20:0296(34)CA - DOL and Susan Wuchinich and Local 2513, AFGE -- 1985 FLRAdec CA



[ v20 p296 ]
20:0296(34)CA
The decision of the Authority follows:


 20 FLRA No. 34
 
 UNITED STATES DEPARTMENT 
 OF LABOR 
 Respondent 
 
 and 
 
 SUSAN WUCHINICH 
 Charging Party 
 
 and 
 
 LOCAL 2513, AMERICAN FEDERATION 
 OF GOVERNMENT EMPLOYEES, AFL-CIO 
 Party In Interest 
 
                                 Case Nos. 2-CA-20669;  2-CA-30376
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices alleged in the consolidated complaint and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge found that the Respondent had not
 engaged in other unfair labor practices alleged in the consolidated
 complaint and recommended dismissal of those portions of the
 consolidated complaint.  Thereafter, the General Counsel and the Party
 In Interest /1/ filed exceptions and briefs, and the Respondent and AFGE
 filed oppositions, and briefs in support of their oppositions, to the
 General Counsel's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations, only to the extent
 consistent herewith.
 
    The Authority disagrees with the Judge's conclusion that the unfair
 labor practice charge in Case No. 2-CA-20669 was timely filed.  The
 charge and complaint in that case allege that the Respondent violated
 the Statute by allowing its supervisors to vote in an election conducted
 on January 12, 1982.  Although Wuchinich, the Charging Party, learned of
 that conduct in April 1982, about 3 months later, she did not file the
 charge upon which Case No. 2-CA-20669 is based until September 24, 1982,
 over 8 months after the election.  Section 7118(a)(4) of the Statute
 reads as follows:
 
          Section 7118.  Prevention of unfair labor practices
 
                                  * * * *
 
          (a)(4)(A) Except as provided in subparagraph (B) of this
       paragraph, no complaint shall be issued based on any alleged
       unfair labor practice which occurred more than 6 months before the
       filing of the charge with the Authority.
 
          (B) If the General Counsel determines that the person filing
       any charge was prevented from filing the charge during the 6-month
       period referred to in subparagraph (A) of this paragraph by reason
       of--
 
          (i) any failure of the agency or labor organization against
       which the charge is made to perform a duty owed to the person, or
 
          (ii) any concealment which prevented discovery of the alleged
       unfair labor practice during the 6-month period,
 
          the General Counsel may issue a complaint based on the charge
       if the charge was filed during the 6-month period beginning on the
       day of the discovery by the person of the alleged unfair labor
       practice.
 
 Thus, any charge alleging an unfair labor practice which is necessarily
 based on conduct or events which occurred more than 6 months before the
 filing of the charge is untimely under the provisions of section
 7118(a)(4)(A) of the Statute, unless it is established that the
 respondent agency or labor organization prevented the person filing the
 charge from discovering the allegedly unlawful conduct within the
 6-month limitations period by concealment or by failing to perform a
 duty owed to the charging party.  To allow the processing of this
 complaint which relies, as the basis for the allegation of violation, on
 events or conduct which occurred more than 6 months prior to the filing
 of the charge upon which the complaint is based (the January 12, 1982
 election) would be contrary to express statutory language.  /2/ In this
 regard, the House Committee Report accompanying H.R. 11280 stated with
 respect to section 7118(a)(4), which was ultimately enacted and signed
 into law without change, as follows:
 
          Subsection (a)(4) prohibits the issuance of a complaint based
       upon an unfair labor practice which occurred more than 6 months
       before the filing of the charge with the Authority unless the
       person aggrieved was prevented from filing the charge because the
       agency or labor organization against whom the charge is made
       failed to perform a duty owed to the aggrieved person, or due to
       concealment.  In addition, the concealment or failure to perform a
       duty must have prevented the discovery of the unfair labor
       practice within 6 months of its occurrence.  /3/
 
 Wuchinich learned that supervisors had voted about 3 months after the
 January 1982 election.  Thus, she was not prevented from discovery of
 the unfair labor practice within 6 months of its occurrence, and she was
 accordingly obliged to file the charge within 6 months thereof.
 Accordingly, the complaint in Case No. 2-CA-20669 must be dismissed.
 /4/
 
    The remaining portion of the consolidated complaint, Case No.
 2-CA-30376, in which the charge and complaint were timely filed, alleges
 that the Respondent interfered with AFGE by allowing supervisors to vote
 in that labor organization's January 18, 1983 election for officers in
 violation of section 7116(a)(1) and (3) of the Statute, and further
 alleges that the Respondent unlawfully assisted AFGE by deducting union
 dues from the wages of certain supervisors in violation of section
 7116(a)(1) and (3) of the Statute.  Finally, the consolidated complaint
 alleges that the Respondent, by failing to remove those supervisors from
 dues withholding, failed to comply with section 7115(b)(1) of the
 Statute /5/ and thereby violated section 7116(a)(1), (3) and (8).  /6/
 
