24:0320(37)CO - NFFE and Henry M. Thompson -- 1986 FLRAdec CO
[ v24 p320 ]
The decision of the Authority follows:
24 FLRA No. 37 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, WASHINGTON, D.C. Respondent and HENRY M. THOMPSON, AN INDIVIDUAL Charging Party Case No. 4-CO-20019 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions to the attached Decision of the Administrative Law Judge filed by the General Counsel and cross-exceptions filed by the Respondent. The Respondent also filed an opposition to the General Counsel's exceptions. The complaint alleged that the Respondent, the National Federation of Federal Employees, Washington, D.C. (NFFE National), breached its duty of fair representation under section 7114(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) and thereby violated section 7116(b)(1) and (8) of the Statute when it failed to represent the Charging Party, Henry M. Thompson, in a proceeding conducted by the Merit Systems Protection Board (MSPB). We conclude, for the reasons discussed below, that the Respondent did not violate section 7116(b)(1) and (8) and therefore did not commit an unfair labor practice. II. Facts Thompson was employed by the U.S. Coast Guard in Miami Beach, Florida in the collective bargaining unit represented by Local 1485 of the National Federation of Federal Employees, an affiliate of NFFE National. Following Thompson's removal from employment on September 11, 1981, he wrote to NFFE National and requested representation at his MSPB appeals hearing on his discharge. NFFE National replied that its policy was not to provide such representation from the National Office level, but that it would in his case ask his Local Union (Local 1485) and a National Representative located in Florida to provide him assistance. On October 4, 1981, Thompson received an order from MSPB setting his hearing for November 24. Through Local 1485, Thompson sought assistance from National Representative Bob Brown. Brown, who worked out of Orlando, Florida, met with Thompson in Miami in late October, agreed to assist him in his MSPB hearing, and told Thompson that he would contact him the next day. Brown did not contact Thompson, and on November 5 Thompson wrote Brown that the hearing was set for November 24. Brown was not able to be present at that time and suggested through Local 1485 that Thompson ask for a postponement of his hearing. Thereafter, MSPB scheduled the hearing for December 16 in Miami. Brown told Thompson that he would be available for the hearing on that day. The hearing was later rescheduled by MSPB for Atlanta, Georgia, on February 24, 1982. Thompson notified Brown of this rescheduled date and location by phone. During the conversation, Brown told Thompson that the National Representative in Atlanta was being transferred. Thompson asked if Brown would be present at his hearing. Brown stated that if he could not attend the Atlanta hearing, another representative would. Unable to reach Brown by phone on several occasions in January, Thompson sent a letter to Brown on February 3, indicating that the MSPB hearing was set for February 18 in Atlanta and requesting representation by a qualified union representative. Thompson received no further assistance nor did he have any further contact with anyone from the Union before the MSPB hearing, at which Thompson appeared on his own behalf. The parties stipulated that NFFE National's conduct in this matter was not motivated by malice. III. The Judge's Findings The Judge found that the case presented three issues: (1) may NFFE National be held responsible for a violation of the duty to fairly represent an employee when it is not the recognized collective bargaining agent of the employee involved; (2) if the National has the duty to represent the employee, does the duty extend to proceedings before the MSPB; and (3) if the duty exists, what standard of conduct is to be used to ascertain whether that duty was breached. As to the first issue, the Judge found that since NFFE National was not the exclusive representative for the unit in which Thompson was employed, it had no duty under section 7114(a)(1) of the Statute notwithstanding the fact that Local 1485 is an affiliate of the National. Second, the Judge found that, assuming that the National could be held responsible for the violations alleged in the complaint, it has no duty to represent employees in MSPB proceedings in any event and therefore could not have breached any duty to represent Thompson. The Judge stated that if the National agreed to volunteer, its services to Thompson, the matter was one of concern strictly between Thompson and the National and any question of the National's duty in that situation should not be resolved in this unfair labor practice forum. Finally, the Judge found that in view of his conclusions as to the first two issues, he did not have to reach the question of what standard of conduct a union would be charged with in fulfilling its duty to represent employees in the collective bargaining unit and whether the National failed to meet that duty. He went on to state, however, that such a duty under the Statute exists and, but for his earlier conclusions, he would find that the National's failure to be present at the MSPB hearing, after having agreed to represent Thompson and no good cause having been found which would excuse or explain the National's failure to appear, would constitute arbitrary and capricious conduct in violation of the Statute. In view of his findings and conclusions, the Judge recommended that the Authority dismiss the complaint. IV. Positions