18:0005(2)CO - AFGE Local 916 and DOD, Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK -- 1985 FLRAdec CO



[ v18 p5 ]
18:0005(2)CO
The decision of the Authority follows:


 18 FLRA No. 2
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 916
 Respondent
 
 and 
 
 UNITED STATES DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE AIR FORCE 
 OKLAHOMA CITY AIR LOGISTICS CENTER 
 TINKER AIR FORCE BASE, OKLAHOMA 
 Charging Party
 
                                       Case No. 6-CO-20008
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the complaint, and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  The Respondent filed exceptions with respect 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 recommended Order.  /1/ At issue
 herein is the Respondent's policy of refusing to provide representation
 for non-members in proceedings before the Merit Systems Protection Board
 while providing such representation for members.  As the Authority
 recently noted, "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." American
 Federation of Government Employees, AFL-CIO, 17 FLRA No. 72 (1985).  See
 also 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);  and 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).
 
                                   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, Local
 916, shall:
 
    1.  Cease and desist from:
 
    (a) Affording differing standards of employee representation to
 employees in its unit of exclusive recognition solely on the basis of
 whether such employees are members of the American Federation of
 Government Employees, AFL-CIO, Local 916.
 
    (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, Local 916, 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) Publish in its newspaper, "916 Union Express," a statement
 informing all members of the bargaining unit that its prior published
 statement that only Union members could avail themselves of
 representation by the Union in statutory appeals proceedings, is hereby
 withdrawn and rescinded and inform all unit employees that it will
 represent all bargaining unit employees in statutory appeals proceedings
 without regard to labor organization membership.
 
    (b) Represent all employees in its unit of exclusive recognition
 without discrimination and without regard to membership in the American
 Federation of Government Employees, AFL-CIO, Local 916.
 
    (c) Post at its business office and its normal meeting places, and
 all places where notices to its members and employees of the United
 States Department of Defense, Department of the Air Force, Oklahoma City
 Air Logistics Center, Tinker Air Force Base, Oklahoma, 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 American Federation of Government
 Employees, Local 916, or a designee, and shall be posted and maintained
 for 60 consecutive days thereafter, in conspicuous places, including all
 places where notices to members and 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 United
 States Department of Defense, Department of the Air Force, Oklahoma City
 Air Logistics Center, Tinker Air Force Base, Oklahoma, 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, Region VI, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C. May 14, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                  NOTICE TO ALL MEMBERS OF AND 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 afford differing standards of employee representation to
 employees in our unit of exclusive recognition solely on the basis of
 whether such employees are members of the American Federation of
 Government Employees, AFL-CIO, Local 916.
 
    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, Local 916, or any other labor organization.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce unit employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL publish in our newspaper, "916 Union Express," a statement
 informing all members of the bargaining unit that our prior published
 statement that only Union members could avail themselves of
 representation by the Union in statutory appeals proceedings, is hereby
 withdrawn and rescinded and we will inform all unit employees that we
 will represent all bargaining unit employees in statutory appeals
 proceedings without regard to labor organization membership.
 
    WE WILL represent all employees in our unit of exclusive recognition
 without discrimination and without regard to membership in the American
 Federation of Government Employees, AFL-CIO, Local 916.
                                       (Labor Organization)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director for the Federal Labor Relations Authority, Region VI,
 whose address is:  Federal Office Building, 525 Griffin Street, Suite
 926, Dallas, TX 75202, and whose telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Steven M. Angel, Esquire
    For the Respondent
 
    Elizabeth A. Martinez, Esquire
    For the General Counsel
 
    Lt. Colonel Jerry M. Brasel
    For the Charging Party
 
    Before:  WILLIAM B. DEVANEY, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq., /2/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., concerns Respondent's policy of refusing to
 provide representation for non-members of Respondent in proceedings
 before the Merit Systems Protection Board whereas Respondent provides
 representation for its members in Merit Systems Protection Board
 proceedings.  Such policy is alleged to be in violation of Sec. 16(b)(1)
 of the Statute.
 
