17:0862(115)CO - Service Employees International Union Local 556 and Patsy K. Paige; Service Employees International Union Local 556 and Navy, Navy Exchange, Pearl United States Naval Base, Pearl Harbor, HI -- 1985 FLRAdec CO



[ v17 p862 ]
17:0862(115)CO
The decision of the Authority follows:


 17 FLRA No. 115
 
 SERVICE EMPLOYEES INTERNATIONAL 
 UNION, LOCAL 556, AFL-CIO 
 Respondent
 
 and 
 
 PATSY K. PAIGE 
 Charging Party
 
                                            Case No. 8-CO-37
 
 
 SERVICE EMPLOYEES INTERNATIONAL 
 UNION, LOCAL 556, AFL-CIO 
 Respondent
 
 and 
 
 UNITED STATES DEPARTMENT OF THE 
 NAVY, NAVY EXCHANGE, PEARL 
 UNITED STATES NAVAL BASE 
 PEARL HARBOR, HAWAII 
 Charging Party
 
                                            Case No. 8-CO-38
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled consolidated proceeding, finding that the Respondent had
 engaged in the unfair labor practices alleged in the complaints, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Respondent and the General Counsel
 filed exceptions to the Judge's Decision.
 
    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 recommendations as modified herein.
 
    With regard to the appropriate remedy for the violations found in
 Case No. 8-CO-37, the Authority agrees with the Judge that it is not
 material that the Union may have decided that the grievances or
 statutory appeals at issue were lacking in merit, as the Union had
 interjected itself into the grievance process, and had refused to assist
 the employees only because of their non-member status.  At the same
 time, we also agree with the Judge, in the circumstances of this case,
 that a backpay remedy is not warranted, noting particularly the Judge's
 conclusion that "the weight of the evidence does not indicate that
 intervention by the Union would have resulted in the substantive relief
 sought by the grievant." Hines v. Anchor Motor Freight, 424 U.S. 554, 91
 LRRM 2481 (1976).  We do not agree, however, that the Union should pay
 for "legal representation, of the employees' choice." The facts of this
 case do not in our view warrant, and no party seeks, such an order.
 Rather, we will order that the Union provide representation, by its own
 or outside legal counsel if appropriate, to the employees if they choose
 to seek a waiver of time limits under either the negotiated grievance
 procedure or any statutory appeals procedures available to them to now
 file grievances or appeals.
 
    With regard to Case No. 8-CO-38, the Authority agrees with the
 Judge's conclusion that the Union violated section 7131(b) of the
 Statute.  While the solicitation in this case was undertaken by a person
 who was a full-time Union representative and not an employee within the
 meaning of the Statute, the record reveals that the Union representative
 specifically had requested duty time from management for four employees,
 resulting in overtime payments for two, to discuss the employees'
 concerns with their conditions of employment, and the Union
 representative used this time for another purpose, the solicitation of
 Union membership.  In this regard, the Statute requires that "any
 activities" by an employee relating to internal union business,
 "including the solicitation of membership," be on nonduty time.  /1/ The
 requirement applies to an employee's use of duty time and, as here,
 whenever a Union representative meets with employees on their duty time
 for such purposes.  /2/ Since the Union knowingly violated the spirit
 and letter of section 7131(b), the Authority concludes, in agreement
 with the Judge, that the Union thereby violated section 7116(b)(1) and
 (8) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Service Employees International Union, Local
 556, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
    (a) Conditioning representation under the parties' collective
 bargaining agreement of non-members on their joining the Service
 Employees International Union, Local 556, AFL-CIO.
 
    (b) Telling employees in the bargaining unit that it will not process
 grievances pursuant to the contractual grievance procedure because of
 their non-membership in the Union.
 
    (c) Refusing to process grievances of bargaining unit employees
 because they are not members of the Service Employees International
 Union, Local 556, AFL-CIO.
 
    (d) Soliciting Union membership on employees' duty time.
 
    (e) In any like or related manner interfering with, restraining, or
 coercing any employee in the exercise of the rights assured them by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Represent the interests of all employees in the bargaining unit
 without regard to Union membership.
 
    (b) Upon request, provide employees Patsy K. Paige, Miriam Gutowski,
 Marcela Santiago and Earl Kamanu with Union representation, by its own
 or outside legal counsel if appropriate, to allow them to seek a waiver
 of time limits either under the negotiated grievance procedure or
 applicable statutory appeals procedures, so that they might seek to
 process their grievances or file statutory appeals, and provide them
 whatever services the Union would have provided in this matter had it
 not acted discriminatorily.
 
    (c) Post at its business offices and its normal meeting places,
 including all places where notices to members, and to employees of the
 Navy Exchange, Pearl, United States Naval Base, Pearl Harbor, Hawaii,
 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 Service
 Employees International Union, Local 556, AFL-CIO, or his designee, and
 they shall be posted and maintained for 60 consecutive days thereafter,
 in conspicuous places, including bulletin boards and all other places
 where Union notices to members and unit 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, Region VIII, 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., May 8, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                 NOTICE TO ALL MEMBERS AND OTHER 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
 WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
 
 WE WILL NOT condition representation under the parties' collective
 bargaining agreement of non-members on their joining the Service
 Employees International Union, Local 556, AFL-CIO.  WE WILL NOT tell
 employees in the bargaining unit that the Service Employees
 International Union, Local 558, AFL-CIO, will not process grievances
 pursuant to the contractual grievance procedure because of their
 non-membership in the Union.  WE WILL NOT refuse to process grievances
 of bargaining unit employees because they are not members of the Service
 Employees International Union, Local 556, AFL-CIO.  WE WILL NOT solicit
 Union membership on employees' duty time.  WE WILL NOT, in any like or
 related manner, interfere with, restrain, or coerce any employee in the
 exercise of the rights assured them by the Federal Service
 Labor-Management Relations Statute.  WE WILL represent the interests of
 all employees in the bargaining unit without discrimination and without
 regard to Union membership.  WE WILL, upon request, provide employees
 Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu with
 representation, by our own or outside legal counsel if appropriate, to
 allow them to seek a waiver of time limits, either under the negotiated
 grievance procedure or applicable statutory appeals procedures, so that
 they may seek to process their grievances or file statutory appeals, and
 provide them whatever services the Union would have provided in this
 matter had it not acted discriminatorily.
                                       (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 its provisions,
 they may communicate directly with the Regional Director of the Federal
 Labor Relations Authority, Region VIII, whose address is:  350 South
 Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose
 telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    E. A. Jones, Esq.
    For the General Counsel
 
