16:0717(102)CA - NTEU and NTEU Chapter 121 and Treasury, Bureau of Alcohol, Tobacco and Firearms -- 1984 FLRAdec CA



[ v16 p717 ]
16:0717(102)CA
The decision of the Authority follows:


 16 FLRA No. 102
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NATIONAL TREASURY EMPLOYEES
 UNION CHAPTER 121
 Respondent
 
 and
 
 DEPARTMENT OF THE TREASURY
 BUREAU OF ALCOHOL, TOBACCO
 AND FIREARMS
 Charging Party
 
                                            Case No. 6-CO-15
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Exceptions to the Judge's Decision were
 filed by the Respondent with the Charging Party filing an opposition.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Judge's findings, conclusions and Recommended Order as
 modified below.
 
    The Judge found that the National Treasury Employees Union's (NTEU)
 policy of not furnishing attorneys to represent non-members in units of
 exclusive recognition while furnishing attorneys to represent members,
 was in derogation of its obligation under section 7114(a)(1) of the
 Statute to represent the interest of all employees in the bargaining
 unit without discrimination and therefore violative of section
 7116(b)(1) and (8) of the Statute.  The Judge further found that NETU's
 conduct also constituted an independent violation of section 7116(b)(1)
 of the Statute by interfering with the employees' protected right under
 section 7102 of the Statute to refrain from joining a labor
 organization.
 
    The dispositive facts and positions of the parties on the foregoing
 issues are substantially identical to those found in National Treasury
 Employees Union, 10 FLRA 519 (1982), enforced sub nom. National Treasury
 Employees Union v. Federal Labor Relations Authority, 721 F.2d 1402
 (D.C. Cir. 1983), in which the Authority found that NTEU failed to meet
 its obligation under section 7114(a)(1) of the Statute to represent the
 interest of all unit employees without discrimination by (1) posting
 copies of a memorandum issued by NTEU's President at a number of
 locations within the U.S. Customs Service announcing the continuation of
 NTEU's policy of not furnishing attorneys to represent non-members while
 furnishing attorneys to represent members, and (2) implementing the
 foregoing policy at the Nuclear Regulatory Commission by denying
 attorney representation to non-member employees while providing such
 representation to members involved in removal actions at the Merit
 Systems Protection Board.  Accordingly, in agreement with the Judge, and
 for the reasons fully stated in National Treasury Employees Union,
 supra, the Authority finds that NTEU has failed and refused to comply
 with section 7114(a)(1) of the Statute, and therefore has violated
 section 7116(b)(1) and (8) of the Statute.
 
    However, the Authority disagrees with the Judge's finding that the
 Respondent National Treasury Employees Union, Chapter 121 also violated
 section 7116(b)(1) and (8) of the Statute by such action.  Contrary to
 the Judge, the Authority finds that NTEU, Chapter 121 is a subordinate
 subdivision of the National Union, subject to its ultimate full control
 and supervision and had no choice but to implement the policy directives
 of the National Union.  In so finding, the Authority notes particularly
 that the NTEU charters its chapters and under its Constitution retains
 ultimate full authority over, supervision of, and the right to
 discipline chapters and locally elected officers.  /1/ Previous
 decisions of the Authority have established that a separate violation of
 the duty to bargain can not be held against a subordinate activity based
 solely upon the subordinate activity's ministerial actions in
 implementing the directives from higher level management.  Department of
 the Interior, Water and Power Resources Service, Grand Coulee Project,
 Grand Coulee, Washington, 9 FLRA 385 (1982);  and Department of Health
 and Human Services, Social Security Administration, Region VI, and
 Department of Health and Human Services, Social Security Administration,
 Galveston, Texas District, 10 FLRA 26 (1982).  Consequently, the
 Authority concludes that the purposes and policies of the Statute would
 not be effectuated by finding a separate violation based on Chapter
 121's ministerial act of implementing the policy directive from higher
 level union management.
 
    In agreement with the Judge, the Authority finds that a broad
 remedial posting order is appropriate.  /2/ In so finding, the Authority
 notes particularly the previous similar violation found against NTEU
 under the Statute;  that this has been a continuing national policy of
 the NTEU which has been publicized and disseminated throughout its
 chapters nationwide;  and that the policy has been applicable to all
 employees in all units in which NTEU holds exclusive recognition.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the National Treasury Employees Union shall:
 
    1.  Cease and desist from:
 
    (a) Affording differing standards of employee representation to
 employees in units of exclusive recognition solely on the basis of
 whether such employees are members of the National Treasury Employees
 Union.
 
    (b) Interfering with, restraining, or coercing unit employees in the
 exercise of their right to refrain from joining, freely and without fear
 or penalty or reprisal, the National Treasury Employees Union or any
 other labor organization.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing unit employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the statute:
 
    (a) National Treasury Employees Union, by its President, shall
 forthwith notify all national office officials, including its legal
 staff, and each Chapter President, in writing, that the National
 Treasury Employees Union's policy has changed;  that the National
 Treasury Employees Union will supply attorneys to non-members to help in
 representational efforts on the same basis as it supplies attorneys to
 members to help in representational efforts;  and that the statement in
 President Connery's memorandum dated September 7, 1979, to the contrary
 is hereby withdrawn and rescinded.
 
    (b) National Treasury Employees Union will represent the interests of
 all employees in units where it holds exclusive recognition without
 discrimination and without regard to labor organization membership.
 