    With respect to supervisors voting in internal union elections, the
 Judge found, relying on private sector authority, that such conduct by
 high level supervisors could constitute a violation, but that similar
 conduct by first line supervisors might not.  Noting that the record did
 not establish the level of the supervisors involved, the Judge concluded
 that the General Counsel had failed to sustain the burden of proving a
 violation.  The Authority does not adopt this portion of the Judge's
 Decision.  Section 7120(e) of the Statute expressly prohibits management
 officials, supervisors and confidential employees both from acting as a
 representative of a labor organization and from participating in its
 management.  /7/ The term "acting as a representative of a labor
 organization" is not limited in the statutory language or in the
 legislative history of section 7120(e).  Thus, "acting as a
 representative of a labor organization" clearly includes representation
 of the union as an officer, a steward, a member of a bargaining
 committee or in any other similar manner.  Since representation of a
 labor organization encompasses all such representative capacities, if
 the subsequent phrase "or participation in its management" is not to be
 interpreted as a mere redundancy, it must mean something different or
 additional.  /8/ In our view, taking part in the selection of union
 officers to lead and direct the organization, or taking part in the
 selection of union options on alternative courses of action, constitutes
 such "participation in the management of a labor organization," and is
 thereby proscribed by section 7120(e).  Nothing in the Statute or its
 legislative history suggests that such conduct by supervisors is
 permissible, regardless of their level in the organization of an
 activity.  Indeed, if management officials, supervisors or confidential
 employees were to influence a union's choice of bargaining goals by
 voting in an election to determine those goals, such involvement would,
 in our view, constitute sponsorship, control or, at the very least,
 assistance of the union in violation of section 7116(a)(3) of the
 Statute.  Similarly, if such individuals were to influence the selection
 of union negotiators or officers charged with achieving or administering
 those goals, the result also would violate section 7116(a)(3).  /9/
 Further, the harm done to the independence of a labor organization
 cannot be measured only in terms of the number of votes cast by
 management officials, supervisors or confidential employees.  Rather,
 such individuals, because of their positions of authority, could exert
 significant influence over rank and file employees in matters affecting
 the management or policies of the labor organization.  Accordingly, the
 Authority concludes that the Respondent unlawfully assisted a labor
 organization and additionally failed to comply with section 7120(e) of
 the Statute in violation of section 7116(a)(1) and (3) of the Statute
 /10/ by permitting its supervisors to vote in the Union's internal
 election conducted on January 18, 1983.
 
    The Judge also found that the Respondent violated section 7116(a)(1),
 (3) and (8) of the Statute by deducting union dues from supervisors'
 wages and by failing to remove them from dues withholding status.  /11/
 Section 7115(b) of the Statute requires that an allotment for the
 deduction of dues shall terminate when the agreement between the agency
 and the exclusive representative involved ceases to be applicable to the
 employee.  The Authority has previously held that when an employee has
 been promoted to a supervisory position, the collective bargaining
 agreement ceases to be applicable to the employee and effectuation of
 the employee's allotment must terminate pursuant to section 7115 of the
 Statute.  /12/ If termination of such an allotment is required by the
 Statute when an employee is promoted out of the bargaining unit, then it
 follows that the failure to terminate allotments of supervisors who were
 outside the unit at all times material herein violates section
 7116(a)(1) and (8) of the Statute as well.  /13/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the United States Department of Labor
 shall:
 
    1.  Cease and desist from:
 
    (a) Permitting supervisors to vote in internal union elections of
 Local 2513, American Federation of Government Employees, AFL-CIO, or any
 other labor organization.
 
    (b) Failing and refusing to comply with the provisions of section
 7115(b) of the Federal Service Labor-Management Relations Statute by
 withholding and deducting dues from the pay of certain of its
 supervisors who are not included within the bargaining unit exclusively
 represented by Local 2513, American Federation of Government Employees,
 AFL-CIO.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its 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) Issue a directive to supervisors not to vote in internal union
 elections of Local 2513, American Federation of Government Employees,
 AFL-CIO, or any other labor organization.
 
    (b) Cease withholding and deducting dues from the pay of certain of
 its supervisors who are not included within the bargaining unit
 exclusively represented by Local 2513, American Federation of Government
 Employees, AFL-CIO.
 
    (c) Cease remitting to Local 2513, American Federation of Government
 Employees, AFL-CIO, any dues withheld and deducted from the pay of such
 supervisors who are not included within the bargaining unit.
 
    (d) Post at all its facilities in Region II 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
 Regional Administrator, or a designee, and shall be posted and
 maintained for 60 consecutive days thereafter in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, 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 complaint in Case No. 2-CA-20669 be,
 and it hereby is, dismissed.
 
    Issued, Washington, D.C. September 26, 1985
 
                                       (s) HENRY B. FRAZIER III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s) WILLIAM J. MCGINNIS JR.
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT permit supervisors to vote in internal union elections of
 Local 2513, American Federation of Government Employees, AFL-CIO, or any
 other labor organization.
 
    WE WILL NOT fail or refuse to comply with the provisions of section
 7115(b) of the Federal Service Labor-Management Relations Statute by
 withholding and deducting dues from the pay of supervisors who are not
 included within the bargaining unit exclusively represented by Local
 2513, American Federation of Government Employees, AFL-CIO.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL issue a directive to supervisors not to vote in internal
 union elections of Local 2513, American Federation of Government
 Employees, AFL-CIO, or any other labor organization.
 
    WE WILL cease withholding and deducting dues from the pay of
 supervisors who are not included within the bargaining unit exclusively
 represented by Local 2513, American Federation of Government Employees,
 AFL-CIO.
 