    Eric A. Seitz, Esq.
    For the Respondent
 
    Robert F. Griem, Esq.
    For the Activity
 
    Before:  ELI NASH, JR., Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter
 called the Statute), as a result of an unfair labor practice
 Consolidated Complaint and Notice of Hearing issued May 12, 1981 by the
 Regional Director, Region 8, Federal Labor Relations Authority, Los
 Angeles, California.
 
    The Consolidated Complaint alleges that Service Employees
 International Union (hereinafter called the Union) violated section
 7116(b)(1) and (8) of the Federal Labor Management Relations Statute
 (hereinafter called the Statute) by telling certain employees that the
 Union would not represent them in connection with their
 reduction-in-force unless they joined the Union;  by telling employees
 that it had been instructed that employees could not file a grievance
 until they joined the Union;  by not filing a grievance on behalf of the
 involved employees;  and, by soliciting employees to join the Union
 while they were on duty status.  Respondent's Answer denied the
 commission of any unfair labor practices.
 
    A hearing was held in this matter before the undersigned in Honolulu,
 Hawaii.  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.  All parties submitted timely briefs
 which have been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact and
 conclusions.
 
                             Findings of Fact
 
    The Activity operates two gas stations at the Pearl Harbor Naval
 Base.  Prior to January 1981, one of the stations was fully automated
 while the other was a self-service station with lane attendants who
 collected cash from customers.  The self-service station employed four
 employees in the NA-2/3 Mobile Equipment Services job classification.
 They were Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl
 Kamanu.
 
    In December 1980, the Activity automated the self-service station.
 Since the automated station did not involve either servicing cars or
 collecting cash in the lanes, the Activity decided that it no longer
 needed employees in the Mobile Equipment Service classification, the
 positions occupied by Paige, Gutowski, Santiago and Kamanu.  Instead,
 the Activity decided that it would operate the newly automated station
 with a lower paying classification, PS-2 checker/cashier, thus requiring
 a reorganization and reduction-in-force.
 
    After making its decision to reorganize and conduct a
 reduction-in-force, the Activity, as is required by the collective
 bargaining agreement, Article 19, notified the Union by letter of its
 intention to conduct a reorganization.  /3/ Union vice president Gregory
 Elliot acknowledged receipt of this notification.  Elliot testified that
 he was contacted in early January 1981 about the reduction-in-force in
 the gas station, and that he then contacted Exchange Manager Gantz with
 a request to negotiate on the retention of credits, an area which the
 parties had not successfully resolved since 1979.
 
    As provided in Article 19, Section 5 of the collective bargaining
 agreement, the four affected employees were notified, following the
 notification to the Union, on January 19, 1981, by a General
 Reduction-In-Force Notice, that each could be subject to a
 reduction-in-force by virtue of the reorganization of the self-service
 station.  The General Reduction-In-Force Notice stated that the proposed
 action was being taken because of "a reorganization of the Service
 Station due to conversion to fully automated gas lanes".  Each employee
 was given the general notice in the presence of a Union shop steward.
 The notice also stated that the employee could be terminated, but
 advised that each would receive a specific notice at least five calendar
 days prior to termination, and that at that time each would be advised
 of his or her job and appeal rights.
 
    Following receipt of the general reduction-in-force notices the
 affected employees Paige, Gutowski, Santiago and Kamanu, along with a
 secretary, Sharon Smith and Union business representative Debbie Page
 /4/ and shop steward Robert Goroza met with Exchange Manager Gantz, Gas
 Station Manager Chun and a gas station supervisor, Linda Long on January
 21, 1981.  This meeting was apparently called to discuss the general
 reduction-in-force notices of January 19, 1981.  It is not clear whether
 the Union attended this meeting to assist these employees, since Article
 19 of the collective bargaining agreement provides that the Union will
 provide assistance in communicating reasons for a reduction-in-force to
 affected employees.  What is clear is that the Union, before the meeting
 ended, assumed a representational role.  Exchange Manager Gantz
 initially explained why the reduction-in-force was necessary and assured
 the affected employees that they would have first consideration for
 filling the new full-time PS-2 checker/cashier jobs at the automated
 station.  Sharon Smith, who was unaffected by the reorganization,
 attempted to ask questions on behalf of the four employees.  However,
 Union business representative Page inquired whether the employees wanted
 Smith or the Union to represent them concerning the reduction-in-force.
 Since the employees selected the Union, Smith was required by business
 representative Page to leave the meeting prior to its ending.
 
    At the conclusion of the meeting, business representative Page
 requested and received permission to meet alone with the four employees
 and Union steward Goroza.  After Activity representatives had departed,
 Page, according to the four employees, stated that assisting them would
 require "a lot of time after hours and on weekends to research" other
 avenues that might be taken to help the employees.  Business
 representative Page then told the four employees that if they wanted her
 to help them, one of them would have to join or "rejoin" the Union.
 Page added that they would have five days to join the Union and that
 they could get the necessary papers from steward Goroza.  In response to
 a question concerning the cost of membership Page informed them that new
 members paid $15.00 while renewing membership cost $50.00.
 
