19:0520(66)CO - AFGE Local 1738 and VA Medical Center, Salisbury, NC -- 1985 FLRAdec CO



[ v19 p520 ]
19:0520(66)CO
The decision of the Authority follows:


 19 FLRA No. 66
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1738, AFL-CIO
 Respondent
 
 and
 
 VETERANS ADMINISTRATION MEDICAL CENTER
 SALISBURY, NORTH CAROLINA
 Charging Party
 
                                           Case No. 4-CO-47
 
                            DECISION AND ORDER
 
    The Chief Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Chief Judge's Decision and a
 supporting brief, and the Respondent filed an opposition thereto.
 
    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
 Chief Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Chief Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Chief Judge's findings, conclusions and
 recommendation, as modified herein.
 
    The Complaint alleged that the Respondent, American Federation of
 Government Employees, Local 1738, AFL-CIO, violated section 7116(b)(1)
 and (3) of the Statute when it removed unit employee Kenneth Poteat from
 his position as Union steward because he discharged his duties as an
 employee by reporting to the Agency in compliance with Agency policy
 that another employee engaged in patient abuse.
 
    The Chief Judge found that "there is every reason to suspect that
 Poteat violated Union policy and that he was removed, in effect, for
 conduct unbecoming an officer." He further found that while the report
 of alleged patient abuse by a fellow employee caused his removal as
 steward, he could not find that the Union's motive in removing Poteat
 was punishment or reprisal.  Section 7116(b)(1) of the Statute makes it
 an unfair labor practice for a labor organization "to interfere with,
 restrain, or coerce any employee in the exercise by the employee of any
 right under this chapter(.)" In agreement with the conclusion of the
 Chief Judge, the Authority finds that the section 7116(b)(1) allegation
 has not been established.  Thus, reporting alleged patient abuse is not
 itself a protected right under the Statute, and the section 7116(b)(1)
 allegation must therefore be dismissed.
 
    However, contrary to the Chief Judge, the Authority finds that
 removing Poteat from his position as Union steward after he reported
 alleged patient abuse violated section 7116(b)(3) of the Statute.
 Section 7116(b)(3) makes it an unfair labor practice for a labor
 organization to "coerce, discipline, fine, or attempt to coerce a member
 of the labor organization as punishment, reprisal, or for the purpose of
 hindering or impeding the member's work performance or productivity as
 an employee or the discharge of the member's duties as an employee(.)"
 
    As found by the Judge, all agency employees are required to sign a
 memorandum which provides that an employee who "witnesses any
 unkindness, rudeness, or violence of any kind toward a patient and does
 not promptly report it to the proper authority is subject to
 disciplinary action," including discharge.  Poteat filed such a report
 which led to his removal as steward.  The Authority finds that the
 Union's action in removing Poteat as steward in the circumstances of
 this case had the effect of coercing him or disciplining him for the
 purpose of hindering or impeding his work performance or the discharge
 of his duties as an employee.  The Union's removal of Poteat thus
 violated section 7116(b)(3) of the Statute.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the American Federation of Government Employees, Local 1738, AFL-CIO,
 shall:
 
    1.  Cease and desist from:
 
    (a) Coercing or disciplining a member of the labor organization for
 the purpose of hindering or impeding the member's work performance or
 productivity as an employee or the discharge of the member's duties as
 an employee by removing the member from the position of Union steward
 because he made a report in accordance with Agency policy.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Reinstate Kenneth Poteat to his position as Steward-Building
 Management Service, Veterans Administration Medical Center, Salisbury,
 North Carolina.
 
    (b) Post at the business office of the American Federation of
 Government Employees, Local 1738, AFL-CIO, and in normal meeting places,
 including places where notices to members and unit employees represented
 by the American Federation of Government Employees, Local 1738, AFL-CIO,
 are customarily posted, copies of the attached Notice on forms to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the President of the American
 Federation of Government Employees, Local 1738, AFL-CIO, or his
 designee, and shall be posted 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.
 
    (c) Submit appropriate signed copies of said Notice to the Veterans
 Administration Medical Center for posting in conspicuous places where
 unit employees of AFGE, Local 1738, AFL-CIO, are located, where they
 shall be maintained for 60 consecutive days from the date of posting.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the portion of the complaint alleging
 violation of section 7116(b)(1) of the Statute be, and it hereby is,
 dismissed.  
 