    This case was initiated by a charge filed on November 20, 1981 (G.C.
 Exh. 1(a) which alleged violation of Secs. 16(b)(1) and (8) of the
 Statute.  The Complaint and Notice of Hearing issued on November 30,
 1981 (G.C. Exh. 1(d);  alleged a violation only of Sec. 16(b)(1);  set
 the hearing for February 17, 1983, at a time and place to be determined;
  and by Order dated January 28, 1983 (G.C. Exh. 1(b)), the time and
 place of hearing was fixed, pursuant to which a hearing was duly held on
 February 17, 1983, in Oklahoma City, Oklahoma, before the undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to examine and cross-examine witnesses, to
 introduce evidence bearing on the issue involved, were afforded
 opportunity to present oral argument and Counsel for the General Counsel
 and for Respondent presented oral argument.  At the close of the
 hearing, March 17, 1983, was fixed as the date for mailing post-hearing
 briefs and Respondent timely mailed an excellent brief, received on
 February 21, 1983, which has been carefully considered together with the
 closing arguments.  Upon the basis of the entire record, I make the
 following findings and conclusions:
 
                                 FINDINGS
 
    1.  American Federation of Government Employees, AFL-CIO, Local 916
 (hereinafter referred to as "Respondent") in 1964 was recognized as the
 exclusive representative of all civilian employees served by the
 Civilian Personnel Office working at Tinker Air Force Base and Oklahoma
 City Air Force Station, (hereinafter, also, referred to as the
 "Activity"), with certain exclusions more fully set forth in paragraph
 5(a) of the Complaint.  On January 13, 1978, this unit was consolidated
 into a national unit, in Case No. 53-10177(UC), including all
 non-supervisory, non-professional employees at various Air Force
 Logistics Command Facilities, including Tinker Air Force Base, paid from
 appropriated funds and who are serviced by Air Force Logistics Command
 Civilian Personnel Offices, again with certain exclusions more fully set
 forth in paragraph 5(b) of the Complaint.  In 1976, Respondent and the
 Activity executed a collective bargaining agreement effective until July
 21, 1979.  On, or about, April 3, 1979, Air Force Logistics Command and
 the national office American Federation of Government Employees, AFL-CIO
 (hereinafter referred to as "AFGE") executed a collective bargaining
 agreement covering the consolidated unit.  Respondent, at all times
 material, has been, and is, the agent of AFGE for purposes of
 representation of employees, collective bargaining and administration of
 the collective bargaining agreement of April 3, 1979.
 
    2.  In September, 1981, Respondent published in its newspaper, "916
 Union Express," an article which described how a paid union
 representative had won an employee's reinstatement in a Merit Systems
 Protection Board case.  As part of this article, Respondent stated that
 only members could avail themselves of this service-- specifically, that
 " . . . only Union members can avail themselves of this service of
 representation by the Union . . . ." (Jt. Exh. 1(b)).
 
    3.  Mr. James Holloway, President of Respondent, testified that that
 article reflected the policy of Respondent, ". . . that in the area of
 appeals to the Merit Systems Protection Board the Union's policy is that
 only members can avail themselves of representation by the Union" (Tr.
 16) and Mr. Holloway stated that this is still the policy of Respondent
 (Tr. 16).  Mr. Holloway further stated that:
 
          "Appeals to the MSPB, EEO, proceedings under the Statute,
       matters-- I guess the best way to sum it up is matters which we
       feel are outside our duty to represent under our contract." (Tr.
       18)
 
                                .  .  .  .
 
          "Q.  . . . you said that earlier your policy was that you don't
       represent non-members in statutory proceedings, and you say that
       EEO--
 
          "A.  That's the policy.
 
          "Q.  -- is a statutory proceeding.
 
          "A.  That's the policy." (Tr. 19)
 
 However, Mr. Holloway stated that while this was, and is, the policy, ".
 . . in practical effect, I know of no instance where we actually failed
 to represent anyone who asked for it." (Tr. 19).
 
    4.  Mr. Holloway explained that this policy applies only at the point
 of election to pursue a statutory appeal procedure;  that Respondent
 will assist anyone who asks for assistance in responding to the proposed
 notice of suspension and no distinction is made between members and
 non-members (Tr. 21);  that after the response, management makes a
 decision whether to suspend or to take disciplinary action and if the
 discipline is removal or suspension for more than 14 days, the employee
 has the option of pursuing an appeal under the negotiated grievance
 procedure or of appealing to the Merit Systems Protection Board (Tr.
 21-22);  that if a non-member elects to proceed under the grievance
 procedure, Respondent represents that employee as it would a member (Tr.
 22);  but if he elects the statutory appeal route (here, specifically,
 MSPB), " . . . the Union's policy is that only members can avail
 themselves of representation by the Union." (Tr. 16).
 
    5.  Although stewards have on occasion represented employees before
 MSPB (Tr. 33, 34) and received official time (Tr. 34), as provided by
 Article 4 of the current master agreement (Jt. Exh. 2, Tr. 36) and as
 had been provided in the prior local agreement (Tr. 36), Respondent has
 three staff representatives, who are full-time staff employees, and,
 normally, one of these staff representatives is appointed to handle
 statutory appeals (Tr. 32-33).  Respondent's staff representatives,
 because they are not currently employed by the Activity, do not, of
 course, receive official time.
 