    (c) Post at its national headquarters, at the local business office
 of each of its chapters, and at each agency or activity, including but
 not limited to Department of the Treasury, Bureau of Alcohol, Tobacco
 and Firearms, for which the National Treasury Employees Union, and/or
 any chapter of the National Treasury Employees Union holds exclusive
 recognition, and at all places where notices to members and other
 employees are customarily posted, 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 President of the National
 Treasury Employees Union and they shall be posted and maintained for 60
 consecutive days thereafter in conspicuous places, including all places
 where notices to members and the other employees are customarily posted.
  The National Treasury Employees Union shall take reasonable steps to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (d) Submit appropriate signed copies of such Notices to the Director,
 Bureau of Alcohol, Tobacco and Firearms, Washington, D.C.; and, upon
 request, to an appropriate officer of each other agency or activity for
 which the National Treasury Employees Union and/or any chapter of the
 National Treasury Employees Union holds exclusive recognition, for
 posting in conspicuous places where the respective unit employees are
 located, where they shall be maintained for a period of 60 consecutive
 days from the date of posting.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of Region VI, 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.
 
    IT IS HEREBY FURTHER ORDERED that the complaint in Case No. 6-CO-15,
 insofar as it alleges a violation of section 7116(b)(1) and (8) of the
 Statute, by Respondent NTEU, Chapter 121 be, and it hereby is,
 dismissed.  
 
 Issued, Washington, D.C., December 4, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                          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 ALL MEMBERS AND EMPLOYEES OF ALL
 UNITS FOR
 WHICH THE NATIONAL TREASURY EMPLOYEES UNION, AND/OR ANY
 CHAPTER OF THE
 NATIONAL TREASURY EMPLOYEES UNION HOLDS EXCLUSIVE
 RECOGNITION, THAT:
 
    WE WILL NOT afford differing standards of employee representation to
 employees in units of exclusive recognition solely on the basis of
 whether such employees are members of the National Treasury Employees
 Union.
 
    WE WILL NOT interfere with, restrain, or coerce unit employees in the
 exercise of their right to refrain from joining, freely and without fear
 or penalty or reprisal, the National Treasury Employees Union or any
 other labor organization.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce unit employees in the exercise of their rights assured by the
 Statute.
 
    WE HEREBY NOTIFY all members and all employees in all units in which
 we hold exclusive recognition that the National Treasury Employees
 Union's policy has changed;  that the National Treasury Union Employees
 will supply attorneys to non-members to help in representational efforts
 on the same basis as it supplies attorneys to members;  and that the
 statement in President Connery's memorandum, dated September 7, 1979, to
 the contrary is hereby withdrawn and rescinded.
 
    WE WILL represent all employees in units where we hold exclusive
 recognition without discrimination and without regard to labor
 organization membership.
                                       (Labor Organization)
 
    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 of the Federal Labor Relations Authority, Region VI,
 whose address is:  Bryan & Ervay Streets, Room 450, P.O. Box 2640,
 Dallas, Texas 75221 and whose telephone number is (214) 767-4996.
 
 
 
 
 
 
 
 
  FOLLOWS --------------------
 
 CISION
    AND NATIONAL TREASURY EMPLOYEES
    UNION CHAPTER 121
                                Respondent
 
    and
 
    DEPARTMENT OF TREASURY,
    BUREAU OF ALCOHOL, TOBACCO
    AND FIREARMS
                              Charging Party
 
                                       Case No. 6-CO-15
 
    Rob V. Robertson, Esquire
    For the Respondent
 
    Rosemary Kvaka, Esquire
    John A. Chevrier, by Brief
    For the Charging Party
 
    James E. Dumerer, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding, under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of title 5 of the United States Code, 5
 U.S.C. 7101, et seq., /3/ and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. 2423.1, et seq., concerns the alleged policy of
 Respondents to provide attorneys to represent bargaining unit employees
 on the basis of their union membership, contrary to Sec. 14(a)(1) of the
 Statute and in violation of Secs. 16(b)(1) and (8) of the Statute.  It
 was initiated by a charge filed on February 11, 1980 (G.C. Exh. 1(a));
 a Complaint and Notice of Hearing issued on November 20, 1980 (G.C. Exh.
 1(d));  an Amended Complaint and Notice of Hearing issued on December
 19, 1980 (G.C. Exh. 1(g)) and the Notice of Hearing set the hearing for
 March 4, 1981, at a place to be determined;  by Order dated February 23,
 1981, the hearing was rescheduled for April 23, 1981 (G.C. Exh. 1(k));
 on April 2, 1981, Henry H. Robinson, then Associate General Counsel,
 National Treasury Employees Union, filed a motion, inter alia, to Limit
 Proof at Hearing, stating, in part, that since the issuance of the
 Complaint and Amended Complaint herein, an Administrative Law Judge had
 issued a decision in consolidated Case Nos. 3-CO-26 and 3-CO-37 which
 had directly addressed and made holdings on all matters regarding the
 September 7, 1979, Memorandum signed by President Vincent L. Connery,
 referred to in Paragraph 9 of the Amended Complaint (also referred to in
 Paragraph 8 of the original Complaint) and further represented, in part,
 that "Respondent recognizes and accepts the fact that the ultimate
 decision in Case Nos. 3-CO-26 and 37 will be res judicata as to the
 September 7 Memorandum" and that, "Inasmuch as the decision in Case Nos.
 3-CO-26 and 37 will be and is res judicata with respect to all matters
 pertaining to the September 7 Memorandum, it would be inefficient and
 useless to relitigate the identical issue a second time in the present
 case . . . ." (G.C. Exh. 1(m));  on April 17, 1981, the General Counsel
 requested that the hearing be indefinitely postponed for the reason that
 "Counsel for Respondent has indicated that Respondent will settle . . .
 in accordance with the Authority's disposition . . . in consolidated
 Case Nos. 3-CO-26 and 3-CO-37, which involve the same Respondent . . .
 and which present the same legal issues . . . ." (G.C. Exh. 1(r));  the
 case was indefinitely postponed on April 17, 1981;  Charging Party filed
 an opposition (G.C. Exh. 1(q));  the decision was reconsidered in light
 of the objections interposed and, on April 22, the objections were
 denied and the hearing was postponed indefinitely (G.C. Exh. 1(s));  the
 Authority's decision in Case Nos. 3-CO-26 and 3-CO-37 (10 FLRA No. 91,
 10 FLRA 519) issued on November 23, 1982, and subsequently Respondent
 declined to settle in accordance with the Authority's decision /4/ and,
 by Order dated January 28, 1983 (G.C. Exh. 1(v)) the case was
 rescheduled for hearing on February 16, 1983, pursuant to which a
 hearing was duly held on February 16, 1983, in Dallas, Texas, before the
 undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issues involved, and were afforded
 opportunity to present oral argument.  General Counsel presented oral
 argument but Counsel for Respondents and for the Charging Party waived
 oral argument.  At the close of the hearing, Respondents for good cause
 shown, requested that April 4, 1983, be fixed as the date for mailing
 post hearing briefs and there being no opposition, April 4, 1983, was
 fixed as the date for mailing post-hearing briefs.  Respondents and the
 Charging Party each timely mailed a brief, received on or before April
 6, 1983, which have been carefully considered together with the closing
 argument of the General Counsel.  Upon the basis of the entire record,
 including my observation of the witnesses and their demeanor, I make the
 following findings and conclusions:
 