    Supervisor Long's testimony corroborates that a fee was mentioned for
 Union membership during the meeting.  Long stated that, after the
 meeting, she overheard a heated argument involving the four employees,
 Sharon Smith, and steward Goroza concerning what had happened in the
 meeting with Page.  According to Long, she overheard them arguing over
 the $50.00 they were told they would have to pay for the Union to
 represent them.  She also overheard someone say that the contract was
 supposed to cover them up to arbitration.  Long broke up this gathering
 and told the employees to follow the proper procedures if they wanted to
 talk to Goroza.
 
    Union business representative Page's recollection of the meeting
 differs.  According to Page, she explained to the employees that the
 reduction-in-force procedures had to be followed and that, if they were,
 it would take a lot more investigating to look into the matter.  Page
 further states that she told employees that the Union would be looking
 into the reasons behind the reorganization, that the question had
 already been raised in the Union office, and that a Union vice president
 was looking into it.  As already stated, vice president Elliot's
 testimony confirms the Union's awareness of the proposed
 reduction-in-force.  Page testified that she told the employees that if
 they wanted the Union to represent them, they would have to fill out a
 representation form and that they had five days to fill out this form.
 Page also testified that a gentleman inquired if the employees had to be
 members of the Union for the forms to be processed, but recalls only
 that she probably responded, "(T)he Union strives on membership and we
 will be more than happy to have (you) become members." In conjunction
 with this question, Page also recalls the mention of fees for joining
 and rejoining the Union.
 
    Union business representative Page further testified that, prior to
 processing a case, the Union representative or first line shop steward
 must have a letter of representation which is signed authorizing the
 Union to proceed.  This letter of representation is required of members
 and nonmembers alike.  There is no indication from the record that the
 employees confused this letter of representation with an authorization
 to join the Union.
 
    Business representative Page also testified that at the time of the
 January 21, 1981, meeting she felt a grievance could not be filed
 although she did not explain this to the employees.  Clearly, Page did
 not inform these employees that the matter could not be handled under a
 statutory appeals procedure, or that it could not be handled under the
 negotiated grievance procedure as is raised by vice president Elliot in
 his later testimony.  Page states that she told the employees that the
 Union had seven days to appeal or take action on the General
 Reduction-In-Force Notice of January 19, 1981-- leaving five days to
 sign a representation form, but later admitted that there was no
 pressing need on January 21, 1981, for signatures on authorization forms
 within five days.  Her statement apparently left the four employees with
 the notion that this was a matter which could be handled under the
 grievance machinery and further confused the issue.  In addition, Page
 admitted that the contract does not require a signature on an
 authorization form as a prerequisite to filing a grievance.  Page also
 acknowledged that the contract permits grievances on any employee
 employment-related dissatisfaction.
 
    A review of the collective bargaining agreement does not disclose
 whether a reduction-in-force is or is not subject to the grievance
 procedure of Article 28.  Further, grade and pay retention matters
 resulting from a reduction-in-force are normally appealable to the
 Office of Personnel Management under a statutory appeals procedure
 rather than through the grievance machinery.  However, certain matters
 relating to reductions in force may be handled under the grievance
 machinery, as is pointed out later.
 
    The meeting between Page and the four employees lasted about 15
 minutes, and although Gutowski and Santiago had clocked out prior to the
 meeting, employees Paige and Kamanu were on the clock throughout both
 meeting with Activity and Union representatives.  Since Paige and Kamanu
 were on the clock during these meetings, business representative Page
 spoke with supervisor Long after the meetings, telling her that the two
 employees should be paid overtime for the meetings.  During the meeting
 with the employees, business representative Page also told employees
 Paige and Kamanu that she would make sure that they were paid for the
 time spent in the meetings that afternoon, and they were indeed paid
 overtime for the meetings.
 
    Based on the credited testimony of the four affected employees, which
 is partially corroborated by the testimony of supervisor Long, it is
 found that Union business representative Page told these employees that
 if they wanted the Union to help them concerning the reduction-in-force
 they would have to join or rejoin the Union, and that the cost,
 depending on whether they joined or rejoined, would be either $15.00 or
 $50.00.  It is also found, that the record establishes that Union
 business representative Page solicited membership of these employees
 while they were on the clock.
 
    Later on the afternoon of January 21, 1981, Paige went to supervisor
 Long to inquire about filing a grievance.  Long simply instructed Paige
 to follow the contract procedures.  Paige then went to Union steward
 Goroza, and obtained from him a blank grievance form.  As noted below,
 the contract procedure would indeed allow Paige to process any grievance
 without Union intervention.
 
    Thereafter, Paige talked to her three fellow employees about filing a
 grievance for the group.  In addition, the four employees conferred and
 agreed to each chip in enough money for Kamanu to join the Union since
 business representative Page had said she would represent them if one of
 them was in the Union.  Kamanu testified that he found out about the
 grievance after it had been turned down by the Union.  Later, when he
 learned that the Union was not going to help them, Kamanu told the other
 three that there was no sense in joining.  For whatever reasons, none of
 the employees joined the Union.
 
    Paige then drafted a grievance dated January 22, 1981 based on the
 January 21, 1981 meeting with Exchange Manager Gantz.  The nature of the
 grievance was described as, "company is planning on adding more
 employees, which will be doing the same work at less pay.  Also Mr.
 Gantz has no answers to our questions.  But wants us to take a $1.14
 drop in pay." Paige's grievance requested the following corrective
 action:  "If I am doing the same work, I want the same pay." In essence,
 the grievance involved grade and salary retention, and as already noted,
 there is a serious question whether that aspect could have been
 processed under the grievance machinery.
 
    Paige then tried unsuccessfully to contact business representative
 Page.  Failing this, Paige requested shop steward Goroza to submit the
 grievance to business representative Page for her.  Goroza took the
 grievance and said he would try to reach Page.  However, Goroza
 apparently did not talk to Page, but instead took the grievance to chief
 steward Lynn Mata who told him she could not take it because the
 employees had not joined the Union.  Goroza returned the grievance to
 Paige and told her what Mata had said.
 