    6.  Respondent's newspaper, the "916 Union Express" is mailed to
 members and other interested parties (Tr. 14) and, in addition, is
 distributed on Tinker Air Force Base to employees (Tr. 14-15) and is
 placed in newsstands, provided by the Activity (Jt. Exh. 3), located
 throughout the base.  (Tr. 15).
 
    7.  Respondent represents between 13,000 and 14,000 members of the
 bargaining unit of whom approximately 2,500 are union members (Tr. 14).
 
                                CONCLUSIONS
 
    Respondent's position, as stated in its brief, is:
 
          " . . . It is the position of the Union that the duty of fair
       representation is coextensive with those rights which arise from
       the status as exclusive representative.  Thus, the Union
       recognizes, and embraces, it's (sic) responsibilities to represent
       non-members in matters arising from the collective bargaining
       relationship.  However, it is submitted that the Union enjoys no
       special status once an employee has elected to process a statutory
       appeal.  Accordingly, the Union shoulders no responsibility in
       representing employees in such procedures.
 
          "In short, the requirements of the duty of fair representation
       are not unlimited.  It is suggested that the boundaries of this
       duty are those boundaries established by the rights afforded the
       exclusive representative because of its' status as such."
       (Respondent Brief, Argument, pages unnumbered).
 
    Respondent cites and relies upon Professional Air Traffic Controllers
 Organization (PATCO-MEBA), Indianapolis, Indiana Air Route Traffic
 Control Center, A/SLMR No. 442, 4 A/SLMR 703 (1974) (hereinafter
 referred to as the "PATCO" case or decision);  United States Department
 of the Navy, Naval Ordnance Station, Louisville, Kentucky, FLRC No.
 75A-54, 3 FLRC 686, A/SLMR No. 588, 5 A/SLMR 725 (1975) (hereinafter
 referred to as the "Naval Ordnance Station" case or decision);  Internal
 Revenue Service, Western Region, San Francisco, California, 9 FLRA No.
 57, 9 FLRA 480 (1982) (hereinafter referred to as the "Western Region"
 case or decision);  and the post-enactment statement of Congressman
 Ford, /3/ included in the Legislative History of the Federal Service
 Labor-Management Relations Statute, Title VII of the Civil Service
 Reform Act of 1978, Subcommittee on Postal Personnel and Modernization
 of the Committee on Post Office and Civil Service, House of
 Representatives, 96th Cong., 1st Sess., Committee Print No. 96-7
 (hereinafter referred to as "Legislative History"), at pages 797-998
 (from 124 Cong. Rec. H 13609, daily ed. October 14, 1978) in support of
 its stated position.  For reasons more fully set forth hereinafter, I do
 not agree with Respondent's position and do not find that the
 authorities cited and relied upon by Respondent support its position.
 
    The PATCO case, supra, concerned the allegation that the labor
 organization, PATCO, violated Section 19(b)(1) of Executive Order 11491,
 as amended, by refusing Complainant participation in a reduced air fare
 program, and by informing him that membership in PATCO was a
 prerequisite for participation in the program.  The Assistant Secretary
 stated, in part, as follows:
 
          "In agreement with the Administrative Law Judge, I find that
       dismissal of the instant complaint is warranted based on the view
       that the evidence herein establishes merely that the reduced air
       fare program was an incident of membership in the Respondent labor
       organization.  Thus, in my view, the evidence fails to establish
       that the Respondent acted inconsistent with its obligation under
       Section 10(e) of the Order to represent the interests of all
       employees in the unit without discrimination and without regard to
       labor organization membership inasmuch as it was not established
       by the Complainant that, by virtue of Article XV of its negotiated
       agreement with the Federal Aviation Administration (FAA), the
       Respondent obtained a term and condition of employment applicable
       only to members of the Respondent and their immediate families.
       Rather, as found by the Administrative Law Judge, the evidence
       adduced reveals that the Respondent merely obtained FAA's
       acknowledgment that it would not oppose the former's efforts to
       obtain for its members a reduced or free air fare arrangement or
       consider the taking advantage of reduced air fares to be in
       violation of its code of ethics." (4 A/SLMR at 704).
 
 Judge Arrigo had further stated, in part, as follows:
 
          ". . . The employer does not bestow or provide any benefit to
       union members or indirectly assist P.A.T.C.O. in this endeavor but
       essentially states in the article (15) that it has no objection if
       P.A.T.C.O. wishes to seek such beneficial treatment from third
       parties.  (footnote omitted.) The benefit therefore, if obtained,
       is not in any sense derived from the employer.  On the facts . . .
       I do not find that the reduced air fare program is a condition of
       employment . . . .
 