of the Parties The General Counsel excepted to the Judge's conclusions as to the first and second issues and to his conclusion that the National was blameless in the circumstances of this case. The Respondent, NFFE National, agreed with the Judge's decision except as to his conclusion on the third issue that the National's failure to appear at the MSPB hearing was arbitrary and capricious. V. Analysis As to the first issue, we find, contrary to the Judge, that as a result of its actions in this case NFFE National may be held responsible for the violations alleged in the complaint. While Local 1485 was the certified representative of the unit in which Thompson was employed, NFFE National acted as an agent for Local 1485 throughout the proceedings in this matter, and therefore was fully responsible for the duties it assumed on behalf of Local 1485. See, for example, National Treasury Employees Union and National Treasury Employees Union Chapter 204, 18 FLRA No. 36 (the Authority found that the local chapter acted as the agent for the exclusive representative, and held that both the local chapter and the exclusive representative violated section 7114(a)(1) and thereby violated section 7116 (b)(1) and (8). With respect to the second issue, we agree with the Judge that the Respondent had no statutory duty to represent employees in MSPB proceedings. Although a union has no statutory obligation to represent employees in MSPB proceedings, it is our view that if a union chooses to do so, it must do so without discrimination and without regard to union membership. National Treasury Employees Union and National Treasury Employees Union Chapter 121, 16 FLRA 717 (1984), enforcement denied, NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986). In this case, the parties stipulated that Respondent's conduct was not motivated by malice, and nothing in the record indicates that Respondent's conduct was discriminatory or was undertaken with regard to union membership. Finally, as to the third issue, we find that even if Respondent had a duty to represent Thompson in the MSPB proceeding, Respondent's conduct did not constitute a breach of its duty of fair representation under section 7114(a)(1) of the Statute. In National Federation of Federal Employees, Local 1453, 23 FLRA No. 92 (1986), the Authority recently addressed in detail for the first time the nature of an exclusive representative's duty of fair representation where union membership is not a factor. The Authority set forth the following standard: (W)here union membership is not a factor, the standard for determining whether an exclusive representative has breached its duty of fair representation under section 7114(a)(1) is whether the union deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit. That is, the union's actions must amount to more than mere negligence or ineptitude, the union must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee. The Authority concluded in NFFE, Local 1453 that under the standard described the Respondent did not violate section 7114(a)(1) of the Statute and, therefore, did not violate section 7116(b)(1) and (8) as alleged in the complaint. Similarly, we find that the Union's actions in this case do not meet the standards set forth in NFFE, Local 1453 for finding an unfair labor practice. While the General Counsel argues that the Union's failure to appear resulted from "internal Union disorganization" and "lax administration," the General Counsel has neither alleged nor established that the Respondent deliberately and unjustifiably treated Thompson differently from other bargaining unit employees. The record does not establish that the Respondent acted arbitrarily or in bad faith. Rather, we find that the Union's failure to appear at the MSPB hearing constituted nothing more than mere negligence or miscommunication. VI. Conclusion Accordingly, the Authority finds that the Respondent did not violate section 7114(a)(1) of the Statute, and consequently did not violate section 7116(b)(1) and (8) of the Statute. Therefore, we shall dismiss the complaint. ORDER The complaint in Case No. 4-CO-20019 is dismissed. Issued, Washington, D.C. December 5, 1986. Jerry L. calhoun, Chairman Henry B. Frazier, III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 4-CO-20019 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, WASHINGTON, D.C. Respondent and HENRY M. THOMPSON, AN INDIVIDUAL Charging Party Catherine Waelder, Esq. For the Respondent Linda J. Norwood, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. Upon an unfair labor practice charge filed by Henry M. Thompson, an individual, the General Counsel of the Authority, by the Regional Director for Region IV, issued a Complaint and Notice of Hearing alleging that National Federation of Federal Employees, Washington, D.C. (herein sometimes referred to as Respondent, NFFE or the National) violated section 7116(a)(1) and (8) of the Statute when it failed to represent Mr. Thompson in a proceeding conducted by the Merit Systems Protection Board (herein MSPB). A hearing on the Complaint was conducted at which time Respondent and the General Counsel were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel and have been duly considered. /1/ Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein Local 1485 of the National Federation of Federal Employees (herein Local 1485) has been the exclusive collective bargaining representative of various employees of the U.S. Coast Guard including employees located in Miami Beach, Florida. Local 1485 is affiliated with the National Federal of Federal