 Issued, Washington, D.C., July 31, 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 coerce or discipline a member of the labor organization for
 the purpose of hindering or impeding the member's work performance or
 productivity as an employee or the discharge of the member's duties as
 an employee by removing the member from the position of Union steward
 because he reported patient abuse in accordance with Agency policy.  WE
 WILL reinstate Kenneth Poteat to his position as Steward-Building
 Management Service, Veterans Administration Medical Center, Salisbury,
 North Carolina.
                                       (Union)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director, Region IV,
 Federal Labor Relations Authority, whose address is:  1776 Peachtree
 Street, NW, Suite 501, North Wing, Atlanta, Georgia, 30309 and whose
 telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 4-CO-47
 
    Jane P. Danowitz, Esq. and
    Jimmy R. Whitman
       For the Respondent
 
    William H. Hardwick
       For the Charging Party
 
    Barbara S. Liggett, Esq.
       For the General Counsel
 
    Before:  JOHN H. FENTON
       Chief Administrative Law Judge
 
                                 DECISION
 
                           Preliminary Statement
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq.
 
    On December 30, 1980, the Acting Regional Director for Region IV,
 issued a Complaint and Notice of Hearing, alleging that Respondent, in
 violation of Section 7116(b)(1) and (3) of the Statute, /1/ removed
 employee Kenneth Poteat from his position as Steward-Building Management
 Service, because Poteat discharged his duties as an employee by
 reporting to the Agency in compliance with Agency policy, that another
 employee of the Agency engaged in patient abuse.
 
    Respondent admitted removing Poteat as Steward, but denied that
 Poteat was removed as Steward for reporting the incident of patient
 abuse and denied the commission of any unfair labor practice.
 
    The matter was heard on March 24, 1981, in Salisbury, North Carolina.
  All parties were afforded full opportunity to examine witnesses, to
 introduce evidence and to file briefs.
 
    On the basis of the entire record, including my observations of the
 witnesses and their demeanor, I hereby make the following findings of
 fact and conclusions:
 
                             Findings of Fact
 
    Local 1738 represents over 1000 employees of the Salisbury Veterans
 Administration Medical Center, in units of professional and
 nonprofessional people.  About 40 or 50 Building Management employees,
 including Kenneth D. Poteat, are in the nonprofessional unit.  Poteat
 was hired as a housekeeper in December, 1979 and was assigned to the
 psychiatric ward in August.
 
    Shortly after his transfer into the psychiatric ward, one of the two
 Union stewards servicing the Building Management employees was promoted
 out of the unit, and the search for a successor was begun by Local
 1738's Steward Committee, which consisted of Executive Vice-President
 Bobby Wilhelm and Chief Steward William Yost.  At least three people
 were considered:  Poteat, Ralph Fleming and Jimmy Cureton.  After
 interviewing Poteat, the committee recommended him, notwithstanding his
 lack of experience, with the understanding he would learn on the job by
 observing other stewards.  On August 7 the Committee recommended to
 Local President Jimmy Whitman that Poteat be appointed, noting that a
 "poll of building management service employees on several candidates
 showed a majority of support for Mr. Poteat." On August 15, Whitman
 appointed him steward.  /2/
 
    Poteat never took any part in any representational duties.  His Union
 activities consisted of attendance of one Union meeting.  Early in
 September, Chief Steward Yost received complaints about Poteat's
 appointment as Steward, and his relationship with management,
 particularly that he spent a great deal of time "cultivating" Building
 Manager Darrell Moore.  At that time, Chief Steward Yost discussed these
 complaints with Local President Whitman and Executive Vice-President
 Wilhelm.  Whitman advised the others that since Poteat had been a
 Steward for such a short time, they ought to give him a chance to work
 into being a good one.
 