    WE WILL cease remitting to Local 2513, American Federation of
 Government Employees, AFL-CIO, any dues withheld and deducted from the
 pay of supervisors who are not included within the bargaining unit.
                                       (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 of compliance
 with its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region II, whose address
 is:  26 Federal Center Plaza, Room 2237, New York, New York 10278, and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 2-CA-20669
                                                 2-CA-30376
 
    Cynthia Harman, Esq.
    For the Respondent
 
    Alfred R. Johnson, Esq.
    For the General Counsel
 
    Susan Wuchinich
    For the Charging Party
 
    Peter Richardson
    For the Party in Interest
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to an Order Consolidating Cases, Complaint and Notice of
 Hearing issued on August 31, 1983, by the Acting Regional Director for
 the Federal Labor Relations Authority New York, N.Y. Region, a hearing
 was held before the undersigned in January 10, 1984, at New York, N.Y.
 
    These cases arise under the Federal Service Labor-Management
 Relations Statute (herein called the Statute).  Case No. 2-CA-20669 is
 based on a charge filed on September 24, 1982, by Susan Wuchinich, an
 Individual, against United States Department of Labor (herein called
 Respondent).  /14/ Case No. 2-CA-30376 is based on First Amended Charge
 filed on August 30, 1983, by Susan Wuchinich against the United States
 Department of Labor, or Respondent.  /15/
 
    The Complaint herein alleged, in substance, (a) that on or about
 January 12, 1982 and January 18, 1983, Respondent interferred with,
 sponsored, controlled, or otherwise assisted the Union by allowing
 managers and supervisors to vote in an Election of Union officers held
 on said dates;  (b) that since November, 1981, Respondent has assisted
 the Union by deducting dues from the wages of supervisors or management
 officials and remitting said monies to the Union, and has failed to
 remove the supervisors or management officials from dues withholding as
 required by Section 7115(b) of the Statute-- all in violation of Section
 7116(a)(1), (3) and (8) thereof.
 
    Respondent's Amended Answer, dated January 9, 1984, denied that the
 National Council of Field Labor Locals (AFGE) represents employees in
 the Washington, D.C. area;  denied that the said National Council
 delegated to the Union herein (Local 2513, AFGE) the Authority to act as
 its representative to bargain on behalf of unit employees in
 Respondent's Region II.  Respondent alleged it bargains with designated
 representatives by the National Council and not with local unions.  It
 admitted that the individuals named in the complaint, /16/ except for
 Eric Nielsen and Nicholas Snowdon, /17/ were still employed by
 Respondent.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings and Fact
 
    1.  At all times material herein the National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO (National
 Council), has been and still is the exclusive bargaining representative
 of all employees throughout the nation in field duty stations of
 Respondent, including field duty stations within the Washington, D.C.
 metropolitan area and Respondent's Region II, excluding certain
 managerial personnel, supervisors and other specified classes of
 employees.
 
    2.  At all times material herein the National Council has delegated
 to Local 2513, AFGE (Union) authority to act as its representative for
 the purposes of collective bargaining on behalf of unit employees in
 Respondent's Region II.
 
    3.  In respect to Case No. 2-CA-20669, record facts show that an
 Election of Union officers was scheduled to be held on January 12, 1982.
  The Union officer to be elected were:  President, Executive
 Vice-President, Secretary-Treasurer, Recording Secretary,
 Sergeant-at-Arms, and 5 Vice-Presidents.
 
    4.  Prior to the aforesaid scheduled election, the Union's Election
 committee sent a letter dated December 14, 1981 to its members
 announcing the forthcoming election.  Included with the letter was a
 mail ballot with the names of the candidates for each office, a
 self-addressed stamped envelope, and instructions re voting procedure
 and for the return of the ballot by mail.
 
    5.  The eligibility list for the election on January 12, 1982 was the
 bi-weekly Union dues report for the pay period ending November 28, 1981.
  This report listed all the employees and whether or not their dues had
 been checked off by Respondent.
 
    6.  The tally of ballots was conducted at Hempstead, N.Y. on January
 12, 1982, after the ballots had been sent in as instructed.  The results
 thereof were announced at a general membership meeting on January 19,
 1982.  In respect to the position of Executive Vice-President, none of
 the candidates received a majority of the votes.  Hence, a run-off
 election for this position was held on February, 1982 and a particular
 individual was elected.
 
    7.  Prior to the run-off, and in January, 1982, Susan Wuchinich, who
 was elected Secretary-Treasurer of the Union, called Harold LeMar,
 chairman of the Union's Election Committee.  She requested that he send
 her the records and documents of the election.  LeMar stated he
 preferred to wait till the run-off election took place and would send
 them thereafter.  On February, Wuchinich repeated her request to LeMar
 for the materials.  The latter informed the secretary-treasurer that he
 wanted to keep the records until they were examined by an AFGE official
 since there had been a Union protest over the election.  When Wuchinich
 asked for the date again in March, LeMar stated he was going on vacation
 and would sent them upon his return.
 