    Supervisor Long corroborates Paige, testifying that she overheard
 Paige and Goroza arguing about what Mata had said-- that since none of
 them joined the Union, they were not going to be represented by the
 Union.  Since this incident occurred at the gas station, Long asked
 Goroza what was going on.  Goroza responded that he had just returned
 from Mata who had instructed him to return the grievance to Paige
 because the four employees had not joined the Union and paid the fees.
 Long then instructed the employees to return to work.
 
    Based on the foregoing, it is found that chief steward Mata did in
 fact refuse to process the Paige grievance because none of the affected
 employees were Union members and that the employees were told that their
 lack of membership was the reason their grievance could not be
 processed.
 
    The grievance form also states that it was submitted to a "Manager"
 on January 23, 1981.  However, there is no record evidence that it was
 ever received or processed by any Activity official.  In fact, Gantz on
 recross examination concedes that, "nothing had happened to these
 employees at that point so I don't see how they could have filed an
 appeal." 5 C.F.R. 351.901 permits appeals by "(a)n employee who has been
 affected by a reduction in force action" to the Merit Systems Protection
 Board.  However, there is no indication that these employees were ever
 informed of any appeal rights.
 
    The collective bargaining agreement provides in Section 7 of Article
 28 that an employee may present a grievance without intervention by the
 Union.  /5/ If indeed the grievance had been presented to a management
 official, as the grievance form suggests, it should have been processed
 without Union assistance.  While this may be true, it is found that even
 if management did not process the grievance, the Union would not be
 relieved of its responsibility to represent these employees,
 particularly since it initially sought to represent them and its reason
 for not doing so was that these employees were not Union members.
 
    Subsequently, Paige informed the other three employees of the Union's
 refusal to accept the grievance.  Paige also inquired of supervisor Long
 what other options were available since the Union had refused to assist
 because they had not joined.  Supervisor Long checked with Exchange
 Manager Gantz and gave Paige the telephone number of the local agent for
 the Federal Labor Relations Authority.  Apparently, neither Long nor
 Gantz suggested that the grievance could be processed without Union
 intervention.  Paige thereafter contacted the local Authority agent and
 filed the instant unfair labor practice charge on February 11, 1981,
 prior to implementation of the reduction-in-force.
 
    Around March 31, 1981, the reorganization of the gas station was
 implemented.  There is no evidence to suggest that any further grievance
 was filed or that the employees sought further assistance of the Union
 after the implementation.  As a result of the reorganization, employee
 Santiago submitted her resignation and was rehired in the laundry, in
 the dry-cleaning plant;  employee Gutowski exercised her retreat right
 to a presser position in the laundry;  employee Kamanu was hired as a
 cashier/checker in the newly automated gas station;  and, employee Paige
 went on maternity leave beginning in April 1981, but ultimately returned
 to a cashier/checker position at the newly automated station.
 
    According to the Union's vice president Gregory Elliot, he was, as
 previously noted, aware of the reduction-in-force in early January 1981
 and at that time he contacted Exchange Manager Gantz regarding
 negotiations.  Gantz does not recall a specific contact, but assumes
 there was some contact with the Union concerning the reorganization.
 After the unfair labor practice charge was filed in early February 1981,
 Elliot again contacted Gantz concerning the reduction-in-force because
 he was concerned about possible financial liabilities of the Union.
 Elliot states that he informed Gantz of his concern with respect to the
 grade and pay retention and the way employees would be placed in the
 PS-2 positions.  According to Elliot, Gantz told him that it was a
 reorganization and that was the way it was going to be handled.  Elliot
 allegedly argued that the matter should be handled as a reclassification
 because of the change of duties, but Gantz responded that the Exchange
 was not going to give them the benefit of grade and pay retention.
 Gantz recalls that he had contact with the Union concerning the
 reduction-in-force following the January 21, 1981 meeting, but does not
 recollect the exact nature of these meetings.  I credit Elliot in
 finding that the Union indeed contacted Activity management, in both
 January and February concerning the reduction-in-force, but was
 unsuccessful in its attempts to negotiate concerning the matter.
 
    Elliot also testified that his research on the matter revealed that
 the only issue involved was whether the Activity's action was a
 reorganization or a reclassification.  Certainly this is a matter about
 which the parties disagreed and the grievance machinery of the
 collective bargaining agreement could have been brought into play to
 resolve this difference in understanding.  Nonetheless, Elliot states
 that the issue of pay could not be handled under the grievance procedure
 and that there were no regulations regarding what would happen to an
 employee moving between pay schedules in non-appropriated fund
 operations.  Finally, Elliot testified that no grievance was filed
 concerning the actual implementation of the reduction-in-force because
 the Civil Service Reform Act provisions applied only to employees
 covered under the crafts and trades pay schedule and do not apply to the
 affected employees, and that the provisions of the Civil Service Reform
 Act concerning a (non-appropriated) employee's entitlements to the same
 pay cannot be addressed under a grievance procedure or under any appeals
 procedure.  /6/
 
                        Discussion and Conclusions
 
    Section 7114(a)(1) of the Statute provides that a labor organization
 is "responsible for representing the interests of all employees in the
 unit it represents without discrimination and without regard to labor
 organization membership." Furthermore, the doctrine that an exclusive
 representative's statutory authority to represent all members of a
 designated unit includes a statutory obligation to serve the interests
 of all members of that unit without arbitration or discrimination, and
 to exercise its discretion with complete good faith and honesty to avoid
 arbitrary conduct, has long been accepted by the Supreme Court.  Vaca v.
 Sipes, 386 U.S. 171 (1967).
 
    The Union insists that the General Counsel has not produced any
 evidence that it failed or refused to fulfill its obligation of fair
 representation to the four employees herein.  The Union argues that from
 the time it first learned of the employer's planned reorganization, it
 expended considerable effort, first investigating and then opposing the
 proposed reduction-in-force.  Further, it states that no grievance was
 filed during January or February 1981 because the Agency was only
 proposing to act and had not taken such action.  After the
 reduction-in-force was implemented, it decided not to file a grievance
 or appeal because it concluded that there was no grievable or appealable
 matter.
 