Employees, Washington, D.C. /2/ Henry M. Thompson was employed by the U.S. Coast Guard in Miami Beach, Florida in the collective bargaining unit represented by Local 1485 for approximately 6 years. /3/ In June 1981 he received from the Coast Guard a notice of proposed removal. The Coast Guard charged Thompson with unauthorized absences, falsification of his attendance record and attempting to deceive, through false written and oral statements. Thereafter, Thompson, a member of Local 1485 throughout his employment with the Coast Guard, requested Local 1485 President Evan Miller to accompany him when Thompson made his oral reply to the prposed action before the agency. Thompson and Evans appeared for the oral reply and during the meeting Miller made representations on Thompson's behalf. However, the charges were upheld by the 7th Coast Guard District Commander and on September 4, 1981, Thompson was removed from employment. On September 11, 1981, Thompson wrote to James M. Peirce, President of the National Union, related the background of his discharge and requested that NFFE represent him at his MSPB appeals hearing on the discharge. Thompson asked that a NFFE lawyer or qualified person familiar with removal appeals be supplied for this purpose. By letter dated September 22, President Peirce responded to Thompson and informed him that assistance would be provided by the National. The letter stated, in relevant part: "Ordinarily, all requests for assistance should be communicated through the Local President in writing. Since this is such a short time frame here, however, we will not require the strict adherence to this policy. The NFFE Executive Council has implemented criteria for making the determination when someone from the National Office will personally handle a pending matter. This policy is necessary due to our very limited resources and the size of the workload routinely received at the National Office regarding matters other than representation which affect our Locals nationwide. "Your appeal is indeed important to us. However, it does not fall within the criteria outlined by the Executive Council to warrant National Office personnel exclusively handling the appeal, as it does not affect your Local nor NFFE as a whole. This does not in any way mean that we will not be involved. "I recommend that both you and your Local President speak with the NFFE National Representative who services your Local. His name is Bob Brown and he is quite knowledgeable in handling cases of this type. We will notify Mr. Brown that your case will be pending and that his advice and expertise should be made available to you. "Staff Attorney Edwin Harvey has spoken with Local President Evans Miller regarding your situation. He has advised Evans that you should submit an appeal to the Merit Systems Protection Board to preserve your right to appeal the separation action since you possess all the information which is necessary to do so and since you indicated to Evans your intent to file the appeal. Should you require advice relating to the appeal prior to your being contacted by Mr. Brown, please talk with Mr. Miller and have him contact us at his earliest opportunity." On October 4, 1981, Thompson received an order from the MSPB which indicated that his hearing was set for November 24. Thompson thereupon related this information to Local 1485 President Miller and Miller called National Representative, Bob Brown /4/ and informed him that while Thompson was not interested in having the Local Union represent him before the MSPB, he wished to meet with Brown. Brown was scheduled to be in the Miami area in late October and agreed to meet with Thompson at that time. Miller related the message to Thompson. Thompson met with Brown on October 29 or 30, 1981, in a Miami motel. /5/ During the approximately 45 minute meeting, Thompson explained the background of his situation to Brown and produced various documents related to his case and asked Brown to help him. /6/ Brown reviewed the matter with Thompson and indicated that he had experience in handling this type of case and agreed to assist Thompson in his hearing before the MSPB. /7/ Brown told Thompson he would contact him on the following day and meet to discuss the case further. Brown did not contact Thompson and on November 5, 1981, Thompson wrote to Brown. His letter, a copy of which was sent to Miller, stated: "The appeal hearing on my removal is set for November 24, 1981, at 9 A.M. I request that I be represented at this hearing by a Union attorney or a qualified and competent Union representative that is knowledgeable about the rules, regulations and procedures concerning a removal appeal hearing. A place has not been set for this hearing as yet. Please reply as soon as possible as time is of the essence." Thereafter, Thompson heard from Miller and was told that Brown was not able to be present at the November 24 MSPB hearing and Brown had suggested that Thompson ask the MSPB for a postponement of the hearing. Thompson contacted MSPB on November 10 and requested a ten-day postponement. Subsequently the Coast Guard also sought a postponement and by Order dated December 4, 1981, the MSPB set the matter to be heard on December 16 in Miami, Florida. Thompson called Brown and informed him of the December 16 hearing date and Brown replied that he would be available for the hearing on that day. Sometime before December 16, 1981, Thompson received notification from MSPB that the December 16 hearing date would be cancelled due to lack of funds. In late December or early January 1982, Thompson received