          "While this issue is one of first impression under the Order,
       similar issues arising in the private sector . . . have been
       decided based on the distinction between an incident of membership
       and a condition of employment and the legal consequences that flow
       therefrom . . . ." (4 A/SLMR at 707).
 
 I fully agree with the distinction, as noted by Judge Arrigo, between an
 incident of membership and a condition of employment and the legal
 consequences that flow therefrom;  but representation of bargaining unit
 members in statutory proceedings is not an incident of membership.
 
    The Naval Ordnance Station case, supra, arose from the activity's
 refusal to recognize a union steward as the representative of a unit
 employee who had not designated the steward as his representative as
 required by applicable Navy Regulations and by the notice of proposed
 removal.  The Assistant Secretary had held that the exclusive
 representative had an obligation under Section 10(e) of the Order to
 represent the employee until such time as he indicated his desire to
 choose his own representative and that the activity's failure to
 recognize the steward as the representative of the employee violated
 Section 16(a)(1) and (6) of the Order.  The Council reversed, stating,
 in part, as follows:
 
          " . . . the second sentence of section 10(e) (It (the exclusive
       representative) is responsible for representing the interests of
       all employees in the unit without discrimination and without
       regard to labor organization membership . . . ) does not impose an
       affirmative duty on the exclusive representative to act for unit
       employees whenever it is empowered to do so under the Order, but
       only prescribes the manner in which the exclusive representative
       must provide its services to unit employees when acting within its
       scope of authority established by other provisions of the Order.
 
          "In conclusion, with respect to the first issue raised, section
       10(e) of the Order does not impose upon a labor organization
       holding exclusive recognition an obligation to represent a
       bargaining unit employee in an adverse action proceeding until
       such time as the employee indicates a desire to choose his own
       representative.  /4/
 
          " . . . the first sentence of section 10(e) (When a labor
       organization has been accorded exclusive recognition, it is the
       exclusive representative of employees in the unit and is entitled
       to act for an to negotiate agreements covering all employees in
       the unit.) which empowers an exclusive representative to act for
       all unit employees . . . also authorizes it to act for or on
       behalf of an individual unit employee.  However, . . . the
       exclusive representative's right to act for or represent an
       individual unit employee, as distinguished from its right to act
       for all unit employees, is not without limitation.  That is, while
       a labor organization may on its own initiative act on behalf of a
       unit employee pursuant to its authority under contract or the
       Order, such a right is not inherent where, as here, it concerns an
       employee's adverse action proceeding, which is a procedure
       established pursuant to law and regulation rather than by
       agreement or the Order.  Such matters, which are fundamentally
       personal to the individual and only remotely related to the rights
       of the other unit employees, are not automatically within the
       scope of the exclusive representative's 10(e) rights, which are
       protected by the Order . . . .
 
          "In the instant case the Union had no contractual right to act
       upon its own initiative and attempt to serve as the employee's
       representative in an adverse action proceeding.  (Footnote
       omitted.) Moreover, as found by the Assistant Secretary, the
       individual employee had not selected the union as his
       representative and so advised agency management." (3 FLRC at
       691-692).
 
 While clearly the Council held that an exclusive representative has no
 obligation under the Order to represent unit employees in an adverse
 action proceeding, the Council did not have before it, nor did it
 address, the labor organization's duty of representation of non-members
 of the union in adverse action proceedings if it undertakes such
 representation on behalf of members of the union.  I find nothing in the
 Council's decision in Naval Ordnance Station that supports Respondent's
 position, indeed, the inference is to the contrary.  Thus, the Council,
 inter alia, specifically stated that, "Such matters . . . are not
 automatically within the scope of the exclusive representative's 10(e)
 rights . . . " and specifically noted that, " . . . the individual
 employee had not selected the union as his representative and so advised
 agency management."
 
    The Western Region case, supra, involved a request for information.
 Judge Naimark held, and the Authority adopted his conclusion, that the
 union was entitled to the information requested in order to enable it to
 properly represent a unit employee at an oral hearing prior to
 management's consideration of a proposed adverse action and that the
 complaint was not barred by Sec. 16(d) of the Statute.  Respondent here
 points to Judge Naimark's statement that,
 
          " . . . The Union, as bargaining representative, would have had
       no standing qua Union before the appeals body.  /5/
 
 In the Western Region case, the same assistant counsel for NTEU
 represented the employee, Rodriguez, in the MSPB proceeding as had
 represented the employee at the oral hearing.  I quite agree with
 Respondent that representation of the employee before MSPB was as his
 personal representative;  but it simply does not follow, as Respondent
 asserts, that, if the union has no rights as exclusive representative in
 an appeals procedure, it has no duty under Sec. 14(a)(1) of the Statute.
  /6/ If it provides representation to unit employees in appeals
 proceedings, it must do so without discrimination and without regard to
 labor organization membership.
 
