17:0446(72)CO - AFGE and SSA -- 1985 FLRAdec CO



[ v17 p446 ]
17:0446(72)CO
The decision of the Authority follows:


 17 FLRA No. 72
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Respondent
 
 and
 
 SOCIAL SECURITY ADMINISTRATION 
 Charging Party
 
                                            Case No. 3-CO-20003
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 Charging Party and the General Counsel filed exceptions to the Judge's
 Decision, and the Respondent filed an opposition to the exceptions.
 
    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, the Authority hereby adopts the
 Judge's findings, conclusions and recommendation, only to the extent
 consistent herewith.
 
    The Judge concluded that the Respondent, American Federation of
 Government Employees, AFL-CIO (AFGE), did not violate section 7116(b)(1)
 and (8) of the Statute /1/ by charging non-member employees disparate
 fees to participate in a class action law suit under the Back Pay Act.
 In reaching this conclusion, the Judge found that section 7114(a)(1) of
 the Statute /2/ obliges an exclusive representative to adhere to a
 standard of fair representation only in those proceedings which are in
 the sole control of the exclusive representative by virtue of its
 certification, but does not impose such obligations in those proceedings
 which are available to employees in general, and are supplementary to,
 but not a substitute for, proceedings which are the sole prerogative of
 the exclusive representative.  The Authority does not agree.
 
    The duty of fair representation is not restricted to those
 proceedings under the sole control of the exclusive representative as a
 consequence of its certification.  Rather, when an exclusive
 representative decides to represent unit employees in any matter which
 affects their conditions of employment, it has the duty under section
 7114 of the Statute to represent unit employees fairly, and may not
 discriminate with regard to that representation on the basis of union
 membership.  National Treasury Employees Union and National Treasury
 Employees Union Chapter, 121, 16 FLRA No. 102 (1984), petition for
 review filed sub nom. National Treasury Employees Union v. FLRA, No.
 85-1053 (D.C. Cir., Jan. 25, 1985);  National Treasury Employees Union,
 10 FLRA 519 (1982), aff'd, 721 F.2d 1402 (D.C. Cir. 1983) (encompassed
 within the union's duty under section 7114(a)(1) is the furnishing of
 the services of an attorney on a non-discriminatory basis in removal
 actions, both within the Agency procedures as well as before the Merit
 Systems Protection Board).  Within that duty is the obligation not to
 discriminate on the basis of union membership concerning the fees to be
 charged for the attorney's services in representing unit employees on
 matters affecting their conditions of employment.  /3/
 
    Accordingly, in the instant case, the Authority finds that Respondent
 AFGE, by discriminating between members and nonmembers in assessing
 attorneys' fees for unit employees participating in a class action law
 suit seeking to recover overtime pay, failed to meet its obligations
 under section 7114(a)(1) of the Statute and thereby violated section
 7116(b)(1) and (8) of the Statute.
 
                                   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 American Federation of Government Employees, AFL-CIO shall:
 
    1.  Cease and desist from:
 
    (a) Assessing disparate contingency fees for attorney representation
 in a class action law suit involving entitlement to overtime pay based
 upon membership or nonmembership in the American Federation of
 Government Employees, AFL-CIO.
 
    (b) Interfering with, restraining, or coercing unit employees in the
 exercise of their right to refrain from joining, freely and without fear
 of penalty or reprisal, the American Federation of Government Employees,
 AFL-CIO, 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) Represent all employees in units of exclusive recognition without
 discrimination and without regard to membership in the American
 Federation of Government Employees, AFL-CIO.
 
    (b) Rescind the conditional contingency fee arrangement imposed upon
 employees seeking to join the class action law suit prosecuted by
 Attorney Banov concerning the appropriate calculation of overtime pay
 for employees in the unit exclusively represented by the American
 Federation of Government Employees, AFL-CIO, and make whole any employee
 in the bargaining unit for any loss of money suffered as a consequence
 of the conditional contingency fee arrangement.
 
    (c) Post at its business offices and its normal meeting places,
 including all places where notices to members and employees of the
 Social Security Administration 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 American Federation of Government Employees, AFL-CIO,
 or his designee, and they shall be posted and maintained for 60
 consecutive days thereafter in conspicuous places, including all places
 where notices to members and to other employees are customarily posted.
 Reasonable steps shall be taken 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
 Administrator of the Social Security Administration, Baltimore,
 Maryland, for posting in conspicuous places where the 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 III, 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.  
 