    8.  Toward the end of April, 1982, the election records were received
 by Wuchinich.  Upon examination of the material, she discovered that
 about six or seven individuals who voted in the January 1982 election
 were supervisors or management officials.  /18/
 
    9.  By letter dated May 8, 1982, Wuchinich notified the Labor
 Management Services Administration (LMSA) that she protested the January
 1982 Election.  She based her complaint on the grounds that:  (a) the
 Union Election committee disregarded the attendance requirement for
 candidates for several offices;  (b) supervisory personnel, whom she
 named, received ballots and voted in the election.
 
    10.  It was determined by LMSA that the conduct of the January, 1982
 election may have violated Section 208.29 of the Code of Federal
 Regulations.  This was due to the failure of the Union to apply
 uniformly the meeting attendance requirement set forth in the Union's
 by-laws.  /19/ Although waived by the Union, the latter failed to notify
 its membership of this waiver.  As a result of this determination, the
 Union agreed to conduct new nominations and a new election of officers
 under the supervision of LMSA.
 
    11.  In a letter dated October 16, 1982, Wuchinich requested the
 Director of LMSA to rule on her original protest that the voting in the
 January, 1982 election was improper and violative of AFGE Constitution,
 Article 3, Section 3.
 
    12.  The Director replied to the October 16, 1982 letter and notified
 Wuchinich that election of union officers is governed by the standards
 set forth in Section 401 of the Labor-Management Reporting and
 Disclosure Act of 1959.  He advised further that under normal
 circumstances it would be violative of Section 401 LMRDA for a
 supervisor to hold office in a labor organization due to an apparent
 conflict of interest.  However, he added that such Act does not prohibit
 members who are supervisors from voting in an election;  that the right
 of these members to participate in the local's affairs, including voting
 for officers, is to be decided by each union.  Thus, he concluded that,
 unless prohibited by the labor organization's constitution and by-laws
 or established practice, members who are supervisors would be eligible
 to vote in officer-elections.  Since the members had voted in past local
 elections, no violation occurred when those supervisors were permitted
 to vote.
 
    13.  Arrangements were made for a new election of officers of the
 Union.  The eligibility list for this election was Respondent's
 bi-weekly Union dues withholding list dated November 27, 1982.  The
 ballot with self-addressed stamped envelopes were sent to voting
 members.  /20/
 
    14.  In respect to Case No. 2-CA-30376, record facts show that the
 election of Union officers was scheduled to be held on January 18, 1983.
  The same positions were to be filed by reason of this election as in
 the January 12, 1982 election.
 
    15.  Under the supervision of LMSA the tally of ballots took place on
 January 18.  As occurred in the 1982 Election, supervisors had voted in
 the new Election.  /21/ Since none of the candidates for positions of
 Recording-Secretary and Sergeant-at-Arms received a clear majority of
 the ballots which were cast, a run off election for those offices was
 held on March 8, 1983.
 
    16.  On April 7, 1983, the Director of LMSA issued a written
 determination that a violation of Section 208.29 of the Rules and
 Regulations, which may have affected the outcome of the Union by the
 Election held in January, 1982, has been remedied by the new election
 held on March 8, 1983;  that enforcement proceedings to set aside the
 1982 Election are not warranted.
 
    17.  In accord with the stipulation between the parties, record facts
 disclose that from November, 1981, and continuing to at least the first
 week of January, 1984, Respondent deducted dues from the wages of the
 following employees who are deemed supervisors:  Roosevelt Bynoe, Paul
 Cash, Lawrence Cimato, Robert Collins, Nicholas DiArchangel, Dennis
 Gaughan, Frances Morse, Richard Palmieri, Richard Pierce, James
 Register, Edward Scott, Jerry Wilson, Chester Whiteside.
 
                                Conclusions
 
    There are four principal issues presented herein for determination.
 They are as follows:
 
          1.  Whether the charge in Case No. 2-CA-20669, which was filed
       on September 21, 1982, was timely under Section 7118(a)(4) of the
       Statute.
 
          2.  Whether the Authority lacks jurisdiction herein, in view of
       Section 7120(d) of the Statute which vests supervision of union
       elections in the Assistant Secretary for Labor-Management
       Relations of the Department of Labor.
 
          3.  Whether the Respondent agency violated Section 7116(a)(1)
       and (3) of the Statute by virtue of its supervisors having voted
       in the union election on January 12, 1982 and January 18, 1983 for
       union officers.
 
          4.  Whether the Respondent agency unlawfully assisted Local
       2513, AFGE, by deducting and withholding dues from wages of
       supervisors, and remitting same to Local 2513, AFGE, from
       November, 1981 to January, 1984-- all in violation of Section
       7116(a)(1)(3) and (8) of the Statute.  /22/
 
              Timeliness of the Charge in Case No. 2-CA-20669
 
    In its brief to the undersigned the Unions herein challenges the
 timeliness of the charge filed in September 21, 1982, against
 Respondent.  It is contended that the alleged wrongful conduct, i.e. the
 voting in the January 12, 1982 election for union officers by
 supervisors, occurred more than six months prior to filing said charge.
 Accordingly, it is urged by the Union that, under Section 7118(a)(4) of
 the Statute, the charge in Case No. 2-CA-20669 was not timely, that the
 Complaint in said case, having been improperly issued, should be
 dismissed.
 