    The portion of Congressman Ford's post-enactment statement relied
 upon by Respondent is as follows:
 
          "The labor organization is required to meet a duty of fair
       representation for all employees, even if not dues-paying members,
       who use the negotiated grievance procedure.  The costs involved in
       the procedure, which may well involve arbitration, are high.
       Although, the basic House approach of stating in the statute the
       scope of the procedure was followed, the conferees also adopted a
       provision (Sec. 21(a)(2)) aimed solely at allowing the exclusive
       representative, at its option, to propose and agree to a reduced
       coverage for the negotiated grievance procedure-- perhaps for
       financial reasons . . . ." (Legislative History, pp. 997-998).
 
 Sec. 21(a)(2) of the Statute provides that, "Any collective bargaining
 agreement may exclude any matter from the application of the grievance
 procedures which are provided for in the agreement", and I am aware that
 some agreements do provide that matters subject to a statutory appeals
 procedure to the MSPB are excluded from arbitration under the negotiated
 grievance procedure;  but, even accepting Congressman Ford's statement
 that reduced coverage of a negotiated grievance procedure does not
 affect the duty imposed by Sec. 14(a)(1) of the Statute and, while an
 exclusive representative may reduce its obligation to provide
 representation, if it, nevertheless, undertakes representation of unit
 employees in statutory appeals proceedings it must represent the
 interests of all employees in the unit it represents "without
 discrimination and without regard to labor organization membership."
 
    Although not cited by Respondent, I have given long and careful
 consideration to Judge Sternburg's decision, in American Federation of
 Government Employees, AFL-CIO and Social Security Administration, Case
 No. 3-CO-20003 (OALJ-82-131, dated September 16, 1982), (hereinafter
 also, referred to as the "Social Security" case) in which he held that
 charging different, or higher, contingent fees for non-union employees
 than for union members in a civil class action by a private attorney
 paid a retainer by the union did not violate Secs. 16(b)(1) or (8) of
 the Statute.  Factually, that case is distinguishable.  There, a
 question had arisen as to whether Social Security was paying the proper
 night differential to unit employees working overtime.  Upon discovery
 of the alleged underpayment, many unit employees filed grievances, both
 individually and through the union, under the negotiated grievance
 procedure.  The union and management representatives held numerous
 meetings with regard to the mechanics for processing the grievances
 and/or back pay claims;  a ruling was sought from the Comptroller
 General, whose decision left "no dispute as to the merits of the
 grievances . . . only the amount . . . ";  and a task force was
 established to process the records and back pay claims.  Nevertheless,
 because of its dissatisfaction with the progress of the task force, the
 union consulted a private attorney concerning the possibility of filing
 a civil action in the United States District Court for the purpose of
 obtaining back pay underlying the pending grievances.  The attorney
 agreed to represent unit employees in a class action against Social
 Security for the night pay differential allegedly due.  Initially, the
 attorney intended to recoup his fee and expenses solely on a contingent
 basis from any recovery;  subsequently, however, the attorney requested,
 and the union agreed to pay, a retainer of $5,000.00.  Although a
 variety of consent forms were used, some of which provided for no
 contingent fee, a consent form was published by the union which provided
 that union members would pay the attorney a contingent fee of 5% of any
 recovery and that non-union employees would pay a contingent fee of 10%
 for any recovery.  The class action was filed.  At the time of the
 hearing, the grievances had not yet been finally resolved or processed
 to arbitration nor had the Court rendered decision in the class action.
 Judge Sternburg stated that, "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."
 
    Consequently, in the Social Security case, as the union had proceeded
 with disposition or resolution of the back pay claims under its
 negotiated agreement, and those proceedings were active and continuing,
 the union's instigation and financing of a parallel civil action was
 outside its obligation as exclusive representative.  Indeed, Judge
 Sternburg stated,
 
          "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 . . . ."
 