word from MSPB that his hearing would be held in Atlanta, Georgia on February 24, 1982. Thompson called Brown and notified him of the new date and that the MSPB ordered the hearing for Atlanta. /8/ During the conversation Brown told Thompson that the Atlanta representative was being transferred to a better position in California. Thompson voiced concern as to how that might affect his case and asked if Brown would be present at his hearing. Brown replied that if he could not be there, another representative would. Thompson asked if the other person would be a qualified representative. Brown responded: "Certainly." According to Thompson, during the month of January he attempted to reach Brown by telephone approximately five times but Brown's telephone went unanswered. In early February 1982, Miller called Thompson with regard to Thompson paying his Union dues. During the conversation Thompson indicated that he was having difficulties contacting Brown. Miller suggested Thompson contact Brown by mail. On February 3, Thompson sent Brown a letter by certified mail which indicated that his MSPB hearing set for February 18, 1982 at 8:30 a.m. in the MSPB hearing room in Atlanta, Georgia. As he did in his prior letter of November 4, 1981, supra, Thompson requested that he " . . . be represented . . . by a Union attorney or qualified and competent Union representative that is knowledgeable about the rules, regulations and procedures at a removal appeal hearing." Thompson again sought a reply "as soon as possible" noting time was of the essence. Brown received the letter on February 5, 1982, or shortly thereafter. However, according to Brown, whose testimony on this matter I do not credit, he had a telephone conversation with Thompson on February 4, 1982, and at that time indicated that a Union representative in Atlanta was on "standby" and, if she had no other hearing or election commitments, she would meet with Thompson prior to the hearing. Thompson was to let Brown know where he would be staying and Brown would contact the Atlanta representative as to where she should contact Thompson. However, according to Brown, Thompson never again contacted him and, in any event, unknown to Brown, the Atlanta representative was transferred to California before February 18. Thompson received no further assitance nor did he have any contact with anyone from the Union prior to his MSPB hearing in Atlanta on February 18, 1982, at which he appeared on his own behalf. /9/ By decision of April 26, 1982, and final order of March 22, 1983, the MSPB affirmed Thompson's removal action. Discussions and Conclusions Essentially three issues are presented in this case: (1) May the National Union be held responsible for a violation of the duty to fairly represent an employee when it is not the recognized collective bargaining agent of the employee involved; (2) If the National has the duty to represent the employee, does the duty extend to proceedings before the MSPB and; (3) If the duty exists, what standard of conduct is to be used to ascertain whether that duty was breached. The National Union as Respondent Section 7114(a)(1) of the Statute provides: "A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." It is clear from the language of section 7114(a) (1) that the Statute grants exclusive representation rights to the exclusive representative. In my view it follows, therefore, that it is only at the level of exclusive representation that the right to represent employees exists. Cf. Department of Health and Human Services, Social Security Administration, 6 FLRA 202 (1981), at 204 where the Authority stated: ". . . the mutual obligation to bargain as articulated in the Statute exists only at the level of exclusive recognition with respect to conditions of employment which affect any employees within the unit . . ." (Emphasis added). Section 7114(a)(1) also imposes on the exclusive representative to duty to represent the interests of employees, but limits that duty to employees in the collective bargaining unit it represents. Therefore, where a union is not the exclusive collective bargaining representative, it has neither the Statutory right to represent the employees in that unit nor the obligation or duty to represent those employees. Thus, the duty to represent employees is co-extensive with a union's right to represent those employees. Cf. Humphrey v. Moore, 375 U.S. 335, 342 (1964), where the Supreme Court, when considering a union's rights and obligations which arose under Section 301 of the National Labor Relations Act, stated: "The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contracted is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation . . ." (Emphasis added). Notwithstanding that Local 1485 is an affiliate of the National Union, forwards a portion of members' dues to the National and receives assistance from a National representative in various matters, Local 1485 is the exclusive bargaining representative for the unit in which Thompson was employed. The collective bargaining agreement covering that unit is between Local 1485 and the Coast Guard. It is only Local 1485, and not the National, which has the right to represent employees in the unit in matters which arise out of the employment relationship by virtue of its status as the exclusive representative. Similarly, it is only Local 1485, and not the National, which has a correlative duty to represent unit employees in such matters. The National became involved in Thompson's case when it, upon request by Thompson, volunteered the services of National Representative Brown to make