    Seeking to preclude the filing of stale charges, Section 7118(4)
 provides as follows:
 
          (A) Except as provided in subparagraph (B) of this paragraph,
       no complaint shall be issued based on any alleged unfair labor
       practice which occurred more than 6 months before the filing of
       the charge with the Authority.
 
          (B) If the General Counsel determines that the person filing
       any charge was prevented from filing the charge during the 6-month
       period referred to in subparagraph (A) of this paragraph by
       reasons of--
 
          (i) any failure of the agency or labor organization against
       which the charge is made to perform a duty owed to the person,
       or--
 
          (ii) any concealment which prevented discovery of the alleged
       unfair labor practice during the 6-month period, The General
       Counsel may issue a complaint based on the charge if the charge
       was filed during the 6-month period beginning on the day of the
       discovery by the person of the alleged unfair labor practice.
 
    It is contended by General Counsel that the instant case is governed
 by subdivision B(ii) of Section 7118(4) of the Statute which pertains to
 any concealment preventing the discovery of the unfair labor practice
 during the 6-month period.  The particular language in that subdivision
 would be applicable to instances, as the one at hand, where material or
 information is concealed by one other than the party against whom the
 charge is filed.
 
    Reasonable construction of the foregoing provision leads to the
 conclusion that Congress intended to provide a party with 6 months for
 filing of a charge after alleged unlawful conduct occurred.  Thus, if at
 any time during the 6 month period a party is prevented from discovering
 the unlawful practice due to concealment, he should not be penalized by
 affording him less than the allotted period.  In such an instance, the
 party may properly be allowed a full 6 months from the discovery of the
 said conduct.  Were it to be concluded that it is sufficient if a party
 is able to file a charge during the original 6 month period, data could
 be concealed until the "eleventh" hour and close out any opportunity for
 him to file within 6 months.
 
    In the case at bar Wuchinich was prevented from discovering until
 April, 1982 the fact that supervisors voted in the January 12, 1982
 Election.  By reason of the Union's refusal to send her the records
 until April, Wuchinich did not have a period of 6 months from the
 occurrence (voting by supervisors) within which to file her charge.  She
 had, in fact, about 3 months.  Further, there is no evidence that
 Wuchinich learned beforehand that the supervisors had voted in the
 election for union officers.  Thus, unless the circumstances herein do
 not fall within the statutory proscription set forth in 7118(4)(B)(ii),
 the charging party was entitled to file the charge within 6 months
 following April, 1982.  /23/
 
    However, consideration must be given to the word "concealment" which
 is the basis for tolling the statute and extending the time period for
 filing the charge.  Neither legislative history nor decisioned law in
 the public sector discloses what was intended by the use of said reward.
  It should be noted that Webster's Third International Dictionary
 defines "conceal" as, inter alia, meaning "withholding knowledge" or
 "refrain from revealing."
 
    While it may be argued that concealment implies a deliberate or
 wilful intent to hide, I am persuaded that the term should encompass a
 failure or refusal to disclose information forming the basis of unlawful
 conduct.  Further, the provision under 7118(4)(B)(ii) does not, as does
 7118(4)(B)(i), allude to conduct on the part of the party against whom
 the charge is filed in order to toll the 6 month period.  Thus,
 concealment by one other than such party suffices to extend the
 limitation period.  Since Wuchinich was not furnished the records by the
 Union until April, 1982, despite her repeated requests for same, I
 conclude that the alleged unlawful conduct, i.e. voting by supervisors
 in the election of Union officers, was concealed from her within the
 meaning of the Statute.  Accordingly, and in view of the foregoing, it
 is determined by the undersigned that the charge was timely filed on
 September 21, 1982, within 6 months from the date (April, 1982) when
 such conduct was discovered.
 
    Jurisdiction of FLRA
 
    Both the Union and Respondent assert that exclusive jurisdiction to
 determine the controversy herein, i.e. voting eligibility, is vested in
 the Assistant Secretary of Labor for Labor-Management Relations.  It is
 insisted that Section 7120 of the Statute provides for the latter to
 oversee internal union affairs.  Further, guidance in respect thereto is
 furnished by the Rules and Regulations of the Labor Management Services
 Administration /24/ which regulates union elections and the
 participation of supervisors or others in union affairs.  In support of
 this position the attention of the undersigned has been called to
 American Federation of Government Employees, Local 2000, AFL-CIO, 8 FLRA
 No. 125.
 
    Although Section 7120(d) of the Statute states that complaints
 concerning violations of 7120 shall be filed with the Assistant
 Secretary, it seems clear that it is referable to internal affairs of a
 union.  Where a case involves such standards of conduct involving
 internal union matters, the Authority would seemingly defer jurisdiction
 to the Assistant Secretary.  Such matters might well include proper
 nominating procedures, procedural practices for union election, and
 filing acquirement.  /25/ In American Federation of Government
 Employees, Local 2022, AFL-CIO, supra discipline of a union member in
 accordance with the constituted by-laws of the union was deemed a
 legitimate internal union officers.  The Authority concluded it was not
 litigable as an unfair labor practice.
 