 Issued, Washington, D.C., April 15, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                    NOTICE TO ALL MEMBERS AND EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 17
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
 
 WE WILL NOT assess disparate contingency fees for attorney
 representation in a class action law suit involving entitlement to
 overtime pay based upon membership or nonmembership in the American
 Federation of Government Employees, AFL-CIO.  WE WILL NOT interfere
 with, restrain, or coerce unit employees in the exercise of their right
 to refrain from joining, freely and without fear of penalty or reprisal,
 the American Federation of Government Employees, AFL-CIO.  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
 WILL represent all employees in units of exclusive recognition without
 discrimination and without regard to membership in the American
 Federation of Government Employees, AFL-CIO.  WE WILL rescind the
 conditional contingency fee arrangement imposed upon employees seeking
 to join the class action law suit prosecuted by Attorney Banov
 concerning the appropriate calculation of overtime pay for employees in
 the unit we exclusively represent, and make whole any employee in the
 bargaining unit for any loss of money suffered as a consequence of the
 conditional contingency fee arrangement.
                                       (Union)
 
 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 III, Federal
 Labor Relations Authority, whose address is:  1118 18th Street, NW.,
 Suite 700, Washington, D.C.  20033-0758, and whose telephone number is
 (202) 653-8456.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CO-20003
    Mark D. Roth, Esquire
    For the Respondent
 
    Sharon Prost, Esquire
    For the General Counsel
 
    Irving L. Becker, Esquire
    For the Charging Party
 
    Before:  BURTON S. STERNBURG, Administrative Law Judge
 
                         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 U.S. Code, 5
 U.S.C.Section 7101 et seq., and the Rules and Regulations issued
 thereunder, Fed. Reg. Vol. 45, No. 12, January 17, 1980 and Vol. 46, No.
 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
 
    Pursuant to a charge filed on December 1, 1981, by the Social
 Security Administration (hereinafter called the SSA or Charging Party),
 a Complaint and Notice of Hearing was issued on March 22, 1982, by the
 Regional Director for Region III, Federal Labor Relations Authority,
 Washington, D.C.  The Complaint alleges that the American Federation of
 Government Employees, AFL-CIO (hereinafter called the AFGE, or Union or
 Respondent), violated Sections 7116(b)(1) and (8) of the Federal Service
 Labor-Management Relations Statute (hereinafter called the Statute or
 Act), by virtue of its actions in failing to accord equal representation
 in a class action law suit to unit employees who are not members of the
 Union.  /4/
 
    A hearing was held in the captioned matter on May 12, 1982, in
 Washington, D.C.  All parties were afforded full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The Respondent and the Charging
 Party submitted post-hearing briefs on June 25 and June 23, 1982,
 respectively, which have been duly considered along with the General
 Counsel's closing argument made on the record.  /5/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    Since 1979, the Union has been the exclusive bargaining
 representative in a consolidated unit of SSA employees.  Prior to that
 time the Union had been the exclusive bargaining agent of various
 separate groups of SSA employees located throughout the United States.
 Local 1923 of the Union services the unit employees working at the SSA
 Baltimore, Maryland headquarters.
 
    In 1978, a question arose with respect to whether or not the SSA was
 paying the proper night differential to Baltimore, Maryland, unit
 employees working overtime in the electronic data processing area.  /6/
 
    Upon discovering the alleged underpayment, many of the unit employees
 filed grievances, both individually and through the Union, under the
 grievance procedure of the collective bargaining contract then in
 effect.  At the time of the hearing the grievances had not as yet been
 finally resolved or processed to arbitration.  /7/
 
    Beginning in the spring of 1978, Union and Management representatives
 held numerous meetings wherein the mechanics for processing the
 grievances and/or back pay claims of the affected employees were
 discussed.  Additionally, as a result of the meetings and discussions a
 ruling on the matter was sought from the Comptroller General and
 subsequently a task force was established for purposes of processing
 both the background records and back pay claims of the numerous
 employees involved.
 