    Although the grievance here may have been complex and time consuming,
 that alone is not determinative of whether the Union breached its duty
 of fair representation.  The statutory obligation of an exclusive
 representative to represent all members of a designated unit is breached
 when conduct by the Union is arbitrary, discriminatory, or in bad faith,
 Vaca v. Sipes, supra.  The credited evidence discloses that Union
 business representative told employees Paige, Gutowski, Santiago and
 Kamanu on January 21, 1981 that the Union would represent them only if
 they joined or "rejoined";  that these employees were given a five day
 limit in which to join the Union;  and that they were going to have to
 pay money to obtain representation.  Page, as the record revealed, is a
 full-time business representative who also acted as a negotiator for the
 present collective bargaining agreement.  Page's own testimony and the
 testimony of others indicated a degree of assertiveness in ordering
 Smith from the January 21 meeting and in seeking overtime for the four
 employees.  Thus, if the Union had no obligation initially to assist
 these employees, Page undertook the obligation to represent them.  In
 assuming this obligation, the Union assumed the concurrent obligation
 not to act in an arbitrary or discriminatory way.
 
    Certainly Page was interested in obtaining and maintaining union
 membership for as she states, the Union "strives" on membership.  The
 conclusion is inescapable that Page used this opportunity to seek to
 obtain additional membership for the Union.  Therefore, full credit must
 be given to the employees accounts, fragmented as they are, that Page
 indeed solicited their membership before the Union would assist them in
 this matter.  Page's credibility is further strained by the action of
 chief steward Mata who later refused to process the Paige grievance
 because the employees were not Union members.  Mata's refusal because
 they had not joined the Union leaves little doubt about the Union's
 motivation here.  In all the circumstances, the only reasonable
 inference to be drawn is that Page actively sought out Union membership
 in exchange for assisting these employees, and when they refused to join
 the Union halted any action by it on the reduction-in-force until after
 an unfair labor practice charge was filed.  Accordingly, it is found
 that the General Counsel established by a preponderance of the evidence
 that Page's attempt to require these employees to join the Union in
 order to obtain Union assistance with their reduction-in-force was
 discriminatory and in violation of section 7116(b)(1) and (8) of the
 Statute.
 
    With respect to the Mata incident, the credited corroborated evidence
 is that the grievance filed by Paige was rejected by the Union and
 returned to Paige for one reason, that these employees were not Union
 members.  It is settled law that a union need not process a frivolous
 grievance. Vaca v. Sipes, supra.  Finding a violation turns not on the
 merits of the grievance, but rather on whether the Union's disposition
 of the grievance was perfunctory or motivated by ill will or other
 invidious considerations.  A deliberate and unjustifiable refusal to
 process a grievance for discriminatory reasons constitutes a violation
 of the Statute.  While the Union argues in mitigation that it was
 engaged in investigation and made proposals concerning the
 reduction-in-force, its investigation of the matter and attempts to
 negotiate appear rather cursory prior to the filing of the instant
 unfair labor practice charge.
 
    Indeed, a labyrinth of regulations concerning reduction-in-force, pay
 and grade retention exist.  See, 5 C.F.R. 351, et al.  Although the
 matter was complicated, it apparently was not impossible to solve as
 Union efforts after the unfair labor practice was filed clearly show.
 Thus, the Union, if it handled the matter at all gave only a superficial
 effort and without question rejected the grievance because these
 employees were not members.  An escalation of its handling of the matter
 after the unfair labor practice was filed does not alter the fact that
 the grievance was initially rejected for membership reasons.
 Furthermore, there is no evidence that its attempts to resolve the
 matter were ever conveyed to any of the affected employees, and they
 were left with the impression that the only reason that their grievance
 was not processed was because they were not Union members.  Such action
 by an exclusive representative in requiring membership in order to
 accept and process a grievance of an employee in a unit which it
 represents is discriminatory and interferes with, restrains and coerces
 employees in violation of section 7116(b)(1) and (8) of the Statute.
 
    With respect to the independent allegation that the Union unlawfully
 solicited membership during work time, the Union does not deny that its
 agents may have engaged in impermissible solicitations, but contends
 only that, if so, the conduct was negligent and unintentional rather
 than deliberate.  It does, however, question whether the employees
 herein were in duty status.  The record disclosed that while two
 employees had clocked out, two others were still on the clock and
 working, and that they were indeed paid overtime at the Union's request
 for participation in the meetings.
 
    The General Counsel contends that section 7131(b)(7) precludes the
 use of official time by a union for conducting internal union business
 such as soliciting of membership.  There is ample record evidence, as
 noted above, to show that at least two of the affected employees were
 not in a "non-duty" status since they were still on the clock and were
 subsequently paid by the Activity for the time spent at the meeting.  In
 such circumstances, solicitation of these employees for Union membership
 is prohibited by the Statute.  Accordingly, it is found that the Union's
 conduct in soliciting membership from employees in duty status is
 prohibited by section 7131(b) and in violation of section 7116(b)(1) and
 (8) of the Statute.
 
                                The Remedy
 
    Having found that the Union did engage in conduct violative of
 section 7116(b)(1) and (8) of the Statute it is recommended that it
 cease and desist therefrom and take certain affirmative actions designed
 to effectuate the policies of the Statute.
 
    The question of back pay for breach of the duty of fair
 representation by a union has never been considered by the Authority.
 There is no doubt that the Authority is empowered under section
 7105(g)(3) and 7118(a)(7) of the Statute to fashion such a remedy where
 warranted.
 
    The General Counsel argues that the egregious conduct engaged in by
 the Union warrants a remedy requiring that the affected employees be
 made whole for any pay lost as a result of the reduction-in-force
 action, from the date of the reduction-in-force implementation to the
 date the Union secures consideration of the grievance filed by those
 employees, or that the employees affected obtain the position they would
 have obtained had there been no violation by the Union.  I disagree that
 such a remedy is appropriate in this particular matter.
 