    However, the fact that the Assistant Secretary has set forth
 regulations /26/ governing the conduct of elections does not, in my
 opinion, deprive the Authority from exercising jurisdiction when conduct
 constitutes an unfair labor practice under the Statute.  I do not deem
 the standards of conduct which regulate union internal affairs as
 preempting a determination by the Authority as to infringement of the
 Statute.  In the case at bar, the allegations in the Complaint go to the
 commission of unlawful acts by the agency.  While these acts may have
 occurred in connection with the Union election of officers, they are
 alleged to be unfair labor practices.  As such, the allegations do not
 involve pure internal affairs of the Union, and do not involve standards
 of conduct of a Union in connection therewith.  Accordingly, I conclude
 the Authority has jurisdiction in respect to the alleged acts of
 assistance and interference by Respondent due to supervisors voting in
 the election of union officers.
 
  Voting By Supervisor In Election of Union Officers As Allegedly
 Violative of Section 7116(a)(1) and (3) of the Statute.
 
    General Counsel, in maintaining that the voting by 13 supervisors in
 the Election of Union officers ran afoul of the Statute, relies in large
 part upon Section 7120(e).  This latter provision states as follows:
 
          This chapter does not authorize participation in the management
       of a labor organization or acting as a representative of a labor
       organization by a management official, a supervisor, or a
       confidential employee, except as specifically provided in this
       chapter, or by an employee if the participation or activity would
       result in a conflict or apparent conflict of interest or would
       otherwise be incompatible with law or with the official duties of
       the employee.
 
 It is contended that participation by supervisors in such a union
 election necessarily interferes with the internal affairs of the labor
 organization.  This results from the fact that the supervisors would be
 in a position to determine the officials of the Union, and thus they
 could conceivably select the individuals with whom they might negotiate
 or bargain.  Furthermore, the General Counsel draws attention to the
 private sector where, under the National Labor Relations Act, it has
 been held that participation of supervisors in selecting union officials
 constitutes interference in the internal officers of a union.  See
 Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174.
 
    The issue involved herein is one of first impression in the public
 sector.  It has, however, been the subject of discussion and resultant
 decisions in the private sector.  In the lead case, Nassau and Suffolk
 Contractors Association, supra, the National Labor Relations Board,
 (herein called the Board) concluded that high ranking supervisors could
 not lawfully participate in elections to determine who is to administer
 the affairs of a union.  As stated by the Board, "It is quite
 conceivable that in a closely divided vote executive and high ranked
 supervisors would have the balance of power and be in a position to
 select the union officials who are to deal with them in their separate
 capacity as employer agents." It was held therein that voting by
 supervisors in the union election constituted interference with the
 internal administration of the union.  This holding was followed by the
 Board in Employing Bricklayers Association, 127 NLRB 188, enforced in
 292 F.2d 627 (C. CA. 3, 1961), which adhered to the doctrine that the
 mere act of voting in a union election by employer officers and
 supervisory employees constituted a form of interference with the
 administration of the union in violation of the National Labor Relations
 Act.  /27/
 
    The foregoing principle of law was somewhat refined in Local 636,
 Plumber v. NLRB (Detroit Association of Plumbing Contractors), 287 F.2d
 354, (CA D.C.), 1961.  While agreeing with the Board that active
 participation in union affairs is properly deemed "interference," the
 Circuit Court concluded that not every supervisor should be barred from
 active participation in a journeymen's union.  It set forth three items
 for consideration in determining whether participating in union affairs
 should be viewed as improper:  (1) the nature of the supervisory
 position-- how completely the responsibilities of the position identify
 its holder with management;  (2) apparent permanence of the supervisory
 position - how long held, and how high it is in the company's hierachy
 of supervisors;  (3) the extent to which the supervisor's position is
 included in or excluded from the bargaining unit.  /28/ In respect to
 one supervisor, who had 40-60 men under him including 6-10 foremen, the
 Court remanded the case to the Board to determine whether, in light of
 these considerations, the supervisors attendance at union meetings and
 voting in its election was improper.
 
    Except for the case law alluded to, very little light is shed on
 whether an agency such as Respondent interferes with the internal
 administration of a union when its supervisors vote in an election of
 union officers.  The sole express declaration in this respect is seen in
 the LMSA Rules and Regulations where, in Section 425.91, it is stated
 that "voting in union elections by employers, self-employed persons,
 supervisors or other persons who are considered to be part of management
 is not precluded by Title III of the Act . . . " /29/ Nevertheless, this
 provision does not deal with, or determine, whether such voting by
 supervisors runs counter to Section 7120(e) of the Statute and would be
 violative of Section 7116(a)(1) and (3) thereof.
 
    An analysis of the cases in the private sector reflects that neither
 the courts nor the National Labor Relations Board looks askance at the
 mere membership of supervisors in a union.  However, when supervisors
 hold office in a labor organization, or vote in elections, the employer
 may well be deemed to have interfered in the internal affairs of the
 union.  The ratio decidendi of such conclusion, nevertheless, is that
 the supervisors are thus enabled to select the union officials with whom
 they may be bargaining.  Accordingly, the courts have focused on the
 particular status of supervisors voting in a union election to determine
 whether they are high in the hierachy of management.  Further, as
 revealed in Local 636, Plumber v. NLRB, supra, the Circuit court was
 concerned with the nature of the supervisor's position, his identity
 with management, and his responsibilities.
 