    At about 10:30 a.m. on September 29, Poteat observed a Nursing
 Assistant punching and kicking a patient in the psychiatric ward.  After
 telling another witness to the incident that he did not know whether he
 was going to say anything about it, he went to lunch.  /3/ Upon his
 return he visited Building Manager Darrell Moore, told him of the
 incident, and asked what he should do.  Moore told him he had to be the
 judge of that.  Poteat then returned to the ward and confronted the
 Nursing Assistant, who told him that they were in a psychiatric ward,
 that you had to let those people know who was boss, and that he didn't
 come there to get hurt and he didn't care who knew it.  Poteat then
 determined that he would make the report, but before leaving the ward
 was visited by Moore who told him that he had signed the memorandum
 promising to make such reports, and therefore had no alternative but to
 do it.  He thereupon reported the incident to the Hospital Assistant
 Director.
 
    On the following morning Executive Vice-President Wilhelm and Chief
 Steward Yost visited him in the ward.  They informed him that the
 telephone had been ringing all morning long with employee complaints.
 As recounted by Poteat, they told him:
 
          that people wanted me out of the union wanting to know what the
       heck I was doing, and I told them what had happened, and they let
       me sit there and tell them what had happened;  and then after I
       got through telling them what I had reported, they told me that
       they didn't come up there for that, that they felt like I had
       "rendered myself useless" by reporting it, and that I didn't have
       the support of the Building Management employees.
 
          So I asked them, they told me that I should have come to them
       first being as I was a steward, and I asked them why, and they
       said they would have given me examples of employees that had been
       abused by patients and tried to make it more clear to me what
       position the employees was in . . . .
 
    They then invited him to take a poll to see how the Building
 Management employees felt about him.  He suggested they take their own
 poll.  They then took a sampling and reported back to Poteat the
 following day that it confirmed their view that nobody wanted him there
 anymore, and that he "could resign or be resigned." He refused to resign
 and on the following day, October 2, he received a letter from Local
 President Whitman removing him, effective immediately, from his
 position.  The letter recited that the decision was based on the request
 of a large number of employees, that an overwhelming majority of
 Building Management employees did not trust him to properly represent
 them, and that it was necessary for the Union to have stewards who can
 represent employees.  While Whitman's letter made no mention of the
 incident, it was based on a written recommendation from Steward
 Committee members Yost and Wilhelm, who said that they had talked to
 Poteat "concerning his action on September 29, 1980, and the effect this
 would have on his credibility and effectiveness" as a steward, and that
 they had concluded from their survey that he could no longer be
 effective.  /4/ Removal from stewardship was the only respect in which
 Poteat's membership was affected.
 
    From this, Respondent argues that it did not attempt to interfere
 with Poteat's work performance.  Noting the absence of evidence that any
 agent ever told Poteat that he should not have reported the alleged
 incident of patient abuse, and that Yost and Wilhelm told him they were
 not interested in his involvement in the incident, it argues that its
 only interest in the matter was its impact on his performance as steward
 and not on his performance as an employee.  General Counsel argues that
 the purpose was punishment or reprisal for having reported the incident,
 as the swift removal of Poteat from his position would naturally
 discourage him and other employees from doing so, and the Union must be
 found to have intended the natural and foreseeable consequences of its
 actions.
 
    There is here no hard evidence that the Union was motivated to punish
 Poteat for breach of a policy against reporting patient abuse.  There
 is, in fact, no evidence of such a policy, strongly as one suspects
 that, even if the Union does not openly buck the "regulation", it
 strongly disputes its implementation in some cases.  Patient abuse, like
 police brutality, has much emotional freight, and it is clear that some
 staff members are fearful of it, if not victims of, the violence of
 patients.  Since one man's application of necessary restraint may be
 viewed by another as unprovoked abuse, it is to be expected that there
 would be disagreement over what constitutes a reportable incident as
 opposed to defensive measures to be overlooked, and that ward staff,
 like policemen, would tend to unite in the effort to avoid
 second-guessing by authorities not directly involved in dealing with
 patients.  Certainly the immediate and strong reaction of employees
 against Poteat which the Union here claims, suggests that a Union
 responsive to its members would disapprove of Poteat's conduct in this
 instance.  Whatever happened, and we have no version but Poteat's, there
 is every reason to suspect that Poteat violated Union policy and that he
 was removed, in effect, for conduct unbecoming an officer.  Nevertheless
 the Union, whether for reasons of conscience or of care and caution in a
 risky enterprise, evinced no concern, as such, with Poteat's report.  At
 most, it told him that he should have first afforded it an opportunity
 to provide him (a man new to the ward) with examples of patient abuse of
 employees and to make clear to him the position the employees were in.
 Obviously, of course, Poteat's report caused his removal, for it led to
 the complaints which led to his removal.
 