    Not being satisfied with the progress of the SSA task force in
 settling the employees' night pay differential grievances and/or claims,
 Mr. Harold Roof, President of Local 1923, who had been representing the
 employees in the discussions of their pending night pay differential
 grievances, contacted Mr. Alan Banov, a private attorney in the latter
 part of 1980, concerning the possibility of filing a civil action in
 U.S. District Court for purposes of obtaining the back pay underlying
 the pending grievances.  /8/
 
    Although not entirely clear from the record, it appears that Mr.
 Banov and Mr. Roof subsequently reached an agreement whereby Mr. Banov
 would represent the SSA unit employees in a class action suit against
 SSA for the night pay differential allegedly due them.  According to the
 testimony of Mr. Banov, it was his original intention to recoup his
 expenses and fee for the law suit solely from the Government.
 Furthermore, according to the testimony of Mr. Banov, prior to November
 1981, when a "consent form" was published in the "Government Standard"
 an official AFGE publication, /9/ he had been circulating a variety of
 consent forms which made no mention whatsoever, or provided for,
 contingency fees if he was successful in the law suit.  /10/
 
    Thereafter, at a date not set forth in the record, Mr. Roof contacted
 Mr. James Rosa, AFGE General Counsel, concerning whether or not the
 Union would be amenable to making a contribution from the Union's Legal
 Rights Fund to the class action suit being handled by Mr. Banov.  The
 Union concluded that the suit was a worthwhile endeavor and voted to
 give Mr. Banov a $5,000 retainer from monies in the Legal Rights Fund.
 
    The November 1981, issue of The Government Standard, an official
 publication of the AFGE carried the following article on page 4:
 
             NIGHT DIFFERENTIAL SUIT MAY AFFECT 10,000 WORKERS
 
          Over 10,000 government employees may be due to recover money
       owed them for night work which they regularly performed during
       scheduled overtime in the last six years.  AFGE is attempting to
       recover the money for its members through a class action suit
       filed in U.S. District Court for the District of Columbia.
 
          The night pay differential suit was originally filed for SSA,
       DHS and Education employees, however, it is now open for all AFGE
       members who believe they qualify for the money under class action
       status.  Washington attorney Alan Banov has been retained by AFGE
       to handle the case called Greenfield v. U.S.A.
 
          Any AFGE member who believes he or she is owed money because
       the government did not pay a 10 percent differential for work
       performed between 6 p.m. and 6 a.m. should complete the form at
       the right.
 
    The form appearing at the right of the article entitled Consent To
 Representation By Law Offices Of Alan Banov In Claiming Backpay From The
 U.S. For Its Failure To Pay Night Pay Differential For Night Work
 Performed On Overtime states in paragraph 4 as follows:
 
          I agree to pay Mr. Banov 5% of any recovery if I am an AFGE
       member now, or 10% if I am a non-member.
 
    With respect to the five and ten percent contingency fee differential
 assessed to members and non-members of the AFGE, respectively, on the
 consent form, both Mr. Banov and Mr. Rosa, in their respective
 testimony, made it clear that the reason for charging different
 contingency fees was the fact that the Union Legal Rights Fund was
 supported by dues paying members of the AFGE and that to charge the same
 contingency fees to members and non-members of the AFGE alike, would
 result in the dues paying members paying a higher cost of the law suit
 since the $5,000 retainer paid Mr. Banov came from the AFGE members
 prior dues payments.
 
    Beginning on or about March 26, 1981, Mr. Banov wrote a number of
 letters to SSA wherein he urged the SSA to pay the night differential
 back pay claims filed by its employees.  The March 26, 1981, letter made
 it clear that in "cooperation with Locals 1923 and 1760, AFGE," Mr.
 Banov was representing SSA's former and present employees.  In a follow
 up May 11, 1981, letter in response to an SSA April 29, 1981, letter,
 Mr. Banov agreed to a meeting with SSA officials to discuss the pending
 night differential pay claims and requested that "Mr. Harold Roof and/or
 Elaine Minnick of Local 1923" be present at the meeting.  In a
 subsequent letter dated June 17, 1981, wherein the results of the
 scheduled meeting were discussed, Mr. Banov demanded that in the future
 whenever SSA deemed it necessary to interview any individual claimant
 with respect to a back pay claim, that he be allowed the opportunity "to
 be present or to send an AFGE representative in his place."
 
    Other correspondence in the record from Mr. Banov to the SSA
 indicates that copies of such correspondence were sent to Mr. James Rosa
 and Mr. Harold Roof of the AFGE.
 
    In the summer of 1981, Mr. Banov filed a class action suit against
 the SSA seeking the payment of the employees night differential pay
 claims.
 