    Turning to the case at bar, I am persuaded that the same
 considerations should prevail in the public sector and govern the
 instant matter.  Mere voting in an election of officers by supervisors
 may, or may not, constitute interference in the administration of the
 affairs of a labor organization.  A determination in that regard might
 well depend on the status of said supervisors and their standing or
 position with Respondent.  In some instances such individuals would not
 be negotiating with the bargaining agent, and these supervisors may well
 have no dealings with the union officials.  Nothing in Section 7120(e)
 calls for a contrary conclusion.  The language therein proscribes a
 supervisor's participating in management of a labor organization if such
 activity result in a conflict of interest, is incompatible with law, or
 the official duties of the employee.  Accordingly, it seems apparent
 that the status of the supervisor and his standing in management's
 hierachy - as deemed significant by the courts - should be determinant
 factors in deciding whether their voting was proper.  /30/ The standing
 of the 13 supervisors herein who voted in the January, 1982 and 1983
 elections does not appear in the record since no evidence was introduced
 to demonstrate the nature of the position and the extent of managerial
 identity.  Thus, it cannot be determined whether voting by the
 Respondent's supervisors in the Union election resulted in a conflict of
 interest under Section 7120(e) of the Statute.  In sum, I find that
 General Counsel has failed to establish that the supervisors were high
 ranking individuals, and so identified with management, that one may
 conclude the Respondent interfered with the administration of the Union
 by permitting them to vote in the latter's election.  /31/ Accordingly,
 since the record does not contain adequate and sufficient evidence as to
 the status of the supervisors who voted for the Union officers, I find
 that General Counsel has not sustained his burden of proving a violation
 of Section 7116(a)(1) and (3) in this regard.
 
  Withholding of Supervisors' Union Dues By Respondent As Unlawful
 Assistance In Violation of Section 7116(a)(1), (3) and (e) of the
 Statute.
 
    It is undisputed that Respondent deducted dues from the wages of the
 13 supervisors /32/ between November, 1981 and January, 1984.  Moreover,
 Respondent concedes that such deduction flouted Section 7115(b) of the
 Statute and constituted an unfair labor practice.  This section
 authorizes an agency to deduct dues from the pay of an employee in an
 appropriate unit and assign same to the bargaining representative.
 However, when the employee is in a supervisory position and outside the
 bargaining unit, the collective bargaining agreement ceases to be
 applicable to him.  An allotment pursuant to Section 7115 must cease.
 See Internal Revenue Service, Fresno Service Center, Fresno, California,
 7 FLRA No. 54.  Accordingly, I conclude that by deducting dues from the
 pay of the 13 named supervisors herein between November 1981 and
 January, 1984, and remitting same to the Union, Respondent failed to
 comply with the aforesaid section of the Statute and rendered assistance
 to the bargaining representative - all in violation of Section
 7116(a)(1), (3) and (8).
 
    Having found that Respondent did not violate Section 7116(a)(1) and
 (3) of the Statute by virtue of the 13 named supervisors having voted in
 the election of Union officers on January 12, 1982 and January 10, 1983,
 I recommend dismissal of the complaint in these respects.  Having found
 that Respondent violated Sections 7116(a)(1), (3) and (8) of the Statute
 by virtue of deducting Union dues from the pay of the 13 named
 supervisors between November, 1981 and January, 1984 and remitting same
 to the Union herein, I recommend the Authority issue the following:
 
                                   ORDER
 
    Pursuant to Section 7118 of the Statute and Section 2423.29 of the
 Rules and Regulations, it is hereby ordered that the United States
 Department of Labor shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to comply with the provisions of
       Section 7115(b) of the Federal Service Labor-Management Relations
       Statute by withholding and deducting dues from the pay of
       employees who are supervisors and not included within the
       bargaining unit.
 
          (b) Assisting or supporting Local 2513, American Federation of
       Government Employees, AFL-CIO, representative of the exclusive
       bargaining agent, by withholding and deducting dues from the pay
       of employees who are supervisors, and not included in the
       bargaining unit, and by remitting said dues to Local 2613,
       American Federation of Government Employees, AFL-CIO.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Discontinue and cease withholding and deducting dues from
       the pay of its employees who are supervisors and not included
       within the bargaining unit.
 
          (b) Discontinue and cease remitting to Local 2513, American
       Federation of Government Employees, AFL-CIO, any dues withheld and
       deducted from the pay of its employees who are supervisors and not
       included within the bargaining unit.
 
          (c) Post at all its facilities in Region II where dues were
       deducted from the pay of its employees who were supervisors, and
       transmitted to Local 2513 American Federation of Government
       Employees, AFL-CIO, 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 Regional Administrator
       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 to employees are customarily
       posted.  Reasonable steps shall be taken by Respondent to insure
       that such notices are not altered, defaced, or covered by any
       other material.
 
          (d) Notify the Federal Labor Relations Authority, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply therewith.
 
                                       (s) WILLIAM NAIMARK
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  July 30, 1984
    Washington, DC
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to comply with the provisions of Section
 7115(b) of the Federal Service Labor-Management Relations Statute by
 withholding and deducting dues from the pay of employees who are
 supervisors and not included within the bargaining unit.
 
