional representatives to support more funding for DODDS. In Bureau of Prisons, Federal Correctional Institution (Dansbury, Connecticut), 17 FLRA 696 (1985) the Authority held that interference with the right of an employee acting in a representative capacity to publicly state the views of a labor organization on matters affecting unit employees' terms and conditions of employment interfered with rights guaranteed by section 7102 of the Statute. 7 In that case, which dealt with an employee who sought to publicize issues concerning working conditions by giving a newspaper interview, the Authority ruled that a union is engaged in protected activity when it publicizes and communicates information in an attempt to improve working conditions. See also Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 21 FLRA 757 (1986). [ v29 p8 ]
Indeed, since unions and agencies in the public service may not negotiate on most economic conditions of employment, unions must seek Congressional or Executive action in order to improve the economic conditions of employees they represent. See e.g. American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986). This might well be termed "political" activity. But it is more than that. It is statutorily protected activity. The recognition of union necessity to follow this course of conduct is reflected in Section 7102(1) of the Statute, supra, wherein the right of unions to present views to officials of the Executive branch and Congress is specifically granted. 8 Communicating with the public to encourage others to make common cause with the employees' collective bargaining representative, which occurred herein, is merely a logical extension of the Union's Section 7102 rights and accordingly I conclude that such conduct is protected by the Statute.
In his brief counsel for Respondent states "Respondent was not even aware that AEAO was a labor organization" when it rejected the request to leaflet. 9 The record does not support that statement. To the contrary, the evidence supports a presumption that Respondent knew or should have known AEAO was a labor organization. Thus, when the request was made, Ms. Nowlin had been AEAO President for about two and a half years, teaching at Kadena for almost 4 years; the request was made on stationery which identified AEAO as affiliated with OEA and National Education Association, well known to be labor organizations; Respondent had a liaison officer with DODDS during which contacts one would expect [ v29 p9 ] AEAO's union capacity to be disclosed; and Colonel Lazorchak was present at a meeting around March 7 when AEAO was openly referred to as a union.
Having found that the distribution of the leaflet was protected activity, two questions remain: (1) Can Respondent's refusal to permit distribution of the leaflet be found to have violated the Statute if Respondent has no collective bargaining relationship with the Union and; (2) If answered in the affirmative, could Respondent refuse to permit distribution of the leaflet in any event since the leafleting was to occur on a military base?
OEA is the collective bargaining representative of DODDS' employees who work on Kadena Air Base and the Air Force, although it has control over the Air Base, has no collective bargaining relationship with DODDS' employees. However, DODDS and the Air Force are both components of the Department of Defense. DODDS' facilities are located on the Air Base which is under the control of the Air Force. DODDS' employees work on the Air Base to provide teachers for children of military and civilian personnel of the Air Force. Thus DODDS' employees are not merely public visitors or strangers to the Air Base. Rather, they enjoy a special status by reason of their mutual identity of interests with the Air Force and the interrelationship of organizations and endeavors between DODDS and the Air Force. Accordingly, I conclude there exists a sufficient nexus between the Air Force and DODDS' employees to hold the Air Force responsible under the Statute for interfering with rights protected by the Statute even in the absence of an employer-employee relationship between teachers and the Air Force. See Department of Commerce, Bureau of Census, et al., OALJ 86-78, Case Nos. 3-CA-50528 et al. (August 1, 1986) wherein Judge Samuel A. Chaitovitz treated a similar issue.
In the circumstances of this case I do not conclude that the place where the leafleting was to take place should privilege Respondent in preventing the Union from engaging in protected activity. I recognize that even "public" areas on military facilities, 10 from the very nature of a military facility, may call into play considerations different from other public areas whether private or [ v29 p10 ] governmental. There are salutary reasons indeed for "keeping official military activities wholly free of entanglement with partisan political campaigns" and "insulated from both the reality and appearance of acting as a handmaiden for partisan political causes or campaigns" See Greer v. Spock et Al., 424 U.S. 828, 96 S. Ct. 1121 (1976). Further, the Authority has recognized ". . . that the right of an employee acting in the capacity of a union representative to communicate information to the press, the general public or other interested parties" is not an unfettered right. Bureau of Prisons, supra at 697, and United States Forces Korea/Eight United States Army, 17 FLRA 719 (1985). However, in the case herein the Union is engaged in activity which is specifically protected by sections 7102 and 7211 of the Statute. Further, the activity was not partisan in the sense of endorsing a political party or its objectives nor directed to nor could it affect military personnel in their military capacity on the base. Rather, the Union merely seeks to encourage civilian employees and military personnel as parents of students to assist them in their protected endeavor. Those involved in the handbilling are not members of the general public but teachers who are legitimately present on the base as employees of DODDS, which is responsible to DOD, the same parent body as the Air Force, to educate children of military personnel and employees of the Air Force. In these circumstances I perceive little possibility that by respecting the Union's right to handbill at Kadena Air Base, the Air Force would be giving the appearance of lending support to the Union's efforts or being associated or entangled with a political cause. Further, nothing in the manner, timing or situs of the intended handbilling, the base commissary, can be construed to present an embarrassment to the Air Force or a threat or danger to the discipline, order or morale of the troops or prejudice Respondent's interests in any way. 11
Accordingly, having balanced the various rights and interests herein I conclude that neither the lack of a collective bargaining relationship with the Union nor the fact that a military base is involved herein constitutes a valid reason for Respondent's preventing the Union from engaging in the protected activity of distributing the leaflet described above at the base commissary. [ v29 p11 ]
Therefore, in view of the entire foregoing 12 conclude Respondent, by the conduct described above, violated section 7116(a)(1) of the Statute as alleged and recommend the Authority issue the following:
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 the Air Force, 18th Combat Support Wing, Kadena Air Base, Okinawa, Japan, shall:
1. Cease and desist from:
(a) Interfering with the rights of Department of Defense Dependents Schools' (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by refusing to allow the Overseas Education Association, the exclusive representative of DODDS' employees, to distribute handbills related to their terms and conditions of employment at the base commissary.
(b) In any like or related manner, interfering with, restraining or coercing any employee of DODDS in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at Air Force facilities at Kadena Air Base copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Commander of Kadena Air Base or a designated agent and shall be posted and maintained for sixty consecutive days thereafter, in conspicuous places, including all places where notices to [ v29 p12 ] employees are customarily posted. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, 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.
SALVATORE J. ARRIGO Administrative Law Judge Dated: April 15, 1987 Washington, D.C.
[ v29 p13 ]
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 interfere with the rights of Department of Defense Dependents Schools' (DODDS) employees to engage in activity protected by the Federal Service Labor - Management Relations Statute by re! using to allow the Overseas Education Association, the exclusive representative of DODDS' employees, to distribute handbills related to their terms and conditions of employment at