    The Supreme Court set out the basic principle for apportionment of
 damages for breach of fair representation in Vaca v. Sipes, supra, as
 follows:
 
          The governing principle then is to apportion liability between
       the employer and the Union according to the damage caused by the
       fault of each.  Thus, damages attributable solely to the
       employer's breach of contract should not be charged to the Union,
       but increases if any in those damages caused by the Union's
       refusal to process the grievance should not be charged to the
       employer.
 
 Thus, where there is a breach of fair representation, only the liability
 for any intervening wage loss or losses which are not the result of an
 employer's discrimination or breach would fall upon the union.
 
    In proposing such a remedy the General Counsel no doubt seeks to
 discourage illegal distinctions between members and non-members, but
 ignores a basic formula running through all breach of fair
 representation questions, that in order to establish legal damages, it
 must be shown that the employee initially suffered from an improper
 action from an employer's breach and that the Union could have secured
 some relief.  Even there, as here, a deliberate and unjustifiable
 refusal to process a grievance is found, there remains a question of
 entitlement, since damages are generally not warranted except where they
 are to compensate for injury suffered.  This record does not establish
 the foregoing.
 
    Contrary to the General Counsel's theory which assumes that the
 matter grieved is meritorious, it is my view, that there must be a
 substantial reason to believe that the Union's breach of its duty
 contributed to any loss which is compensable.  Assignment of fault for
 liability prior to a determination of record that any liability exists
 has several flaws.  First, any damages for which the Union might be
 responsible might well be de minimis.  Secondly, there is no
 indemnification for the Union, if after processing the grievance it
 found to lack merit.  Further, federal sector labor policy would not be
 served by requiring a union to pay damages where the employee would not
 be able to obtain the substantive relief sought by his or her grievance
 or appeal.  /8/ And, finally the Union's action herein did not prevent
 these employees from either filing or pursuing a grievance or statutory
 appeal, on their own, in a timely manner.
 
    The instant record offers no clear and convincing evidence that a
 grievance or appeal would have been successful or would have resulted in
 any of these employees retaining pay or equivalent positions at their
 level prior to the reduction-in-force.  /9/ If anything, the record
 establishes that the servicing of cars and collecting cash, performed by
 these employees in the higher classification was no longer required in
 the automated station.  Under such circumstances, they may well not have
 been entitled to retained pay or grade.  Thus, the weight of the
 evidence does not indicate that intervention by the Union would have
 resulted in the substantive relief sought by the grievant Paige, i.e.,
 same pay for same work, since the work appears from the record to be at
 a lower classification and somewhat different.  Nor does the evidence
 indicate that negotiations with the Activity would have resulted in a
 satisfactory resolution for these employees.  If, however, negotiations
 would satisfy its obligation, the Union contacted the Activity in early
 January before the unfair labor practice charge was filed and sought
 negotiations, but was rebuffed.  Furthermore, as Respondent's
 uncontroverted testimony disclosed, these employees, who are
 non-appropriated fund employees, could well not be covered by any
 grievance or appeal procedures which would require retention of pay or
 grade in a reduction-in-force.  For the Authority to grant such a remedy
 without that determination having been made would be purely speculative.
 
    Here the record establishes only that employees at the automated
 station, after the reorganization, performed lesser work which may or
 may not have required a reduction in pay and grade.  It does not reveal,
 nor is it alleged, that there was either discriminatory treatment of
 these employees by the Activity during the reorganization or that there
 was any mistake in the reduction-in-force.  Such an issue should be
 resolved either through the grievance machinery or through the statutory
 appeals procedure, each of which the Union argues is unavailable.  To
 order back pay prior to that determination would be punitive.
 
    Another difficulty with the General Counsel's proposed remedy, is
 that it overlooks potential liability of the Agency concerning whether
 or not the reduction-in-force was discriminatorily or mistakenly
 conducted.  The record does not reveal nor is it suggested by the
 parties that the reduction-in-force was defective.  If not, there is no
 liability for damages since the fundamental purpose of such a remedy is
 to compensate for injuries suffered as a result of a breach by the
 employing agency and for whatever other losses these employees may have
 suffered as a result of Union discrimination in failing to pursue the
 grievance.  It must be recognized that the decision to reorganize and to
 perform the reduction-in-force was exclusively within the province of
 management and that the Union on its own can neither reinstate these
 four employees nor, since all time limits have expired, grieve or appeal
 the matter unless the Activity or the government agency assigned to
 police the matter now agrees to accept a grievance or appeal.
 Notwithstanding the Union's wrongful conduct, the fact remains that any
 compensable injury for which liability initially exists, would have to
 result from discrimination or a mistake attributable to the employer's
 conduct, not the Union.  Therefore, a determination of what injury was
 suffered must be made before the Union can be ordered to make any
 payment of damages to these employees.  In this regard, cases such as
 Vaca v. Sipes, supra;  Bowen v. United States Postal Service, et al.,
 103 S.Ct. 588 (1983);  Czosek v. O'Mara, 397 U.S. 25 (1970);  Harrison
 v. Chrysler Corp., 558 F.2d 1273, 1279 (1977), all agree that the Union
 is responsible not for damages solely attributable to an employer's
 breach, but only for increases in damages caused by its own breach.
 Such damages include legal fees and intervening wage losses.  This
 record shows neither.  The net result of the General Counsel's proposed
 remedy then would be to require no determination of that liability, but
 require payment of damages by the Union before any determination of
 liability has been made regardless of whether there is a compensable
 injury.  Such a result is incongruous with the general principle that
 the Union is responsible only for damages caused by its own breach since
 no damages have been shown.
 