 Although Social Security, supra, is distinguishable, I am aware, as I
 noted in National Treasury Employees Union and National Treasury
 Employees Union, Chapter 121 and Department of Treasury, Bureau of
 Alcohol, Tobacco and Firearms, Case No. 6-CO-15 (OALJ-83-108)
 (hereinafter, referred to as the "NTEU" case), that it appears to be
 based, at least in part, on the premise that the union did not control
 access to suit in court.  As noted, Judge Sternburg did state that if
 the civil action had been a substitute for arbitration he would have
 found a violation, notwithstanding that access to suit in court would
 have been unchanged;  but, to the extent that Social Security, supra, is
 based on control of access, my conclusion herein, for reasons more fully
 set forth hereinafter, and in the NTEU case may be at variance with that
 of Judge Sternburg.
 
    Although not cited by Respondent, I have also considered American
 Federation of Government Employees, Local 2126, AFL-CIO, San Francisco,
 California, 1 FLRA No. 112, 1 FLRA 992 (1979), in which the Authority
 adopted an Administrative Law Judge's decision that, " . . . the union,
 as such, had no duty to represent complainant in his EEO complaint." (1
 FLRA at 999).  The complainant was a member of the union and, of course,
 the case, did not involve any assertion of discrimination on the basis
 of labor organization membership.  Judge Schneider's statement, quoted
 above, was consistent with the Council's decision in Naval Ordnance
 Station, supra, and with Judge Naimark's statement in Western Region,
 supra, and Judge Schneider found that the union ". . . did not act
 arbitrarily or perfunctorily or in bad faith, and did not breach its
 duty of fair representation to the complainant, under any of the
 possible interpretations of that duty . . . ." (1 FLRA at 1002).  See,
 also, American Federation of Government Employees, AFL-CIO, Local 987, 3
 FLRA No. 115, 3 FLRA 714 (1980).
 
    There can be no doubt that an adverse action grows out of employment.
  A suspension of less than 14 days for example, is subject to the
 exclusive coverage of the negotiated grievance procedure.  Indeed,
 Respondent, rather than narrowing the coverage of its negotiated
 grievance procedure, has provided for broad coverage, inter alia, "any
 matter involving working conditions, or any matter involving the
 interpretation and application of policies, regulations, and practices
 of the Air Force, AFLC, and subordinates AFLC activities not
 specifically covered by this Agreement." (Jt. Exh. 2, Art. 6, Sec. 6.01,
 p. 25);  and an aggrieved employee is afforded the option of utilizing
 either the statutory appeals procedure or the negotiated grievance
 procedure, but not both.  (Jt. Exh. 2, Art. 6, Sec. 6.02, pp. 25-26).
 The Agreement specifically provides that, ". . . the steward/official
 may be excused from work, a reasonable amount of official time will be
 granted to:
 
          " . . .
 
          "(7) represent an employee in appeal hearings covered by
       statutory procedures;
 
                                  * * * *
 
          "(10) be present as an observer in adverse action proceedings
       or grievance adjustments where the Union is not be employee's
       representative (subject to approval of the hearing officer in
       charge of the proceeding);
 
                                  * * * *
 
          "(13) prepare employee grievances and appeals;
 
                                  * * * *
 
          "(16) assist an employee when designated as their
       representative in preparing a response to a proposed disciplinary
       action;
 
                                  * * * *
 
          "(20) assist an employee in preparing a response to any
       personnel action resulting from a directed fitness for duty
       examination;
 
          "(21) allow travel time on the base or to the Union office to
       accomplish any of the above" (Jt. Exh. 2, Art. 4, Sec. 4.06, pp.
       9-11;  See, also, Sec. 4.07, p. 11;  Sec. 4.09, p. 12).
 
 Of course, official time is also provided for various other functions,
 including:  presentation of grievances at any step of the negotiated
 grievance procedure;  representation at arbitration hearings;
 preparation for grievances and arbitration.  An employee may present a
 grievance without union representation, but "the Local shall be given an
 opportunity to have an observer present at any discussion of the
 grievance on official time if the observer would otherwise be in a duty
 status" (Jt. Ex. 2, Art. 6, Sec. 6.05, p. 27).
 
    Respondent states that ". . . when an employee is initially subjected
 to discipline, the union will provide a representative irrespective of
 membership.  However, after management has made a final decision to
 impose some discipline of a 14 days suspension, or longer, the employee
 must decide whether to pursue his rights under the negotiated agreement
 or to pursue his rights under the statutory appeal procedure.  If the
 employee elects to proceed under the statutory appeal procedure, then
 the Union feels it's (sic) duty of fair representation is extinguished."
 (Respondent's Brief, pages unnumbered).  Respondent further states that,
 "As a service to it's (sic) members, the Union has on staff three full
 time union representatives.  These are normally the individuals who
 represent employees in statutory appeals (Tr. 32).  Since these
 individuals are not employed by Management, they do not receive any
 official time to represent individuals before the MSPB." (Respondent's
 Brief).
 