                                 Findings
 
    1.  The National Treasury Employees Union (NTEU), is the certified
 exclusive representative, nation-wide, of all non-professional employees
 employed by the Regional offices of the Bureau of Alcohol, Tobacco and
 Firearms, Department of the Treasury, with certain exclusions as more
 fully set forth in Paragraph 5 of the Complaint.
 
    2.  Chapter 121 represents employees both in Dallas, Texas, and in
 Denver, Colorado (Tr. 29).  Paragraph 6 of the Complaint alleges that,
 "At all times material herein, Chapter 121 has been the agent of the
 National (NTEU) for purposes of representation of employees, collective
 bargaining, and administration of the collective bargaining agreement
 covering employees mentioned in Paragraph 5 above" (G.C. Exh. 1(q)).
 Respondents' Answer states, "Chapter 121 has not been the national
 union's agent in all representational, collective bargaining and
 contract administration matters, but has been the agent in some" (G.C.
 Exh. 1(i)).  " . . . was the exclusive representative . . . that
 Jeanette Green (in 1979 was President of Chapter 121 (Tr. 28-29)) was a
 union officer on behalf of the exclusive representative" (Tr. 48).
 Counsel for Respondents objected to Chapter 121 as "the proper
 Respondent" (Tr. 44) and asserted that, " . . . to the extent a remedy
 may be required, the remedy would fall upon the legal responsibility of
 the National Treasury Employees Union, Washington, D.C." (Tr. 46).
 
    3.  In August 1979, Mr. Carter Wright, an inspector with the Bureau
 of Alcohol, Tobacco and Firearms (ATF) in Denver, Colorado, received a
 letter stating that ATF was contemplating adverse action (Tr. 10).
 
    4.  Mr. Wright spoke to personnel officer Mary Dodd who referred him
 to Jeanette Green, President of Local 121.  Mr. Wright testified that he
 called Ms. Green " . . . who was the union representative, and discussed
 whether or not I would be-- I was eligible to obtain an attorney since I
 was a non-member of the union" (Tr. 10).  Mr. Wright stated that,
 
          "A.  As I recall, her advice was that I would be ineligible.
 
          "Q.  She said that you would not be eligible for attorney
       representation by the union?
 
          "A.  Yes, since I was a non-member" (Tr. 11).
 
    5.  Ms. Jeanette Green, now retired, in August 1979, was employed by
 ATF in Dallas, Texas, and was President of Local 121 which covers both
 Dallas and Denver, Colorado (Tr. 28-29).  Ms. Green readily conceded
 that she told Mr. Wright that,
 
          "A.  I told him that it was the policy generally not to furnish
       legal counsel to non-members . . . ." (Tr. 29).
 
 Ms. Green further stated that she told Mr. Wright,
 
          " . . . that if he was in a position where he had to meet with
       management and wanted representation, that as president and chief
       steward, I would meet with him and be present-- you know-- at that
       meeting" (Tr. 29).
 
 Ms. Green further stated that she had no idea what type of case Mr.
 Wright had;  that she didn't know if his case was a grievance (Tr. 40);
 that Mr. Wright didn't mention that he had a proposal that he be fired "
 . . . he didn't tell me what he was calling for." (Tr. 41).
 
    6.  Ms. Green did tell Mr. Wright that if he wanted more information
 he could call NTEU counsel, Mr. Henry Robinson, in Austin, and gave him
 the telephone number (Tr. 15, 30).  Mr. Weight did not call Mr. Robinson
 but, at his former wife's suggestion (Tr. 16, 17), called NTEU Vice
 President Robert Tobias in Washington, D.C. (Tr. 15).  Mr. Wright
 testified concerning his conversations with Mr. Tobias, in part, as
 follows:
 
          "A.  I spoke with Mr. Tobias and discussed the elements of the
       case.  He appeared to be very favorable toward it and felt that I
       could receive representation.  However, he couldn't make a
       statement during that call whether or not I would receive
       representation, and said he would have to refer it to the
       president of the union and that I should call back two days later,
       which I did.
 