    The Union alleges that this matter was not subject to the parties'
 grievance machinery or to a statutory appeals procedures due to the
 status of these non-appropriated fund employees.  Indeed, a maze of
 regulations exist concerning reductions in force and pay and grade
 retention.  In taking such a position it shows a bias or
 predetermination which would bar it from further effectively processing
 the matter, even if all time limitations had not expired.  The
 legislative history of the Statute indicates Congress' intent to include
 reduction-in-force coverage under the negotiated grievance procedure,
 absent the parties' exclusion of such coverage.  See Legislative History
 of Federal Service Labor-Management Relations Statute, Title VII of the
 Civil Service Reform Act of 1978, p. 730, 735, 769, November 19, 1979.
 Contrary to the Union's position that these employees were covered
 neither by the negotiated procedure or a statutory appeals procedure, it
 is found that whether the Activity's action was a reorganization or
 reclassification was indeed an area which might have been considered
 under the negotiated procedure, and the Union's refusal once a grievance
 was filed undermined any opportunity for resolution through that
 machinery.  Under the Union's theory that there is no statutory appeal
 procedure or grievance available, these employees have no protection
 against a discriminatory or mistaken reduction-in-force.  As business
 representative Page testified, the grievance procedure was available for
 any employee dissatisfaction.  Since the grievance machinery does not
 preclude grievances concerning reorganizations, it is found that the
 Union could have, at the very least, attempted to process the grievance
 through the procedures agreed to by the parties.
 
    Here the facts are sufficient to establish discrimination by the
 Union which seriously undermined any effort by these employees to
 successfully pursue the grievance or appeal, either on their own or with
 Union assistance.  /10/ The remaining question is, what relief is
 available, if any, for these employee's claim that they have failed to
 secure any relief.  Having answered that their problem might well have
 been resolved, if not remedied favorably to them, through the negotiated
 grievance machinery, and that the matter might have been considered
 under that machinery, it is recommended that the Authority, under the
 broad remedial discretion of section 7118(a)(7)(D), order, in addition
 to a cease and desist order and notice posting, that the Union provide,
 at its expense legal representation, of the employee's choice, to assist
 them in seeking to obtain waivers of time limits, both under the
 negotiated grievance machinery and the statutory appeals procedure, if
 necessary, so that they might process a grievance or appeal relating to
 the March 31, 1981 reduction-in-force, and to provide further services
 which would have been performed by the Union in assisting these
 employees in the reduction-in-force matter, had it not acted
 discriminatorily in refusing to assist in the reduction-in-force or to
 process the Paige grievance.  Finally, it is recommended that the
 Authority retain jurisdiction over this matter in order to reconsider
 the remedy and provide further appropriate remedial provisions should
 they become necessary.
 
    Based on the foregoing, it is recommended that the Authority adopt
 the following:  /11/
 
                                   ORDER
 
    Pursuant to section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
 section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
 2423.29(b)(1), the Authority hereby orders that Service Employees
 International Union, Local 556, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
          (a) Conditioning representation under the parties' collective
       bargaining agreement of non-members on their joining the Service
       Employees International Union, Local 556, AFL-CIO.
 
          (b) Telling employees in the bargaining unit that it will not
       process grievances pursuant to the contractual grievance procedure
       because of their nonmembership in the Union.
 
          (c) Refusing to process grievances of bargaining unit employees
       because they are not members of Service Employees International
       Union, Local 556, AFL-CIO.
 
          (d) Soliciting employees to join the Union while those
       employees are on duty status.
 
          (e) In any like or related manner, interfering with,
       restraining, or coercing any employee in the exercise of the
       rights guaranteed by the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the following affirmative action designed and found
 necessary to effectuate the policies of the Statute:
 
          (a) Advise all employees in the bargaining unit that the
       Service Employees International Union, Local 556, AFL-CIO, will
       represent the interests of all employees in the unit without
       discrimination and without regard to labor organization
       membership.
 
          (b) Upon request, provide employees Patsy K. Paige, Miriam
       Gutowski, Marcela Santiago and Earl Kamanu with a legal
       representative of their own choosing at the Union's expense, to
       allow them to seek a waiver of time limits either under the
       grievance machinery or a statutory appeals procedure so they might
       seek to process their grievance or file a statutory appeal and to
       provide further services which would have been provided by the
       Union had it not acted discriminatorily.
 
          (c) Post at the Activity, Navy Exchange, Pearl, United States
       Naval Base, Pearl Harbor, Hawaii, 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 Union and shall be posted and
       maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including all bulletin boards and other places
       where notices are customarily posted.  Reasonable steps shall be
       taken by the Union to ensure that such notices are not altered,
       defaced, or covered by any other material.
 
          (d) Pursuant to 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region 8, 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.
 
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 Dated:  February 28, 1983
         Washington, D.C.
 
 
 
                                 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
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT condition representation on nonmembers on their joining the
 Service Employees International Union, Local 556, AFL-CIO.  WE WILL NOT
 tell employees in the bargaining unit that the Service employees
 International Union, Local 556, AFL-CIO will not process grievances
 pursuant to the contractual grievance procedure because of their
 nonmembership in the Union.  WE WILL NOT solicit employees to join
 Service Employees International Union, Local 556, AFL-CIO while on duty
 status.  WE WILL NOT, in any like or related manner, interfere with,
 restrain, or coerce any employees in the exercise of the rights
 guaranteed by the Federal Service Labor-Management Relations Statute.
 WE WILL NOT refuse to process grievances of bargaining unit employees
 because they are not members of Service Employees International Union,
 Local 556, AFL-CIO.  WE WILL advise all employees in the bargaining unit
 that Service Employees International Union, Local 556, AFL-CIO, will
 represent the interests of all employees in the unit without
 discrimination and without regard to labor organization membership.  WE
 WILL, upon request, provide employees Patsy K. Paige, Miriam Gutowski,
 Marcela Santiago and Earl Kamanu with a legal representative of their
 own choosing, at the Union's expense, in order to allow them to seek
 waiver of time limits either to process the grievance or under a
 statutory appeals procedure and to provide them whatever services the
 Union would have provided in this matter had it not acted
 discriminatorily.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) 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 8, whose address is:  350
 South Figueroa Street, 10th Floor, Los Angeles, California, 90071, and
 whose telephone number is:  (213) 798-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7131(b) provides:
 
          Sec. 7131.  Official time
 
                                .  .  .  .
 