    The facts of this record will not support a finding that the Union's
 motive in removing Poteat from office was punishment or reprisal.
 Rather, the evidence comports with the Union's professed purpose of
 removing an official who could no longer be effective.  Nevertheless, if
 the Statute is viewed as prohibiting removal from office as punishment
 or reprisal, application of the common law principle that a person is
 held to intend the natural and foreseeable consequences of his actions
 would support an inference that such was the Union's purpose, for a
 clear consequence of such removal would be to discourage employees from
 complying with the patient abuse directive.  /5/ Alternatively, it might
 be found that the nature of the conduct here renders motive irrelevant
 because it inherently tends to discourage employees/members from
 discharging their responsibilities as employees, i.e., that the Union's
 action is so destructive of the statutorily recognized obligation to the
 government that it cannot be tolerated, even where otherwise lawful
 objectives were at play.
 
    I need not resolve the question whether such an inference can
 appropriately be drawn, in view of my conclusion and recommendation that
 neither Section 7116(b)(1) or (3) was intended to curb a labor
 organization's power over its officers.
 
                        Discussion and Conclusions
 
    There is a threshold question whether VA has standing to file this
 charge.  That matter was resolved by the Authority in NTEU and NTEU
 Chapter 53, and IRS, 6 FLRA No. 37, in which it adopted the Judge's
 conclusion that any person may file a charge.
 
    As to the merits, the General Counsel contends that the removal of
 Poteat from appointive office violated Section 7116(b)(1) because it
 interfered with, coerced and restrained him in the exercise of the right
 to assist the Union as a steward by placing an impermissible price on
 such activity:  a requirement that he reject a statutorily recognized
 duty owed his employer.  He further argues that such conduct violated
 Section 7116(b)(3) because it had the natural and foreseeable effect of
 discouraging Poteat from discharging his duties to his employer, and is
 therefore to be viewed as having the purpose of hindering or impeding
 his work performance and of punishing him for doing his duty.
 Respondent counters that the Statute is designed to protect employees,
 as such, and members, as such, but not union officials or
 representatives, as to whom it has absolute power of appointment and
 removal.
 
    The Statute is silent in this context, with respect to Union
 officials.  Explicitly, it protects employees in their right to form,
 join or assist labor organizations or to refrain therefrom, and members
 in their right to be free of coercion, discipline or fine "as punishment
 or reprisal, or for the purpose of hindering or impeding the member's
 work performance or productivity as an employee or the discharge of the
 member's duties as an employee." The legislative history does not
 indicate whether Congress intended, in providing such protection, to
 intrude into the relationship between a labor organization and its
 representatives.
 
    In National Treasury Employees Union and National Treasury Employees
 Union, Chapter 53, supra, the Federal Labor Relations Authority held
 that the Union violated Section 7116(b)(1) when it removed a steward
 from office because he gave testimony in a proceeding before the
 Authority.  In doing so, the Authority cautioned that its holding
 "should not be construed as abrogating the union's control of its own
 internal affairs in the absence of a statutory violation such as here
 involved," and noted that its "order that the union steward be
 reinstated to his union position is, of course, confined to the
 circumstances of this case where . . . the union steward, except for his
 testimony at the Authority proceeding, would not have been removed from
 that position."
 