          "I spoke with Mr. Tobias again, and he had discussed the case
       as I had gone over it with him, to the union president who felt
       that it wouldn't be advisable for them to provide representation.
 
          "Q.  And they-- It wouldn't be advisable to provide
       representation why?
 
          "A.  Primarily because of-- they felt that my case lacked
       judicial appeal or that my chances of success were not good.  He
       explained that they handled cases for union members automatically,
       and in some instances they handled cases for non-union members,
       but he did not feel they would in my case" (Tr. 17-18).
 
                                  * * * *
 
          "Q.  You testified that Mr. Tobias said that if you were a
       member that he would automatically supply you an attorney.  Are
       you saying that you're quoting Mr. Tobias, or are you saying that
       it was your feeling that you would have-- that he would have
       supplied you an attorney had you been a member of the union?
 
          "A.  No.  He stated that had I been a member of the union, he
       would have been obligated to provide an attorney.
 
          "Q.  What did the obligation, in your understanding--
 
          "A.  It was policy at that time, and it was policy to accept
       favorable cases of non-union members at that time" (Tr. 19).
 
                                  * * * *
 
          "Q.  Did you testify that on the first conversation, Mr. Tobias
       talked rather favorably about your case?
 
          "A.  Yes, he did.
 
          "Q.  Can you be more detailed?
 
          "A.  He felt that I was not at fault, considering the
       circumstances and the situation in the case, and he felt that
       after he discussed it with the president of the union, Mr.
       Connery, that he would agree.
 
          "However, after this was done, Connery did not-- was not
       favorable to providing representation.
 
          "Q.  During your two conversations with Mr. Tobias, did he
       state that this policy applied only to individuals within the
       Bureau of Alcohol, Tobacco and Firearms?
 
          "A.  No, I think it was a general policy for all Treasury
       Department.
 
          "Q.  For places where the NTEU has recognition?
 
          "A.  Is represented, yes" (Tr. 21-22).
 
    7.  Although Mr. Wright's conversation with Ms. Green and with Mr.
 Tobias occurred in August 1979, and although Mr. Wright testified that
 he felt that his entitlement to an attorney, as a non-union member,
 centered around the merits of his case (Tr. 20);  nevertheless,
 President Connery by his memorandum of September 7, 1979, to NTEU
 Chapter Presidents (G.C. Exh. 3), which Ms. Green acknowledged receiving
 (Tr. 31), after referring to the Authority's Decision in 1 FLRA No. 104,
 stated, in part, as follows:
 
          "However, the fact that we are not appealing the decision
       (because Executive Order 11491 was no longer in existence) does
       not mean NTEU policy has changed.  NTEU will not supply attorneys
       to non-members to help in representational efforts.  If a new
       charge is filed against NTEU based on the new language in the
       Civil Service Reform Act, we will continue to resist it" (G.C.
       Exh. 3).
 
                                CONCLUSIONS
 
    The record is clear that the President of NTEU Chapter 121, Jeanette
 Green, in August 1979, told a unit employee, Mr. Carter Wright, " . . .
 that it was the policy (of NTEU) generally not to furnish legal counsel
 to non-members," although Ms. Green, as President and Chief Steward of
 Chapter 121, offered to be present if Mr. Wright had to meet with
 management and wanted representation.  Mr. Wright fully understood from
 Ms. Green's advice that he was not eligible for attorney representation
 by the Union because he was a non-member;  nevertheless, Mr. Wright
 pursued the matter further by calling the Vice President of NTEU, Mr.
 Robert Tobias, in Washington, D.C.  Mr. Wright's testimony was neither
 challenged nor contradicted and, accordingly, the record is further
 clear that Mr. Tobias told Mr. Wright that they (NTEU) " . . . handled
 cases for union member automatically, and in some instances they (NTEU)
 handled cases for non-union members . . . ";  that Mr. Tobias told Mr.
 Wright, " . . . that had I been a member of the union, he would have
 been obligated to provide an attorney";  that "It was policy at that
 time, and it was policy to accept favorable cases of non-union members
 at that time."
 
    Both by the statement of the President of Chapter 121 and by the
 statements of NTEU's Vice President, Respondents made it clear that
 attorney representation by NTEU was based, in whole or in part, on Union
 membership.  Thus, Ms. Green admitted that she told Mr. Wright that "it
 was the policy generally not to furnish legal counsel to non-members."
 Ms. Green's testimony corroborated the entirely consistent and wholly
 credible testimony of Mr. Wright that Ms. Green told him that he "would
 be ineligible" for attorney representation by the Union "since I was a
 non-member." Thereafter, Mr. Tobias told Mr. Wright that NTEU "handled
 cases for union members automatically, and in some instances they
 handled cases for non-union members . . . ";  that had Mr. Wright been a
 member of the Union, "he would have been obligated to provide an
 attorney" but that it was policy to accept only " . . . favorable cases
 of non-union members . . . ." At the least, Mr. Tobias left no possible
 doubt that the standard for attorney representation of non-members was
 starkly different than the standard for members.
 