          (b) Any activities performed by any employee relating to the
       internal business of a labor organization (including the
       solicitation of membership . . .) shall be performed during the
       time the employee is in a nonduty status.
 
 
    /2/ See American Federation of Government Employees, Local 1778,
 AFL-CIO, 10 FLRA 346, 351 (1982);  American Federation of Government
 Employees, AFL-CIO, Local 2633 and Veterans , Administration, Regional
 Office, Cleveland, Ohio, 2 FLRA 4, 8 (1979).
 
 
    /3/ Article 19, of the Collective Bargaining Agreement, Reduction In
 Force states, in pertinent part:
 
          Section 1.  This Article pertains only to regular employees.
       Reduction in force shall be defined as an action taken by
       Management to increase the efficiency, economy, or effectiveness
       of operations, causing the release of an employee through either
       separation, demotion, furlough for more than thirty (30) days, or
       reassignment requiring displacement.  Reduction in force also
       occurs when the release of an employee is required due to lack of
       work or funds, reorganization, reclassification due to change in
       duties, or the need to make a place for a person exercising
       reemployment or restoration rights, within the Navy Exchange,
       Pearl Harbor.
 
          Section 2.  The Employer agrees that prior to giving Unit
       members official notice of a proposed reduction in force, the
       Union will be notified in advance of the proposed effective date,
       the number of employees involved, and the types of positions to be
       affected.  The Union shall be provided an opportunity to express
       its views and offer suggestions regarding the proposed
       implementation.  The Union agrees to render assistance in
       communicating the reason(s) for the reduction in force to members
       of the Unit who may be affected.  The Union will have the
       opportunity to be present at all formal meetings held for the
       purpose of issuing reduction-in-force notices.
 
 
    /4/ Page is a full-time business representative with two years
 experience in that position.  Page also participated as a union
 negotiator and signed the present collective bargaining agreement
 between the parties.
 
 
    /5/ The parties collective bargaining agreement in Article 28,
 Grievance Procedures, contains several pertinent provisions concerning
 entitlement to representation, including:
 
          Section 2 C.(2).  Any claimed violation, misinterpretation, or
       misapplication of any law, rule, or regulation affecting
       conditions of employment.
 
          Section 3.  Complaints over the following shall not be
       processed under this procedure.
 
          (e) The classification of any position.
 
          Section 5.  Appeal and Grievance Options.  An aggrieved
       employee affected by discrimination may choose to raise the matter
       under either a statutory appellate procedure or the negotiated
       grievance procedure, but not both.
 
          Section 7.  An employee or a group of employees may present
       grievances to appropriate management officials and have them
       adjusted without the intervention of the exclusive representative.
       . . .
 
 And, the following concerning processing of a grievance:
 
          Section 11.  Step 1.  The employee shall first submit the
       grievance, in writing . . . within ten (10) calendar days after
       the alleged violation. . . .  The appropriate level of Union
       representation at Step 1 shall be the designated Shop Steward. . .
       .  The Department Manager shall issue a written decision to the
       employee not later than ten (10) calendar days after the receipt
       of the grievance. . . .
 
 
    /6/ With regard to this obligation, the United States Code might well
 support this position.  It states:
 
          5 U.S.C. 5342(a)(2)(B) defines prevailing rate as:
 
          an employee of a nonappropriated fund instrumentality described
       by section 2105(c) of this title who is employed in a recognized
       trade or craft, or other skilled mechanical craft, or in an
       unskilled, semiskilled, or skilled manual labor occupation, and
       any other individual, including a foreman and a supervisor, in a
       position having trade, craft, or laboring experience and knowledge
       as the paramount requirement. . .
 
 5 U.S.C. 2105(c) states that nonappropriated fund employees are not
 employees for the purpose of (1) laws (other than subchapter IV of
 Chapter 53 and sections 5550 and 7154 of this title) administered by the
 Office of Personnel Management.
 
 
    /7/ Section 7131(b) of the Statute provides:
 
          Any activities performed by any employee relating to the
       internal business of a labor organization (including the
       solicitation of membership, elections of labor organization
       officials, and collection of dues) shall be performed during the
       time the employee is in a non-duty status.
 
 
    /8/ The Federal Labor Relations Council, found in Department of the
 Interior, Bureau of Reclamation, Yuma Project Office, Yuma, Arizona,
 FLRC No. 74A-52, that the jurisdiction over certain employees appeals,
 particularly a reduction-in-force involved in that case, fell within the
 jurisdiction of the Civil Service Commission and the determination of
 whether employees were entitled to back pay was for exclusive
 determination by the appeals procedure under section 19(d) of the
 Executive Order and not the Assistant Secretary.  The Council held that
 an unfair labor practice complaint may not be used as an alternative
 method for obtaining redress for the employees who properly have access
 to the appeals procedure.  There the Council's rejection seemingly is
 based not on any reluctance to remedy the alleged violations, but
 instead on finding itself without authority to grant such a remedy.  The
 Yuma case, however, does not preclude the Authority from granting a back
 pay remedy here.  The Statute, unlike the Executive Order contains broad
 discretionary language for remedying unfair labor practices including
 section 7117(a)(7)(D) which includes broad authority to take "such other
 action as will carry out the purposes of this chapter".  Thus, the
 Authority is clearly vested with discretion to grant any reasonable
 remedy where it deems such a remedy would effectuate the purposes of the
 Statute.
 
 
    /9/ The private sector cases cited by the General Counsel are
 inapposite. Those cases involve matters where the employer plainly
 disregarded clear-cut contract provisions without objection from the
 exclusive representative and the employees were clearly entitled to make
 whole remedies.  The General Counsel maintains that uncertainty as to
 the potential merit of the grievance should be resolved in favor of the
 victims, not the wrongdoer, since it is the Union's wrongdoing that
 created the uncertainty.  This ar