Arbitration Award
|
In
re
Naval
Inventory Control Point
and
AFGE,
Local 1156
118
LA (BNA) 695
October
28, 2002
Reported
in July, 2003
Malcolm L. Pritzker, Arbitrator
Issues
1. May the Employer remove information the Union seeks to post on the “Electronic Bulletin Board” without first filing a management grievance and successfully pursuing that grievance through the grievance and arbitration procedure?
2. Were the Union's postings on the “Electronic Bulletin Board” of
March 14, April 14 and/or June 7, 2002 in violation of the limitations in the
April 12, 1995 letter?
Facts
In 1990, The Employer and the Union entered into a negotiated
agreement. The Employer was one of several divisions of the Navy that were
party to the agreement with the Union. No successor agreement has been agreed
to by the Employer and the Union.
In Article 18 of the negotiated agreement, section 2, the employer
agreed to purchase and install official AFGE bulletin boards. “Only the AFGE
may post or remove material on the AFGE bulletin board and the AFGE shall be
responsible for the contents of all posted materials.”
When the 1990 contract was negotiated, few employees had computer
terminals on their desks. By 1995, all employees had computer terminals at or
near their desks and the employer often communicated with employees by
transmitting information on the computers. The union asked the employer for
permission to use the computers to transmit information.
In a letter dated April 12, 1995, Phillip Warner, then a labor
relations specialist for the employer, by direction of the commanding officer,
wrote to Gregory Taylor, chief negotiator for the union, agreeing to the
union's request to use the “AFGE, CC: Mail Bulletin Board ... with the
understanding that the following types of information not be posted:
A. Information regarding internal union business.
B. Slanderous, derogatory, or otherwise objectionable remarks about management
or management officials.
C. Charges of Unfair Labor Practices.
D. Union or individual grievances.
E. Remarks or statements that would subject the command to ridicule.”
Phillip Warner, who signed the
1995 letter for the employer, testified that the employer from 1995 to his
retirement in 1999 had not removed any union material from what came to be
known as the “electronic bulletin board”. There were occasions when his staff
thought that union information of the electronic bulletin board was in
violation of the limitations in the 1995 letter. When that occurred, he and his
staff so advised management and presented choices. Mr. Warner did not specify
what these choices were.
Mr. Warner and local union
president Morrill subsequently met to attempt to negotiate a successor
negotiated contract to the 1990 contract. While they were in agreement on the
language of a revised article 18, the employer and the union never reached an
agreement on a new successor agreement. The 1990 negotiated agreement remains
in effect. The language in
the revised article 18 which was tentatively agreed to by Mr. Warner and Mr.
Morrill, was as follows: “The employer agrees to the purchase and installation
of official union bulletin boards. A. Clearly identifiable bulletin boards will
be provided for the posting of union material. Only the union may post or
remove material on the union bulletin board and the union shall be responsible
for the contents of all posted material. The union shall be responsible for the
maintenance of the union bulletin board. B. The union will be provided with an
electronic bulletin board for the purpose of posting union material in
accordance with law, rule and regulation. This is in addition to the seventeen
(17) currently provided.”
Kevin Kline, the successor to Mr.
Warner since 1999. Testified that since 1999, the employer has objected to some
of the material the union sought to post on the electronic bulletin board
because, in the opinion of the employer, the material was in violation of the
restrictions of the 1995 letter. On some occasions the union withdrew or
modified the material. On other occasions, the union refused to withdraw or
modify the material and the employer had the material removed from the
electronic bulletin board.
The employer removed union material from the electronic bulletin board
on 2/9/01, 6/19/01 and 3/1/02. On 3/11/02, the employer advised the union that
if it did not withdraw a portion of its material referring to unfair labor
practices, it would be deleted by the employer. The union refused and the
employer had the reference to unfair labor practices removed.
The union grieved in 3/14/02. The
union contended in the grievance that the employer was in violation of the
letter of 1995 and that the employer had violated the grievance procedure in
article 37, section 10 which allowed either the employer or the union to file
grievances. The union contended that the employer could not delete any of the
union material without first filing a grievance and having an arbitrator rule
that the material was in violation of the restrictions in the letter of
1995.
The union grieved on 4/17/02 when
the employer deleted a “Pennsylvania AFL-CIO Update”, which the employer
contended was internal union business and therefore barred by the 1995
letter.
On 6/7/02, the employer deleted a
sentence from a union message entitled “constructive criticisms accepted”. The
employer contended that the sentence which advocated that the employees
represented by the union who were not members of the union should join the
union, was internal union business.
Positions of the Parties
The Union
1. The employer may not remove any union material from the electronic bulletin board without first filing a grievance as provided in Article 37, section 10. Only when an arbitrator decides that the material is in violation of the letter of 1995 may the material be deleted.
2. Mr. Warner and Mr. Morrill
agreed to language, which makes it clear that the language which gives the
union full control of the hard bulletin boards also applies to the electronic
bulletin board.