    While the statement of Mr. Tobias to Mr. Wright is not in dispute,
 the sincerity of his representation to Mr. Wright, that President
 Connery's refusal to authorize attorney representation centered around
 the merits of his case, is rendered highly suspect by President
 Connery's memorandum of September 7, 1979, /5/ to all NTEU Chapter
 Presidents in which he stated, in part, that:
 
          " . . . NTEU will not supply attorneys to non-members to help
       in representational efforts . . . ." (G.C. Exh. 3).
 
 In any event, the issuance and dissemination of the memorandum of
 September 7, 1979, to NTEU Chapter Presidents, including Ms. Green,
 President of Chapter 121, did, as alleged in Paragraph 9 of the Amended
 Complaint (Paragraph 8 of the original Complaint) state NTEU's policy
 that NTEU will not supply attorneys to non-members to help in
 representational efforts.  Respondents' assertion that this allegation
 is "not within the scope of the change" (G.C. Exh. 1(f) and 1(i)) is
 without merit.  The charge (G.C. Exh. 1(a)) specifically stated, inter
 alia. "Carrying out the National Office's policy (attached) . . . ",
 said attachment having been President Connery's memorandum of September
 7, 1979, which gave adequate, indeed specific, notice of the policy
 alleged.  However, even if a copy of the actual policy had not been
 attached, reference to the National Office's policy in the charge would
 have been sufficient.  Department of the Interior, U.S. Geological
 Survey Conservation Division, Gulf of Mexico Region, Metarie, Louisiana,
 9 FLRA No. 65, 9 FLRA 543, 544, 551-554 (1982);  National Labor
 Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937);
 National Labor Relations Board v. Fant Milling Co., 360 U.S. 301 (1959);
  National Labor Relations Board v. Braswell Motor Freight Lines, Inc.,
 486 F.2d 743 (7th Cir. 1973).
 
    As I stated, in National Treasury Employees Union, 10 FLRA No. 91, 10
 FLRA 519, 533 (1982),
 
          "I have no doubt whatever that Respondent, or any union, may
       properly establish criteria for providing the assistance of
       attorneys to members of bargaining units such as:  nature of the
       case;  availability of an attorney;  importance of issues
       involved, provided such criteria are applied uniformly to all
       members of the bargaining unit.  But any criteria whereby
       representation of the interests of all employees in the unit is
       discriminatory or is based in any manner on labor organization
       membership is proscribed by Sec. 14(a)(1) of the Statute."
 
    Ms. Green's statement to Mr. Wright that the policy was "not to
 furnish legal counsel to non-members" violated the obligation imposed by
 Sec. 14(a)(1) of the Statute to represent the interests of all unit
 employees without discrimination and without regard to labor
 organization membership and constituted an unfair labor practice in
 violation of Secs. 16(b)(1) and (8) of the Statute;  but, although this
 unfair labor practice was committed by Chapter 121, may an order run
 against Chapter 121 since Chapter President Green's action was a
 ministerial action implementing NTEU policy?  I am well aware that the
 Authority has declined to find a violation by an activity which
 ministerially followed the dictates of an agency.  Department of the
 Interior, Water and Power Resources Service, Grand Coulee Project, Grand
 Coulee, Washington, 9 FLRA No. 46, 9 FLRA 385, 388 (1982) (hereinafter
 referred to as "Grand Coulee");  Department of Health and Human
 Services, Social Security Administration, Region VI, and Department of
 Health and Human Services, Social Security Administration, Galveston,
 Texas District, 10 FLRA No. 9, 10 FLRA 26, 28-29 (1982) (hereinafter
 referred to as "Galveston").
 
    At the outset, whether or not a separate violation is found, Chapter
 121 was, and is, a proper Respondent.  See the excellent analysis of
 Judge Dowd in Internal Revenue Service, San Francisco District and
 Internal Revenue Service, Washington, D.C., Case No. 9-CA-1169,
 Administrative Law Judge Decisions Report No. 25 (April 29, 1983).
 
    Many of the factors which have given rise to the principal stated in
 Grand Coulee, supra, and Galveston, supra, are applicable here.  Thus,
 NTEU is the exclusive representative, nation-wide, for ATF;  Ms. Green
 was "a Union officer on behalf of the exclusive representative";  and
 Ms. Green implemented the policy of NTEU concerning attorney
 representation.  At the same time, there are significant differences.
 Chapters of NTEU are not subdivisions of NTEU in the sense that an
 activity is the subdivision of an agency.  To the contrary, each Chapter
 has its own elected officers and as Respondent's Answers states,
 "Chapter 121 has not been the national union's agent in all
 representational, collective bargaining and contract administration
 matters, but has been the agent in some."
 
    It is also true that Sec. 14(a)(1) specifically refers to "exclusive
 representative" and NTEU, not Chapter 121, is the exclusive
 representative.  Nevertheless, having weighed all factors carefully, I
 conclude that the rule of Grand Coulee, supra, and Galveston, supra,
 should not be extended to labor organizations because local chapters, or
 local unions, are not subdivisions of the national union in the sense
 that activities are subdivision of agencies.  In addition, I conclude
 that Local 121's conduct constituted an independent violation of Sec.
 16(b)(1) because it interfered with the employee's protected right under
 Sec. 2 of the Statute to refrain from joining a labor organization.
 National Treasury Employees Union, supra.  Moreover, the policy of NTEU,
 "not to furnish legal counsel to non-members," implemented by Ms. Green,
 violated its obligation under Sec. 14(a)(1) of the Statute and NTEU
 thereby violated Secs. 16(b)(1) and (8) of the Statute and NTEU's
 conduct, through its agent, Chapter 121, also constituted an independent
 violation of Sec. 16(b)(1) because it interfered with the employee's
 protected right under Sec. 2 of the Statute to refrain from joining a
 labor organization.
 