                        Discussion and Conclusions
 
    Inasmuch as the facts do not appear to be in dispute, the paramount
 issue to be resolved is whether or not Mr. Banov's action in charging
 different or higher contingency fees to non-union unit employees denied
 equal representation to such employees in violation of Section
 7116(b)(1) and (8) of the Statute.  /11/
 
    Respondent, which would answer the question in the negative, takes
 the position that inasmuch as it is not the exclusive representative of
 employees in court actions, as opposed to grievance matters which could
 terminate in arbitration at the sole option of the Union, it was under
 no duty to accord equal representation, i.e., identical contingency
 fees, to union and non-union unit members alike.  In support of its
 position the Union relies primarily on the decision of the Ninth Circuit
 in Archer v. Airline Pilots Assn., 102 LRRM 2827;  and District Court
 decisions in Lacy v. Local 287, UAW, 102 LRRM 2847;  Steele v. Brewery
 Workers Local 1162, 102 LRRM 2459, 2485;  Hawkins v. Babcock & Wilcox
 Co., 105 LRRM 3438.
 
    Respondent acknowledges, however, "that where a union has a right,
 derived from law, to represent the employees exclusively in a certain
 class of cases-- i.e., grievances . . . this right imposes a correlative
 duty not to engage in conduct which is arbitrary, discriminatory, or in
 bad faith."
 
    The General Counsel and the Charging Party, on the other hand, would
 answer the question in the affirmative, citing in support of their
 position a number of NLRB cases which were based on the Supreme Court's
 decision in Vaca v. Sipes, 386 U.S. 171, and the Authority's decisions
 in NTEU Chapter 202, 1 FLRA 104 and FASTA, NAGE, 2 FLRA 103.
 
    It is well established and conceded by the Respondent, that where a
 union is the exclusive representative and has the sole access to
 arbitration by virtue of the terms of the collective bargaining
 agreement, the union is under an obligation to accord equal
 representation to all unit members irrespective of union membership or
 allegiance.  Vaca v. Sipes, supra;  Tidewater Virginia Federal
 Employees, MTC, IAM Local No. 441 and Douglas Edwards Burns and Norfolk
 Naval Shipyard, 8 FLRA 47;  Machinist Local 697, 91 LRRM 1529.
 
    However, as noted by the Respondent, where the union, irrespective of
 its status as exclusive representative, does not have sole or exclusive
 control over the access to a particular forum or procedure through which
 an employee seeks redress, the union does not violate its statutory duty
 of fair representation when it fails to assist or process employees
 grievances in such forum.  Archer v. Airline Pilots Association, 102
 LRRM 2829;  International Brotherhood of Workers v. Foust, 442 U.S. 42,
 101 LRRM 2365.
 
    With the above principles of law in mind, I now turn to the
 application of the facts in the instant case to the existing case law.
 
    The record evidence establishes, and I find, that Mr. Banov was
 indeed an agent of the Respondent Union and that in such circumstances
 the Respondent Union was responsible for his actions.  Thus, it is noted
 that Mr. Banov was retained by the Respondent Union to file a class
 action law suit on behalf of the unit employees represented by the
 Respondent because the Union hoped the suit would speed up the
 recoupment of the night pay differential allegedly owing to a number of
 such unit employees.  Thereafter, the arrangement was published in the
 Union's newspaper along with a "consent to representation" form which
 provided for different contingency fees, depending on whether or not the
 affected unit employee was a member of the Union.  Both Mr. Banov and
 Mr. Rosa acknowledged that the different contingency fee schedule was a
 product of their joint thinking and was an attempt to prevent Union
 members being assessed a greater amount of money than their non-union
 counterparts.  If the contingency fees had been identical, Mr. Rosa and
 Mr. Banov were of the opinion that Union members would have been paying
 more money towards the cost of the class action suit, since the $5,000
 retainer came indirectly in part from periodic union dues paid by the
 Union members.  Additionally, the record makes it clear that Mr. Banov
 was acting in behalf of, and in conjunction with, the Union with respect
 to the legal strategy and preparation of the class action law suit.  In
 fact Mr. Banov informed the SSA that there should be no further
 discussions with individual employees concerning the night pay
 differential without either his or the Union's presence.  Finally, Mr.
 Banov acknowledged that he met on a number of occasions with the Union
 representatives for purposes of discussing the status of the case and
 strategy.
 
    Following the retention of Mr. Banov as its agent in the class action
 suit, the Union for all intents and purposes, was in the posture of
 attacking the SSA night differential pay problem on two fronts, i.e.,
 grievance machinery and class action law suit.
 
    Inasmuch as the collective bargaining agreement in effect gave the
 Union the sole access to arbitration, the final step in the grievance
 procedure, it and it alone, controlled the destiny or fate of the
 affected employees and thus according to Vaca v. Sipes and International
 Brotherhood of Workers v. Foust, supra, imposed upon the Union the duty
 and/or responsibility of equal representation of all unit employees,
 irrespective of union membership.
 