available his "advice and expertise" and Brown inidcated he would assist Thompson during the MSPB hearing. However, any Statutory duty to represent owed to Thompson was owed by Local 1485 and not the National. By volunteering Brown's services the National may have become the agent of the Local for the purpose of representing Thompson at the MSPB hearing, but this did not make the National Thompson's Statutory representative. That right and duty remained with the Local, the exclusive representative. Accordingly, since the Complaint herein names only the National as the Respondent and the National was neither the exclusive representative nor a party to the collective bargaining agreement, I conclude that the National was not a proper respondent under the Statue and the Complaint herein must be dismissed. See Baker et al, v. Newspaper and Graphic Communications Union, Local 6, et al., 628 F. 2d 156, 165 (D.C. Cir. 1980). The Duty to Represent at MSPB Proceedings Assuming arguendo that the National Union can be held responsible for the violations alleged in the Complaint, I would nevertheless conclude that no breach of any duty to represent Thompson occurred herein. As stated above, the duty to represent is coextensive with the right to represent and, in my view, a union has no obligation to represent an employee in matters wherein the union has no right to represent the employee. Thus, if a union does not have a specific statutory or contractual right to pursue a matter, it should not have any statutory obligation to act. Such an approach would give a balanced meaning to the Supreme Court's usage of "equal scope" in Humphrey v. Moore, supra, when it discussed a union's representative responsibility vis a vis its authority in such matters. Accordingly, where no right to pursue a matter in a particular forum exists, a union should not be found to have violated the Statute by its refusal to act, failure to act, or even by acting discriminatorily or improperly. The situation would simply be outside the purview of Statutory considerations. /10/ In the case herein the Union has no independent right under the Statute or by contract to appear before the MSPB to argue or present a case. /11/ The right to have his removal action brought before the MSPB was Thompson's and arose separate and apart from the rights granted to the Union by the Statute or negotiated into the collective bargaining agreement. /12/ Accordingly, I would conclude that since access to the MSPB was Thompson's right and Thompson's right alone, the Union cannot be held to have violated the Statute by its actions or lack thereof in connection therewith. If the Union agreed to volunteer its services to Thompson the matter was one of concern strictly between Thompson and the Union and any question of the Union's duty in that situation should not be resolved in this forum. In view of my conclusions herein I need not reach the question of what standard of conduct a union should be charged with in fulfilling its duty to represent employees in the collective bargaining unit and whether the Union herein failed to meet that duty. /13/ However, it would appear that such a duty under the Statute exists and, but for my conclusions, supra, I would find that the Union's failure to be present at the MSPB hearing, after having agreed to represent Thompson and no good cause having been found which would excuse or explain the Union's failure to appear at the hearing, would constitute arbitrary and capricious conduct violative of the Statute. Nevertheless, I would reject Counsel for the General Counsel's request that, as part of the remedy, the Union should pay Thompson for expenses he incurred representing himself. Since there is no showing that Thompson incurred any expenses additional to those incurred in connection with being present at the hearing, which hearing he would have attended in any event, I conclude such remedy would be punative and is therefore impermissible. IBEW v. Foust, 99 U.S. 2121 (1979). Accordingly, in view of the entire foregoing, I recommend the Authority issue the following: ORDER It is hereby ordered that the Complaint in Case No. 4-CO-20019 be, and it hereby is, dismissed. SALVATORE J. ARRIGO Administrative Law Judge Dated: July 5, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Counsel for Respondent's unopposed Motion to Correct Transcript regarding minor matters is hereby granted. (2) As an affiliate, a portion of Local 1485 members' dues is forwarded to the National. (3) The unit is described in a collective bargaining agreement between Local 1485 and the Coast Guard which became effective in August 1977. (4) Brown works out of Orlando, Florida and is employed by the National Union. His official title is Division Director and he is responsible for the supervision of three National Representatives in the Civil Service Regions within his jurisdiction, as well as personally serving 22 local unions in Florida, including Local 1485 and one local in Alabama. Brown's duties include giving assistance and aid to local unions in negotiations and other matters as requested. (5) Brown called Miller and had him notify Thompson of the time and place of the meeting. (6) In this and other testimony herein, where there is a variance in the testimony, for the most part I have relied on Thompson's testimony over that of Brown and Miller. I found Thompson's testimony to be generally more plausible and more specific, direct, consistent and responsive to the questions asked. (7) Brown had never appeared at an MSPB hearing but had experience in other types of hearings.