Naval Inventory Control Point
AFGE, Local 1156
118 LA (BNA) 695
October 28, 2002
Reported in July, 2003
Malcolm L. Pritzker, Arbitrator
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?
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
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.