    However, such was not the case with regard to the class action law
 suit since employees could join the class action law suit or seek their
 own counsel in a separate law suit without the permission or blessing of
 the Union.
 
    In view of the foregoing conclusions, the question remaining for
 consideration or decision, is whether the Union's institution of the
 class action law suit was so integrally related to the pending
 grievances as to be part and parcel of such action, and thereby imposing
 upon the Union the duty of equal or fair representation.
 
    Had the suit been a substitute for arbitration, which was in the sole
 control of the Union, then it would appear that the question should be
 answered in the affirmative, since the Union would then be precluding
 unit non-union members from equal representation.  However, the record
 facts do not support such a conclusion.  In this respect, the sketchy
 facts in the record indicate that on the basis of the Comptroller's
 decision, there was no dispute as to the merits of the grievances
 concerning the liability of SSA for the night differential pay.  It was
 only the amount, if any, due the employees which remained to be
 computed.  To this end the parties had mutually agreed on a task force
 to investigate the facts underlying each and every claim.  In such
 circumstances, until the research and/or investigation of the many many
 claims had been completed, and a possible dispute arose, there would
 appear to be no need for invoking arbitration.  Accordingly, it appears
 highly unlikely that the class action law suit was intended to be a
 substitute for arbitration.  Rather, it appears that such action was
 merely a vehicle for prodding the SSA to speed up action on the pending
 night differential pay claims which had been filed by both the Union and
 individual employees as grievances.  /12/
 
    In conclusion, I find that it is only those proceedings that are in
 the sole control of the Union by virtue of its certification that impose
 upon the Union the duty of fair representation.  To the extent that a
 Union opts to utilize other routes which are open to all employees and
 not within its sole control, as a supplement, but not a substitute, for
 pending grievance actions, as here, then the Union is not obligated to
 accord equal representation to all employees, irrespective of membership
 in the Union.
 
    Accordingly, I find that the class action suit herein constitutes a
 benefit of union membership as opposed to a right flowing from the
 Union's exclusive status as the collective bargaining representative,
 and conclude that under the circumstances the Union did not deny fair
 representation to the non-union unit employees by retaining an attorney
 to file a class action law suit and allowing the attorney to charge
 different contingent fees depending on whether or not the unit employee
 was a member of the Union.
 
    In view of the above findings and conclusions, it is hereby
 recommended that the Complaint be dismissed in its entirety.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
 Dated:  September 16, 1982
        Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(b) provides in pertinent part:
 
          Sec. 7116.  Unfair labor practices
 
                                .  .  .  .
 
          (b) For the purpose of this chapter, it shall be an unfair
       labor practice for a labor organization--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /2/ Section 7114(a)(1) provides:
 
          Sec. 7114.  Representation rights and duties
 
          (a)(1) A labor organization which has been accorded exclusive
       recognition is the exclusive representative of the employees in
       the unit it represents and is entitled to act for, and negotiate
       collective bargaining agreements covering, all employees in the
       unit.  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.
 
 
    /3/ Compare, American Federation of Government Employees, Local 1778,
 AFL-CIO, 10 FLRA 346, 349 (1982) (wherein the Authority dismissed
 several alleged violations of section 7116(b)(8) of the Statute, finding
 that the General Counsel had failed to meet the burden of proving that
 the union had discriminated against nonmember unit employees with
 workmen's compensation claims since unrebutted testimony indicated that
 all employees with such claims were required to pay their own attorneys'
 fees when claims were appealed beyond the Activity's jurisdiction).
 
 
    /4/ Specifically, the complaint is grounded on the alleged action of
 the Union in retaining an attorney to file a class action suit and
 allowing the attorney to charge unit employees different contingent fees
 based solely upon whether they were members or non-members of the Union.
 
 
    /5/ In the absence of any objection, the Union's Motion of May 26,
 1982, to make three corrections in the transcript, should be, and hereby
 is, granted.
 
 
    /6/ The SSA was then paying employees who worked overtime 10% night
 differential pay based on the regular hourly rate rather than on the
 time and one-half overtime rate.
 
 
    /7/ The collective bargaining agreement provides that arbitration,
 the final step in the grievance procedure, "may only be invoked by the
 Union."
 
 
    /8/ Other than possibly speeding up the disposition or resolution of
 the back pay claims, the record fails to set forth any other advantages
 that may inure to the unit employees by joining in the suit rather than
 awaiting the outcome of the task force set up to determine SSA's back
 pay liability to the individual employees.
 
 
    /9/ The circumstances surrounding this consent form will be discussed
 infra.
 
 
    /10/ Mr. Banov testified that some 900 employees ha