    NTEU's conduct, by Mr. Tobias, in informing Mr. Wright that its
 policy was to provide attorneys to represent union members automatically
 but that it only handled cases for non-union members "in some cases"
 and/or that it only accepted "favorable cases of non-union members," was
 also in derogation of its obligation under Sec. 14(a)(1) of the Statute
 and NTEU thereby violated Sec. 16(b)(1) and (8) of the Statute.
 Further, its conduct also constituted an independent violation of Sec.
 16(b)(1) because it interfered with the employee's protected right under
 Sec. 2 of the Statute to refrain from joining a labor organization.
 
    In his conversations with Mr. Tobias, Mr. Wright discussed the
 elements of his case and, although the record does not show that the
 attorney representation sought was representation in a Merit Systems
 Board proceeding, it might be reasonable to infer that Messrs. Wright,
 Tobias and Connery contemplated a Merit Systems Board proceeding as,
 indeed, followed.  Even if it were assumed that Mr. Wright's request to
 Mr. Tobias had been for attorney representation before the Merit Systems
 Protection Board, and neither Mr. Wright's request nor Mr. Tobias'
 response after referral of the request to President Connery was limited
 to MSPB representation, NTEU nevertheless, acted in derogation of its
 obligation under Sec. 14(a)(1) of the Statute, and thereby violated
 Secs. 16(b)(1) and (8) of the Statute, by affording such representation
 to members on a basis different than for non-members.  In so concluding,
 I am aware that the Authority, in American Federation of Government
 Employees, Local 2126, AFL-CIO, San Francisco, California, 1 FLRA No.
 112, 1 FLRA 992 (1979), adopted an Administrative Law Judge's decision
 that " . . . the union, as such, had no duty to represent complainant in
 his EEO complaint." (1 FLRA at 999).  By analogy, I assume, but do not
 decide, that NTEU has no duty to represent any employee before the MSPB;
  but if it affords such representation to some members of the bargaining
 unit it represents, it must do so without discrimination and without
 regard to labor organization membership.  I am also aware of the
 decision of the Federal Labor Relations Council, in United States
 Department of the Navy, Naval Ordnance Station, Louisville, Kentucky,
 FLRC No. 74 A-54, 3 FLRC 686 (1975), which held, in part, that Section
 10(e) of Executive Order 11491, as amended, /6/ " . . . does not impose
 upon a labor organization holding exclusive recognition an obligation to
 represent a bargaining unit employee in an adverse action proceeding
 until such time as the employee indicates a desire to choose his own
 representative" (3 FLRA at 686), but that decision is not applicable
 here.  I have also given long and careful consideration to Judge
 Sternburg's well considered decision in American Federation of
 Government Employees, AFL-CIO and Social Security Administration, Case
 No. 3-CO-20003 (OALJ-82-131, September 16, 1982), in which he held that
 charging different, or higher, contingent fees for non-union employees
 than for union employees in a civil class action by a private attorney
 paid a retainer by the union did not violate Secs. 16(b)(1) or (8) of
 the Statute.  Although that case is distinguishable, (see:  American
 Federation of Government Employees, AFL-CIO, Local 916 and United States
 Department of Defense, Department of The Air Force, Oklahoma City Air
 Logistics Center, Tinker Air Force Base, Oklahoma, Case No. 6-CO-20008,
 OALJ-83-109, hereinafter referred to as the "Local 916" case) I am aware
 that it appears to be based, at least in part, on the premise that the
 Union did not control access to suit in court.  To that extent, my
 conclusion herein may be at variance with that of Judge Sternburg and,
 while I deplore any such variance, I am constrained, by the language of
 the Statute and by the decisions in American Federation of Government
 Employees, Local 1778, AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (1983);  and
 National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 525 (1982),
 to conclude that when a labor organization undertakes to provide
 attorney representation in matters concerning conditions of employment
 for some members of the bargaining unit it represents it must do so
 without discrimination and without regard to labor organization
 membership.  (See, also, my decision in the Local 916 case).  NTEU did
 not provide attorney representation to Mr. Wright, a non-union member of
 the bargaining unit, on the same basis as it provided attorney
 representation to union members of the bargaining unit, but, to the
 contrary, discriminated on the basis of labor organization membership.
 While consideration of the merits of a case is a proper and valid
 consideration if applied uniformly to all cases, it is not a valid or
 proper consideration when joined with consideration of the employee's
 labor organization membership.  Nor do I find convincing NTEU's
 assertion of cost as justification for discrimination against
 non-members of the union.  Under the Statute, exclusive recognition is a
 valuable status for a labor organization but it does, indeed, impose a
 duty and responsibility for representing the interests of all employees
 in the unit it represents without discrimination and without regard to
 labor organization membership.  To assure its ability to do so, board
 and liberal provision is made for the allowance of official time, for
 services and for facilities.  The doctrine of fair representation
 developed in the private sector is applicable under the Statute;  but
 with an important and significant difference:  Sec. 14(a)(1)
 specifically provides that "An exclusive representative is responsible
 for representing the interests of all employees in the unit it
 represents without discrimination and without regard to labor
 organization membership" and violation of this obligation, inter alia,
 constitutes an unfair labor practice under Sec. 16(b)(8) of the Statute.
  The first sentence of Sec. 9(a) of the National Labor Relations Act, 29
 U.S.C. 159(a), is substantially similar to the first sentence of Sec.
 14(a)(1) of the Statute;  but the language of the second sentence of
 Sec. 14(a)(1) of the Statute, set forth above, is wholly absent in Sec.
 9(a) of the NLRA.  In addition, there is no unfair labor practice under
 the NLRA comparable to Sec. 16(b)(8) of the Statute.  Consequently,
 under the Statute the statutory command of Sec. 14(a)(1), i.e., a
 specific non-discrimination provision, must be enforced, not merely the
 concept of fair representation developed in the private sector as
 flowing from the right of exclusive representation.
 