3. The removal of the material by
the employer is a continuing violation, which may be grieved at any time. The
union is not precluded from grieving because on a few occasions prior to
3/14/02 they chose not to grieve.
1. The restrictions in the 1995
letter are binding on the union. But for the union's agreement to these
restrictions, the employer need not have allowed the union access to the
electronic bulletin board.
2. The material the employer
removed on 3/14, 4/17 and 6/7/02 was in violation of the restrictions in the
1995 letter.
3. The employer has the
contractual right to remove material from the electronic bulletin board without
filing a grievance and getting a ruling from an arbitrator. The past practice
is that once the employer notifies the union of the offensive material, the
employer removes the material, which the union refuses to remove.
The union's right to post any material on the hard bulletin boards and
not remove that material is not before me. This opinion and decision only
pertains to the removal by the employer of union material from the electronic
bulletin board.
The letter of 1995 and the restrictions on the union's use of the
electronic bulletin board remains binding on the parties. I can not give weight
to the so-called “contract” between Mr. Warner and Mr. Morrill in that it is
not and never was a contract binding on the parties. The language for a revised
article 18 was a tentative agreement between two representatives, which was
never agreed to by the employer and was never incorporated in a signed
supplemental agreement, side letter or contract.
I agree that the union may file a grievance any time the employer
deletes any material from the electronic bulletin board. The deletion of union
material is a continuing violation if indeed the deletion of the material is
not in accord with the 1995 restrictions. The union's failure to grieve each
and every time the employer deletes material does not bar them from grieving on
any other occasion. The Union's failure to grieve when prior to 3/14 the
material was deleted by the employer does not establish a past practice which
bars them from grieving at some future time.
I do not agree that the letter of 1995 or the negotiated agreement
requires the employer to file a grievance and get a ruling from an arbitrator
prior to deleting union material from the electronic bulletin board. The grievance procedure
specifies that either party “may” grieve. It is permissive, not mandatory.
Article 7, section 3 of the negotiated agreement provides that “...
understandings which have been mutually acceptable to the parties which are not
specifically covered by this agreement shall not be changed without prior
negotiation between the employer and AFGE”. The letter of 1995 is an understanding on a subject—the
union's use of the electronic bulletin board—which is not specifically covered
by the agreement.
If the employer had to wait months from the time the union posted
material on the electronic bulletin board which might be in direct violation of
the restrictions in the 1995 letter before removing it, the subsequent removal
would be akin to locking the barn door after the horse has escaped. For
example, this grievance was filed on March 14 and this arbitration decision is
dated more than seven months later in October. If the material, however violative of the 1995
restrictions, remained on the electronic bulletin board for seven months, the
subsequent removal would render the restrictions essentially meaningless.
Material which might be “slanderous, derogatory” would remain posted for seven
months. As I read the
letter of 1995, the employer has the right to remove material it feels is in
violation of the restrictions and the union then has the right to grieve if
they feel the employer has exceeded the 1995 limitations.
The question remaining before me
is whether the employer's removal of the material in March, April and June was
justified by the limitations in the 1995 letter.
The reference in the March 11,
2002 material to unfair labor practices is clearly in violation of C in the
1995 letter. The employer's removal of that language is not a violation of the
1995 restrictions. The Union's grievance concerning the removal of the March
11, 2002 material is denied.
I do not find that the employer acted in accordance with the 1995 limitations
in deleting the Pennsylvania AFL-CIO Update from the electronic bulletin board
in April 2002. The employer bases its deletion of this material on the
assertion that this is “information regarding Internal union business'' and
therefore in violation of A in the letter of 1995. I do not agree. This
particular AFL-CIO report discusses state laws that have been passed and the
administration of these laws. I see nothing in this particular report which
discusses the internal union business of Local 1156. The financial report of the
local, minutes of its meetings or a report by a committee of the local would be
internal union business. A
report of state laws is generic information, which may be of interest to any
worker, or citizen of Pennsylvania, whether or not the person is represented by
Local 1156. It is the internal business of Local 1156 that is prohibited by the
1995 letter and not generic information, which may be of interest to all
workers. If the employer could apply A this broadly, then the agreement to
allow the union to use the electronic bulletin board would essentially be
rendered meaningless. I also cannot conclude that the April 17 posting was in
violation of the Hatch Act in that this particular posting does not advocate
voting for a particular candidate or “political campaigns.” For these reasons,
I find in the union's favor and rule that the employer violated the 1995 letter
in deleting this report in April of 2002.
The June 7, 2002 posting was clearly “internal union business” in that
it urges non-union employees to join the union. Clearly, an effort by Local
1156 to have employees join the local and pay dues is internal union business.
For this reason, I deny the union grievance and rule that the employer did not
violate the 1995 letter by deleting this material in June 2002.
The Union's grievance concerning the employer's removal of union
material from the electronic bulletin board on March 11 and June 7, 2002 are
denied. The employer was in violation of the 1995 letter when it removed the
union material from the electronic bulletin board on April 17, 2002.