    WE WILL NOT assist or support Local 2513, American Federation of
 Government Employees, AFL-CIO, representative of the exclusive
 bargaining agent, by withholding and deducting dues from the pay of
 employees who are supervisors, and not included within the bargaining
 unit, and by remitting said dues to Local 2513, American Federation of
 Government Employees, AFL-CIO.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL discontinue and cease withholding and deducting dues from the
 pay of our employees who are supervisors and not included within the
 bargaining unit.
 
    WE WILL discontinue and cease remitting to Local 2513, American
 Federation of Government Employees, AFL-CIO, any dues withheld and
 deducted from the pay of our employees who are supervisors and not
 included within the bargaining unit.
                                       (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 II,
 whose address is:  26 Federal Plaza, Room 24-102, New York, New York
 10278 and whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Pursuant to section 2423.19(q) of the Authority's Rules and
 Regulations, Local 2513, American Federation of Government Employees,
 AFL-CIO (hereinafter, AFGE) was permitted by the Judge to appear as a
 party in interest.
 
 
    /2/ See United States Department of the Interior, Lower Colorado Dams
 Project, Water and Power Resources Service, 14 FLRA 539, 542-543(1984).
 
 
    /3/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess., at 52-53(1978),
 reprinted in H.R. Subcomm. on Postal Personnel and Modernization of the
 Comm. on Post Office and Civil Service, 96th Cong., 1st Sess.,
 Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 698-699
 (1979).
 
 
    /4/ In view of the Authority's finding in this regard, it is
 unnecessary to pass upon the Judge's remaining conclusions concerning
 the applicability of section 7118(a)(4)(B) of the Statute to the facts
 of this case.
 
 
    /5/ Section 7115(b)(1) provides in pertinent part:
 
          Section 7115.  Allotments to representatives
 
                                  * * * *
 
          (b) An allotment . . . for the deduction of dues with respect
       to any employee shall terminate when--
 
          (1) the agreement between the agency and the exclusive
       representative involved ceases to be applicable to the employee .
       . . (.)
 
 
    /6/ Section 7116(a)(1), (3) and (8) provides:
 
          Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                * * * * .
 
          (3) to sponsor, control, or otherwise assist any labor
       organization, other than to furnish, upon request, customary and
       routine services and facilities if the services and facilities are
       also furnished on an impartial basis to other labor organizations
       having equivalent status;
 
                                  * * * *
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /7/ Section 7120(e) provides:
 
          Section 7120.  Standards of conduct for labor organizations
 
                                  * * * *
 
          (e) This chapter does not authorize participation in the
       management of a labor organization or acting as a representative
       of a labor organization by a management official, a supervisor, or
       a confidential employee, except as specifically provided in this
       chapter, or by an employee if the participation or activity would
       result in a conflict or apparent conflict of interest or would
       otherwise be incompatible with law or with the official duties of
       the employee.
 
 
    /8/ "(I)t is a fundamental principle of statutory construction that
 'effect must be given, if possible, to every word, clause and sentence
 of a statute.' . . . so that no part will be inoperative or superfluous,
 void or insignificant." Indianapolis Power and Light Co. v. Interstate
 Commerce Commission, 687 F.2d 1098, 1101 (7th Cir. 1982), quoting from
 2A Sutherland, Statutory Construction Section 46.6.  See also, to the
 same effect, National Association of Recycling Industries, Inc. v.
 Interstate Commerce Commission and United States of America, 660 F.2d
 795, 799 (D.C. Cir. 1981);  In Re Surface Min. Regulation Litigation,
 627 F.2d 1346, 1362 (D.C. Cir. 1980).
 
 
    /9/ Although no charge or complaint was filed against the labor
 organization in the instant case, it is evident that, since supervisory
 voting in internal union elections violates section 7120(e) of the
 Statute, and since labor organizations uniquely control participation in
 such elections, permitting such activity to occur would also violate
 section 7116(b)(8) of the Statute if so charged.  Section 7116(b)(8)
 provides that it is an unfair labor practice for a labor organization
 "to otherwise fail or refuse to comply with any provision of this
 chapter."
 
 
    /10/ The Authority notes that the complaint did not contain an
 allegation that by failing to comply with section 7120(e), the
 Respondent also violated section 7116(a)(8) of the Statute.
 
 
    /11/ The respondent filed no exceptions to the Judge's findings in
 this regard.  However, AFGE did so except.
 
 
    /12/ Department of the Air Force, 3840th Air Base Group, Goodfellow
 Air Force Base, Texas, 9 FLRA 394, 396(1982), enforcement denied on
 other grounds sub nom. AFGE Local 1816 v. FLRA (Goodfellow Air Force
 Base, Texas), 715 F.2d 224 (5th Cir. 1983).
 
 
    /13/ In view of our finding herein, it is unnecessary to pass upon
 whether this conduct also violated section 7116(a)(3) of the Statute.
 
 
    /14/ The charge in 2-CA-20669 alleged a violation by Respondent of
 7116(a)(1) and (3) based on supervisors having voted in an Election in
 December, 1981, of officers for Local 2513, American Federation of
 Government Employees, AFL-CIO (herein called the Union).
 
 
    /15/ The original charge in 2-CA-30376 was filed by Susan Wuchinich
 on April 11, 1983, alleging a violation by Respondent of 7116(a)(1) and
 (3) based on an election being held on January 18, 1983 for Unio