    Finally, President Connery's issuance and dissemination to Chapter
 Presidents, including Ms. Green, President of Chapter 121, of his
 memorandum of September 7, 1979, which stated, in part, that
 
          " . . . NTEU will not supply attorneys to non-members to help
       in representational efforts . . . ."
 
 set forth a policy in violation of its obligation under Sec.  14(a)(1)
 of the Statute to represent the interests of all unit employees without
 discrimination and without regard to labor organization membership, and
 the dissemination of such policy to its Chapter Presidents and its
 implementation as a direction from the national President violated Secs.
 16(b)(1) and (8) of the Statute, notwithstanding that the present record
 does not affirmatively show that the contents of the September 7, 1979,
 memorandum was posted, or otherwise communicated to employees.  See,
 National Treasury Employees Union (NTEU), Chapter 202, et al., 1 FLRA
 No. 104, 1 FLRA 909 (1979).  Moreover, a fully set forth in National
 Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 525 (1982), President
 Connery's memorandum of September 7, 1979, was posted elsewhere and was
 implemented elsewhere;  the memorandum of September 7, 1979, stated that
 NTEU policy had not changed, "NTEU will not supply attorneys to
 non-members";  Chapter President Green testified that the memorandum of
 September 7, 1979, was consistent with the advice she had given Mr.
 Wright (Tr. 32);  and counsel for Respondents, representing and
 accepting " . . . the fact that the ultimate decision in Case No.
 3-CO-26 and 37 will be res judicata as to the September 7 Memorandum"
 asserted that, " . . . it would be inefficient and useless to relitigate
 the identical issue a second time in the present case . . . ", pursuant
 to which assertion and representation, proof concerning the September 7,
 1979, memorandum was abbreviated.
 
                                  REMEDY
 
    General Counsel and the Charging Party urge a board posting order,
 i.e., "posting throughout all places of recognition and all related
 National Treasury Employees Union offices" (G.C., Tr. p. 56;  Charging
 Party Brief, pp. 5-6).  Because President Connery's memorandum of
 September 7, 1979, was addressed to, and disseminated to, all Chapter
 Presidents and, obviously, set a uniform policy for NTEU, I had
 recommended a board posting order in National Treasury Employees Union,
 supra, see, 10 FLRA at 521-522;  however, the Authority at that time
 disagreed, stating as follows:
 
          " . . . The Authority concludes, however, consistent with
       previous orders issued in like circumstances . . . that an order
       requiring NTEU to cease and desist from such unfair labor
       practices and to post notices only where the unlawful conduct was
       shown to have occurred will best effectuate the purposes and
       policies of the Statute.  Thus, while the record indicates that
       NTEU's conduct in this case was intended to test whether its
       nationwide representation policy is inconsistent with the
       requirements of the Statute . . . there is no basis for concluding
       that NTEU will continue to apply such policy here found to
       conflict with section 7114(a)(1) of the Statute at any other
       locations after the issuance of this Decision.  Therefore, the
       Judge's recommended order shall be modified accordingly" (10 FLRA
       at 522).
 
    Here, Respondents specifically refused to comply with the Authority's
 decision in National Treasury Employees Union, supra, after its issuance
 and, although I am aware that NTEU has appealed that decision, it is
 plain that unless an appropriate broad order is issued, inter alia, to
 require that the policy stated in the September 7, 1979, memorandum be
 withdrawn and that notice of such withdrawal be given broadly to all
 employees in all units in which NTEU holds exclusive representation,
 there will be lasting and continuing interference, coercion, and
 restraint as the result of the outstanding statement of NTEU policy
 which NTEU has expressly refused to abate in defiance of the Authority's
 prior decision.  Accordingly, I conclude that a broad posting order is
 fully justified.
 
    Accordingly, having found that Respondents violated Secs. 16(b)(1)
 and (8) of the Statute, it is recommended that the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
 Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby
 orders that the National Treasury Employees Union and the National
 Treasury Employees Union Chapter 121 shall:
 
    1.  Cease and desist from:
 
          (a) Affording differing standards of employee representation to
       employees in units of exclusive recognition solely on the basis of
       whether such employees are members of the National Treasury
       Employees Union.
 
          (b) Interfering with, restraining, or coercing unit employees
       in the exercise of their right to refrain from joining, freely and
       without fear or penalty of reprisal, the National Treasury
       Employees Union, the National Treasury Employees Union, Chapter
       121, or any other labor organization.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing unit employees in the exercise of their
       rights assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) National Treasury Employees Union, by its President, shall
       forthwith notify all National office officials, including its
       legal staff, and each Chapter President, in writing, that the
       National Treasury Employees Union's policy has changed;  that the
       National Treasury Employees Union will supply attorneys to
       non-members to help in representational efforts on the same basis
       as it supplies attorneys to members to help in representational
       efforts;  and that the statement in President Connery's memorandum
       dated September 7, 1979, to the contrary is hereby withdrawn and
       rescinded.
 