    Secs. 21(d) and (e) of the Statute provide that matters covered by
 statutory appeals procedures which fall within the coverage of the
 negotiated grievance procedure may, in the discretion of the aggrieved
 employee, be raised either under the appeals procedure or under the
 negotiated grievance procedure, but not both (5 U.S.C. 7121(d) and (e)).
  Respondent's Agreement (Jt. Exh. 2, Art. 6, Sec. 6.02, pp. 25-26) thus
 reiterates the provisions of the Statute.  It is possible that under the
 doctrine of fair representation a union might decline all representation
 of all unit employees in statutory appeals;  but I expressed no opinion
 concerning the duty, if any, under such circumstances as such issue is
 not before me.  Nevertheless, it is clear that a union violates its duty
 of fair representation if it refuses to represent a unit employee
 because of non-membership in the union.  Thus, in Del Casal v. Eastern
 Airlines, Inc., et al., 634 F.2d 295, 106 LRRM 2276 (5th Cir. 1981),
 cert. denied, 454 U.S. 892, 108 LRRM 2656 (1982), the Court of Appeals
 held that the union, Airline Pilots Association International (ALPA)
 breached its duty of fair representation when it failed to provide a
 discharged pilot, who was a member of its bargaining unit, with a union
 staff attorney to represent him at a System Board of Adjustment hearing
 because of his non-membership in the union.  The Court stated, in part,
 as follows:
 
          "The court accepts ALPA's arguments that the duty of fair
       representation does not require a union to accept a particular
       individual into membership, that a union is not obligated to
       extend those internal benefits enjoyed by its members to
       nonmembers, and that a union may refuse to prosecute a grievance
       which it considers to be lacking in merit;  however, these
       arguments are not dispositive of the issue in this case.  The
       issue in this case is whether a union may refuse to represent a
       member of the bargaining unit on the ground that he is not a
       member of the union without violating its duty of fair
       representation.  Thirty-five years ago this court established the
       principle that a union may not discriminate against members of its
       bargaining unit on the basis of that person's status as a
       nonmember of the union.  Hughes Tool Co. v. NLRB, 147 F.2d 69 (5th
       Cir. 1945).
 
          " . . . The proposition that discrimination against non-member
       employees who are part of the bargaining unit is impermissibly
       arbitrary if no relevant distinction exist between the union and
       nonunion employees is reiterated in Deboles v. Trans World
       Airlines, Inc., 552 F.2d 1005, 1016, (3rd Cir. 1977), cert.
       denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed. 2d 98 (1977).
 
          ". . . While ALPA has the authority to decide under what
       conditions an attorney will be supplied to a grievant, the fact
       that the grievant is not a member of the union can play no part in
       that decision." (634 F.2d at 300-301, 106 LRRM at 2280).
 
    In Del Casal, supra, ALPA provided attorneys to grievants at their
 hearings before the System Board, as Respondent provides staff
 representatives here in hearings before the MSPB.  Respondent, like
 ALPA, violates its duty of fair representation when it denies
 representation to members of the bargaining unit before the MSPB on the
 basis of whether they are members of the union.
 
    Under the Statute, Respondent has not merely a duty of fair
 representation implied from its status as exclusive representative, but
 the specific statutory obligation whereby it,
 
          " . . . is responsible for representing the interests of all
       employees in the unit it represents without discrimination and
       without regard to labor organization membership." (Sec. 14(a)(1),
       5 U.S.C. Sec. 7114(a)(1)).
 
 Respondent's stated policy, as fully set forth in its publication, "916
 Union Express" and in the testimony of President Holloway, was, and is,
 that ". . . in the area of appeals to the Merit Systems Protection Board
 the Union's policy is that only members can avail themselves of
 representation by the Union." Such published policy violates
 Respondent's obligation under Sec. 14(a)(1) and constitutes an unfair
 labor practice, in violation of Secs. 16(b)(1) and (8).  /7/ Tidewater
 Virginia Federal Employees Metal Trades Council/International
 Association of Machinists, Local No. 441, 8 FLRA No. 47, 8 FLRA 217
 (1982);  American Federation of Government Employees, Local 1778,
 AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (1982);  National Treasury
 Employees Union, 10 FLRA No. 91, 10 FLRA 519 (1982);  see also, National
 Treasury Employees Union (NTEU), Chapter 202, et al., 1 FLRA 910 (1979);
  Federal Aviation Science and Technological Association Division,
 National Association of Government Employees, 2 FLRA 802 (1980).
 Moreover, such announced policy constituted a further violation of Sec.
 16(b)(1), independent of Sec. 14(a)(1), because it interfered with the
 employees' protected right under Sec. 2 of the Statute to refrain from
 joining a labor organization.  American Federation of Government
 Employees, Local 1778, AFL-CIO, supra;  National Treasury Employees
 Union, supra.
 