    The General Counsel, of course, argues that this case establishes
 that the protection literally accorded employees and members is not
 limited to shielding an individual from improper union conduct affecting
 employment or membership status as such, but extends to such persons in
 their capacity as union representatives.  There is however, as discussed
 below, reason to believe that the protection afforded those who invoked
 the Agency's processes, or cooperate with it, is sui generis.  The
 analog to this holding under the National Labor Relations Act may be
 helpful, although the parallel is somewhat weak for two reasons.  While
 that Act, like this one, protects employees from union restraint and
 coercion in the exercise of their right to "form, join or assist labor
 organizations," Section 8(b)(1)(a) provides, in literal terms, for much
 greater deference to the right of a labor organization to manage its own
 internal affairs than is the case under our Statute.  Thus the famous
 proviso to Section 8(b)(1)(a) states that the proscription of union
 restraint or coercion of employees in their fundamental right to form,
 join or assist contained in that "paragraph shall not impair the right
 of a labor organization to prescribe its own rules with respect to the
 acquisition or retention of membership therein . . . . " Our Statute, in
 Section 7116(b)(4) and 7116(c), contains elaborate constraints on a
 union's right to discriminate with regard to the terms or conditions of
 memberships, and recognizes as privileged management of internal affairs
 only the right of a union to enforce "discipline in accordance with
 procedures under its constitution or bylaws to the extent consistent
 with the provisions of this chapter." In addition, there is in the NLRA
 no counterpart to Section 7116(b)(3)'s prohibition of union interference
 with its members' discharge of their duties as employees or Section
 7101(b)'s command that "the provisions of this chapter should be
 interpreted in a manner consistent with the requirements of an effective
 and efficient government."
 
    Notwithstanding these distinctions, examination of private sector
 cases can be instructive.  Unlike the Authority, the NLRB has made it
 clear that the right to file a charge, or to give testimony in a Board
 proceeding serves a public interest of overriding importance, and must
 be protected even in the case of supervisors /6/ and of union members
 subjected to discipline which is ordinarily beyond the Statute's reach.
 /7/ Thus, to preserve unimpeded access to the very machinery Congress
 created for the vindication of statutory rights, the Board with Court
 approval, has extended its protection to categories of employees not
 normally protected and to matters which are normally considered internal
 union affairs.  The Board has consistently protected union officers from
 removal based upon the filing of a charge, /8/ whereas it will not
 protect them where the removal is based, for example, upon criticism of
 the union's handling of a grievance /9/ or support for a defeated
 candidate.  /10/ On the other hand, it has found the fining of a member
 for opposing incumbent union officers violative of Section 8(b)(1)(a) on
 the ground the union has no legitimate interest to protect.  /11/
 
    Whatever the balance struck between the rights of members and the
 organization, it is clear that the rights of officers are more limited
 because they must be accommodated to the organization's interest in
 effective and cohesive leadership.  In Industrial Union of Marine and
 Shipbuilding Workers, supra, the Supreme Court, in addressing a member's
 expulsion for filing a charge, held that "(a)ny coercion used to
 discourage, retard or defeat that access (to the Board) is beyond the
 legitimate interests of a labor organization . . . .  (T)he overriding
 public interest makes unimpeded access to the Board the only healthy
 alternative, except and unless plainly internal affairs of the union are
 involved." Notwithstanding this strong policy, and the Board's adherence
 to it in cases involving removal of officers for invoking its processes,
 the only such case to reach U.S. Circuit Court review was reversed.  In
 NLRB v. Boilermakers (99 LRRM 2855, CCA 5), a divided Court held the
 union was privileged to remove a steward because of his failure to
 pursue his discharge grievance under the collective bargaining contract
 before filing an unfair labor practice charge against his employer.  An
 important consideration in that case was that the union policy which the
 officer defied was one of adherence to negotiated processes, and thus
 was in harmony with the national labor policy of achieving industrial
 peace through collective bargaining.  That element is missing here.
 /12/ Nevertheless, the distinction drawn between the rights of officers
 is a strong one, as is obvious from its application in circumstances
 where a "natural and foreseeable consequence" of the union's action was
 to impair free access to the Board.
 