          (b) National Treasury Employees Union will represent the
       interests of all employees in all Units it represents without
       discrimination and without regard to labor organization
       membership.
 
          (c) Post at its National Headquarters, at the local business
       office of each of its Chapters, and at each agency or activity,
       including but not limited to Department of the Treasury, Bureau of
       Alcohol, Tobacco and Firearms, for which the National Treasury
       Employees Union, and/or any Chapter of the National Treasury
       Employees Union holds exclusive recognition, and at all places
       where notices to members and other employees are customarily
       posted, copies of the attached notice marked "Appendix", on forms
       to be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms, they shall be signed by the President of
       the National Treasury Employees Union and they shall be posted and
       maintained for 60 consecutive days thereafter in conspicuous
       places, including all places where notices to members and the
       other employee are customarily posted.  The National Treasury
       Employees Union shall take reasonable steps to insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (d) Submit appropriate signed copies of such Notices to the
       Director, Bureau of Alcohol, Tobacco and Firearms, Washington,
       D.C.; and, upon request, to an appropriate officer of each other
       agency or activity for which the National Treasury Employees Union
       and/or any Chapter of the National Treasury Employees Union holds
       exclusive recognition, for posting in conspicuous places where the
       respective unit employees are located, where they shall be
       maintained for a period of 60 consecutive days from the date of
       posting.
 
          (e) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
       2423.30, notify the Regional Director of Region VI, Federal Labor
       Relations Authority, whose address is:  P.O. Box 2640, Dallas,
       Texas 75221, in writing, within 30 days from the date of this
       Order, as to what steps have been taken to comply herewith.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  July 15, 1983
    Washington, DC
 
 
 
 
 
                                 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
 STATUTE WE
 HEREBY NOTIFY ALL MEMBERS AND EMPLOYEES OF ALL UNITS FOR WHICH
 THE
 NATIONAL TREASURY EMPLOYEES UNION, AND/OR ANY CHAPTER OF THE
 NATIONAL
 TREASURY EMPLOYEES UNION, HOLDS EXCLUSIVE RECOGNITION, THAT:
 
    WE WILL NOT afford differing standards of employee representation
 solely on the basis of whether such employees are members of the
 National Treasury Employees Union.
 
    WE WILL NOT interfere with, restrain, or coerce unit employees in the
 exercise of their right to refrain from joining, freely and without fear
 or penalty or reprisal, the National Treasury Employees Union, the
 National Treasury Employees Union, Chapter 121, or any other labor
 organization.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce unit employees in the exercise of their rights assured by the
 Statute.
 
    WE HEREBY NOTIFY all members and all employees in all units in which
 we hold exclusive recognition that the National Treasury Employees
 Union's policy has changed;  that the National Treasury Employees Union
 will supply attorneys to non-members to help in representational efforts
 on the same basis as it supplies attorneys to members;  and that the
 statement in President Connery's memorandum, dated September 7, 1979, to
 the contrary is hereby withdrawn and rescinded.
 
    WE WILL represent all employees in units of exclusive recognition
 without discrimination and without regard to labor organization
 membership.
                                       (Labor Organization)
 
    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 of the Federal Labor Relations Authority, Region VI,
 whose address is P.O. Box 2640, Dallas, Texas 75221 and whose telephone
 number is (214) 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See Respondent's brief at 25-27.
 
 
    /2/ The Authority is empowered to "require an agency or a labor
 organization to cease and desist from violations of this chapter and
 require it to take any remedial action it considers appropriate to carry
 out the policies of this chapter." 5 U.S.C. 7105(g)(3).  See Defense
 Logistics Agency and Defense Logistics Agency, Defense Property Disposal
 Service, Defense Property Disposal Regions, Memphis, Tennessee, Ogden,
 Utah and Columbus, Ohio, 5 FLRA 126 (1981).
 
 
    /3/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(b)(1) will be referred to, simply
 as "16(b)(1)."
 
 
    /4/ On January 13, 1983, NTEU filed a petition for review in the
 United States Court of Appeals for the District of Columbia Circuit and
 the Authority has filed a cross application for enforcement, Case No.
 83-1054.
 
 
    /5/ The charge (G.C. Exh. 1(a)) and Complaint stated that Mr.
 Wright's conversation with Ms. Green occurred "On or about August 17,
 1979", which was a Friday.  Mr. Wright's second conversation with Mr.
 Tobias could not have occurred earlier than the week of August 20-24.
 Obviously, there was a very short time frame between the date of Mr.
 Tobias' conversation with Mr. Connery concerning Mr. Wright's request
 for representation and Mr. Connery's issuance of his memorandum of
 September 7, 1979, in which he flatly stated that NTEU will not supply
 attorneys to non-members;  not that NTEU would supply attorneys to
 non-members in meritorious cases.  Moreover, President Connery's
 memorandum states that NTEU policy has not changed, "NTEU will not
 supply attorneys to non-members . . . ", by which, in context, President
 Connery confirmed that this had been NTEU's policy prior to September 7,
 1979.
 
 
    /6/ Section 10(e) which was substantially the same as Sec. 14(a)(1)
 of the Statute, provided, as material, as follows:
 
          "When a labor organization has been accorded exclusive
       recognition, it is the exclusive representative of employees in
       the unit and is entitled to act for and to negotiate agreements
       covering all employees in the unit.  It is responsible for
       representing the interests of all employees in the unit without
       discrimination and without regard to labor organization membe