    Having found that Respondent has engaged in, and is engaging in,
 certain conduct in violation of Secs. 14(a)(1), and 16(b)(1) of the
 Statute, it is recommended that the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 18 of the Statute, 5 U.S.C. 7118, and Section
 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby
 orders that the American Federation of Government Employees, AFL-CIO,
 Local 916, shall:
 
    1.  Cease and desist from:
 
          (a) Affording differing standards of employee representation to
       employees in its unit of exclusive recognition solely on the basis
       of whether such employees are members of American Federation of
       Government Employees, AFL-CIO, Local 916.
 
          (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, Local 916, 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) Publish in its newspaper, "916 Union Express" a statement
       informing all members of the bargaining unit that its prior
       statement, published in September, 1981, that only union members
       could avail themselves of representation by the union in statutory
       appeals proceedings is hereby withdrawn and rescinded and inform
       all unit employees that it will represent all bargaining unit
       employees in statutory appeals proceedings without regard to labor
       organization membership.
 
          (b) Represent all employees in its unit of exclusive
       recognition without discrimination and without regard to
       membership in American Federation of Government Employees,
       AFL-CIO, Local 916.
 
          (c) Post at Tinker Air Force Base, Oklahoma, including at its
       normal meeting places and all places where notices to members and
       employees of the United States Department of Defense, Department
       of the Air Force, Oklahoma City Air Logistics Center, Tinker Air
       Force Base, Oklahoma, 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 Local 916 and they shall be posted and
       maintained for 60 consecutive days thereafter in conspicuous
       places, including all places where notices to members and other
       employees are customarily posted.  The President of Local 916
       shall take reasonable steps to insure that such Notices are not
       altered, defaced, or covered by any other material.
 
          (d) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
       2423.20, notify the Regional Director of the Federal Labor
       Relations Authority for Region VI, whose address is:  P.O. Box
       2640, Dallas, Texas, 75221, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  July 15, 1983
    Washington, 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 MEMBERS AND OTHER EMPLOYEES
 THAT:
 
    WE WILL NOT afford differing standards of employee representation to
 employees in our unit of exclusive recognition solely on the basis of
 whether such employees are members of American Federation of Government
 Employees, AFL-CIO, Local 916.
 
    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, Local 916, or any other labor organization.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce unit employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL publish in our newspaper, "916 Union Express" a statement
 informing all members of the bargaining unit that our prior statement,
 published in September, 1981, that only Union members could avail
 themselves of representation by the Union in statutory appeals
 proceedings is hereby withdrawn and rescinded and we will inform all
 unit employees that we will represent all bargaining unit employees in
 statutory appeals proceedings without regard to labor organization
 membership.
 
    WE WILL represent all employees in our unit of exclusive recognition
 without discrimination and without regard to membership in American
 Federation of Government Employees, AFL-CIO, Local 916.
                                       (Labor Organization)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for sixty (60) consecutive days from
 the date of posting and must not be altered, defaced, or covered by any
 other material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region VI,
 whose address is P.O. Box 2640, Dallas, Texas 75221;  and whose
 telephone number is (214) 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The recommended Order is modified to require submission of the
 Notice to the Charging Party and posting by the Charging Party.
 
 
    /2/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(b)(1) will be referred to, simply,
 as "16(b)(1)."
 
 
    /3/ As a post-enactment, it is not part of the legislative history
 and may not be accorded weight as legislative history.
 
 
    /4/ "Having determined that section 10(e) of the Order does not
 impose upon an exclusive representative an obligation to represent unit
 employees in an adverse action proceeding, it is unnecessary to pass on
 the Assistant Secretary's further conclusion that such obligation
 continues until the employee chooses his own representative in a
 grievance or appellate action pursuant to section 7(d)(1)." (3 FLRA at
 690).
 
 
    /5/ "in its brief Respondent states the Union had no right to request
 Rodriguez before the MSPB.  This contention supports the conclusion that
 the latter could not have passed upon the Union's entitlement to the
 information as bargaining representative." (9 FLRA at 492-493).
 
 
    /6/ Respondent refers to the "duty of fair representation." While I
 agree that the duty of fair representation, developed in the private
 sector, see, for example, Conley v. Gi