    The instant case also has certain parallels to the law elaborated
 under the LMRDA, 29 USC 411(a)(2) and Sec. 529.  The first of these
 grants union members the "right to meet and assemble freely with other
 members;  and to express any views, arguments or opinions;  and to
 express at meetings . . . views, upon candidates in an election or upon
 any business properly before the meeting," with certain limitations.
 The latter makes it unlawful for a union or its agent "to fine, suspend,
 expel or otherwise discipline any of its members for exercising any
 right to which he is entitled . . . under this chapter." Two lines of
 court authority developed, one holding that a union could not discharge
 an officer or employee for such political activity, and the other
 holding that a union can compel political loyalty from its officials.
 The conflict was resolved by the Supreme Court on May 17, in Finnegan v.
 Leu (110 LRRM 2321).  The Court unanimously held that the term
 "discipline" referred only to retaliatory actions affecting a member's
 rights as a member, and therefore did not protect business agents fired
 for supporting an unsuccessful candidate for local union president.
 Noting that the Statute referred to members, the Court found that both
 the language and the legislative history of the "bill of rights" showed
 that Congress sought to protect rank and file union members-- not union
 officers or employees as such.  In so holding, the Court observed that
 the three disciplinary sanctions specifically enumerated in Section
 529-- "fine, suspension and expulsion-- are all punitive actions taken
 against union members as members."
 
    It is to be noted that our Act, in addition to enumerating two forms
 of traditional union sanctions against members-- discipline and fines--
 also prohibits coercion-- a term not necessarily limited to the
 customary internal sanctions such as fines, suspension or expulsion.
 Thus it is not so easy here, as it was in Finnegan, to conclude that
 Congress intended to limit the prohibited conduct to such punitive
 actions as unions take against their members as members.
 
    In sum, I find no clear guidance in the language of the Statute, in
 its legislative history or in decisions construing this law or the
 somewhat similar provisions of the NLRA and the LMRDA.  I think it is
 clear that cases protecting the right of union officials to file a
 charge or give testimony before the NLRB are unique and of no
 precedential value in this matter, as this agency is not here confronted
 with the compelling need to protect its own processes.  Put otherwise,
 an agency charged by Congress with vindicating statutory rights is also
 charged with protecting access to, as well as cooperation in, those
 processes, if they are to be effective.  /13/ It would seem that the
 Authority's NTEU case is, for like reasons, subject to the same
 limitation.
 
    Persuasive arguments can be made for finding a violation or for
 dismissal.  The right to hold office is an incident of membership, and
 interference by an employer would surely not be countenanced.  On the
 other hand, a union's right to circumscribe the conditions in which a
 member may hold office must also be recognized.  Here Congress used the
 word "member," and clearly sought to insulate membership from union
 action based on the member's discharge of his duties to his employer.  I
 am reluctant, in the absence of any indication that Congress meant to
 intrude into the relationship between a labor organization and its
 officers, to conclude that Section 7116(b)(3) was intended to protect
 members from anything more than the traditional sanctions used against
 members:  threats, violence, fines, suspension and expulsion.  Several
 considerations fortify this conclusion:  it would appear that Congress'
 purposes are served altogether adequately by assuring that membership,
 as such, will not be affected by considerations of work performance;
 the Supreme Court's Finnegan decision suggests that Congress' use of the
 word members indicates that it sought to protect rank and file members
 as opposed to officers or employees of the union;  and extending the
 word to cover the right to hold office would constitute an intrusion
 into the thicket of internal union politics which may be not only
 unnecessary, but mischievous in the extreme.
 
    In Finnegan, the Supreme Court found no indication that Congress, in
 protecting members from union discipline based on the exercise of their
 rights of free speech and assembly, sought "to establish a system of job
 security or tenure for appointed union employees." If, as certainly
 appears to be the case, the membership of Local 1738 does not want
 Poteat as a representative, its desire to remove him could be frustrated
 indefinitely.  So long as he wished to hold the position and no
 convincing independent and justifiable reason for his removal
 intervened, action to replace him would arguably be based on the
 impermissible ground that he snitched on a fellow employee.  This could
 involve the Authority in further litigation concerning the motives in
 any subsequent removal.  The consequences for effective and cohesive
 leadership of the Local are obvious, whereas the usefulness of issuing
 and policing such a remedy is questionable.
 
    Accordingly, I recommend that this complaint, alleging violations of
 Section 7116(b)(1) and (3) be dismissed in its entirety.
 
                                       JOHN H. FENTON
                                       Chief Administrative Law Judge
 
 Dated:  June 16, 1982
         Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Sec. 7116.  Unfair Labor Practice
 
          (b) . . . it shall be an unfair labor practice for a labor
       organization--
 
          (1) to interfere with, restrain or coerce any employee in the
       exer