U.S. Patent and Trademark Office and National Treasury Employees Union (Authority decision, October 23, 1992)

Final FLRA decision. This is a final unfair-labor-practice order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Patent and Trademark Office barred employees from watching television in a lunchroom at its new facility without first giving the union notice and a chance to bargain. The agency argued that the ban merely applied an existing policy, but the Authority found that the former facility had no comparable lunchroom and the prior policy was not universal. It also found no reason the union should have anticipated the new lunchroom ban during negotiations over the move. The Authority adopted the administrative law judge's unfair labor practice finding. It ordered the agency to rescind the ban, bargain on request over future restrictions, and post a notice.

Decision snapshot

• Authority: Bargaining duties under 5 U.S.C. § 7116(a)(1) and (5).
• Outcome: Violation affirmed; lunchroom ban rescinded, bargaining and employee notice ordered.
• Key point: A new lunchroom restriction required notice and a chance to bargain even though the agency had a narrower prior policy.

Full text (FLRA public release)

[ v46 p278 ]
46:0278(24)CA

The decision of the Authority follows:

46 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. PATENT AND TRADEMARK OFFICE

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/Union)

3-CA-10667

_____

DECISION AND ORDER

October 23, 1992

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by prohibiting the use of televisions in its lunchroom without affording the Union notice of, and an opportunity to bargain over, the prohibition. The Respondent filed exceptions to the Judge's decision, and the General Counsel filed an opposition to the exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

We reject the Respondent's argument that its decision to prohibit the use of televisions in the lunchroom in its new facility was merely the lawful application of a preexisting policy. It is undisputed that, prior to the move, Respondent's facility did not contain a lunchroom or equivalent space. In this regard, the Judge found, and the record supports the findings, that "the prohibition of TV-watching in the lunchroom was as new as the lunchroom itself[]" and that the prior policy was not a "wall-to-wall prohibition." Judge's Decision at 5, 6. We also reject the Respondent's argument that the Union was required to raise matters concerning the lunchroom prohibition during negotiations over the impact and implementation of the move to the new facility and, as it did not, it may not bargain over such matters now. Nothing in the record before us demonstrates that the Union knew, or should have known, that the Respondent would extend its previous prohibition on television use to the new lunchroom. We agree with the Judge that the Union "was not required to raise at [the time of the move] issues that it could not reasonably anticipate would become relevant to the move." Id. at 6.

Finally, we note the Respondent's assertion that the parties' collective bargaining agreement covers the use of televisions and that, therefore, it has no further bargaining obligation over the subject. As the Respondent concedes, this argument was not presented to the Judge. Consequently, we will not consider it here. See 5 C.F.R. § 2429.5 ("The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . Administrative Law Judge").

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Patent and Trademark Office, shall:

1. Cease and desist from:

(a) Prohibiting the use of television sets in an employee lunchroom without first notifying the National Treasury Employees Union, the exclusive representative of affected employees, and providing it with an opportunity to negotiate about the prohibition.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Statute:

(a) Rescind the prohibition against use of television sets in the lunchroom in the South Tower Building.

(b) Notify and, upon request, negotiate with the National Treasury Employees Union concerning any restriction on use of television sets in the lunchroom.

(c) Post at all of its facilities where bargaining unit employees are located 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 Assistant Secretary and Commissioner of Patents and Trademarks 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.

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 prohibit the use of television sets in an employee lunchroom without first notifying the National Treasury Employees Union, the exclusive representative of affected employees, and providing it with an opportunity to negotiate such conditions.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights assured by the Statute.

WE WILL rescind the prohibition against the use of television sets in the lunchroom in the South Tower Building.

WE WILL notify and, upon request, negotiate with the National Treasury Employees Union concerning any restriction on watching television in the lunchroom.

_______

(Agency)

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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, NW, 7th Floor, P.O. Box 33758, Washington, DC 20033-0758, and whose telephone number is: (202) 653-8500.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)