28:0677(86)CO - AFGE Local 1857 and John M. Neill -- 1987 FLRAdec CO
[ v28 p677 ]
The decision of the Authority follows:
28 FLRA No. 86 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO Respondent and JOHN M. NEILL, An Individual Charging Party Case No. 9-CO-60014
The Administrative Law Judge issued the attached decision in the above entitled proceeding, finding that the Respondent, as alleged in the complaint, violated its statutory duty of fair representation under section 7114(a)(1) of the the Federal Service Labor - Management Relations Statute (the Statute) by deleting an employee's name from a list of employees who, pursuant to a settlement agreement, were eligible to receive backpay. The Judge recommended that the Respondent be ordered to cease and desist from those practices and take certain affirmative action. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order as modified. 1 [PAGE]
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, we order that the American Federation of Government Employees, Local 1857, AFL - CIO shall:
1. Cease and desist from:
(a) Breaching its statutory duty to fairly represent all of the employees in the bargaining unit by discriminatorily excluding John M. Neill, a unit employee in the Meat Department of the Commissary at McClellan Air Force Base, from a grievance settlement it negotiated with McClellan Air Force Base.
(b) In any like or related manner, interfering with, restraining, or coercing any employee in the exercise of the rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Fairly represent all employees in its unit of exclusive recognition at McClellan Air Force Base, as required by section 7114(a)(1) of the Statute.
(b) Request McClellan Air Force Base to include John M. Neill in the May 23, 1986 list of eligible employees for purposes of computing and paying to him the overtime that he is entitled to. Failing in such endeavor, Local 1857, AFGE, AFL - CIO, shall make John M. Neill whole for the backpay compensation to which he was entitled under the terms of the May 1986 grievance settlement between American Federation of Government Employees, Local 1857, AFL - CIO and McClellan Air Force Base.
(c) Post at its business offices and its normal meeting places, including all places where notices to members and to employees of McClellan Air Force Base 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 1857, AFL - CIO, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where Union notices to [ v28 p2 ] members and unit employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Submit appropriate signed copies of such Notice to the Commander of McClellan Air Force Base, for posting in conspicuous places where unit employees are located, where they should be maintained for a period of 60 consecutive days from the date of the posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., August 21, 1987
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v28 p3 ]
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE PURPOSES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT breach our statutory duty to fairly represent all of the employees in the bargaining unit by discriminatorily excluding John M. Neill, a unit employee in the Meat Department of the Commissary at McClellan Air Force Base, from a grievance settlement we negotiated with McClellan Air Force Base.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of the rights assured by the Federal Service Labor - Management Relations Statute.
WE WILL fairly represent all employees in our unit of exclusive recognition at McClellan Air Force Base, as required by section 7114(a)(1) of the Statute.
WE WILL request McClellan Air Force Base to include John M. Neill in the May 23, 1986 list of eligible employees for purposes of computing and paying to him the overtime that he is entitled to. Failing in such endeavor, we shall make John M. Neill whole for the backpay compensation to which he was entitled under the terms of the May 1986 grievance settlement between American Federation of Government Employees, Local 1857, AFL - CIO and McClellan Air Force Base.
______________________________ (Labor Organization) Dated:____________________By:______________________________ (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. [PAGE]
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 IX, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 995-5000. [ v28 p2 ]
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1857, AFL-CIO Respondent and JOHN M. NEILL, An Individual Charging Party Case No.: 9-CO-60014 Stefanie Arthur, Esquire For the General Counsel Bernard L. Allamano, Esquire For the Respondent Before: BURTON S. STERNBURG Administrative Law Judge
Statement of the Case
This is a proceeding 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., and the Rules and Regulations issued thereunder.
Pursuant to an amended charge first filed on June 19, 1986, by Mr. John M. Neill, and individual, a Complaint and Notice of Hearing was issued on September 15, 1986, by the Regional Director for Region IX, Federal Labor Relations Authority, San Francisco, California. The Complaint, which was amended at the hearing, alleges that American Federation of Government Employees, Local 1857, AFL - CIO, (hereinafter called the Union or Local 1857), violated Sections 7116(b)(1) and (8) of the Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in deliberately and unjustifiably excluding Mr. Neill from a grievance settlement and thereby depriving him of back pay compensation to which he was entitled. Thus, it is [PAGE] the General Counsel's contention that Local 1857's action in the aforementioned respect breached its duty of fair representation imposed by Section 7114(a)(1) of the Statute.
A hearing was held in the captioned matter on November 17, 1986, in Sacramento, California. All parties were afforded the full opportunity to be heard, to examine and cross-examine witness, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs which have been duly considered.
Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.
Findings of Fact
The American Federation of Government Employees, AFL - CIO, at all times material herein, has been the certified exclusive representative of a nationwide consolidated unit of nonsupervisory, nonprofessional employees of the Air Force Logistics Command who are serviced by the Air Force Logistics Command's Civilian Personnel Office.
Local 1857, at all times material herein, has been an affiliate and an agent of the American Federation of Government Employees, AFL - CIO, for purposes of representing the unit employees at McClellan Air Force Base, Sacramento, California. Among other employees represented by Local 1857 at McClellan Air Force Base are the "Meatcutters" working in the Commissary. This latter group includes WG-5 Meatcutter Helpers, WG-8 Meatcutters, and since the position was created in January 1984, the WL-8 Meatcutter Work Leader.
At all times material herein, Mr. John Neill has been employed in the Commissary at McClellan Air Force Base and has been a member of the bargaining unit represented by Local 1857. At all relevant periods prior to February 5, 1984, Mr. Neill worked as a WG-8 Meatcutter. On February 5, 1984, he was temporarily promoted to the newly created position of Meatcutter Work Leader. Thereafter, following the expiration of 120 days, he was permanently promoted to the position of Meatcutter Work Leader.
Mr. Edward Jasper Griffin, Jr. has been the Meat Market Manager of the Commissary since September 1983. In such position he is the supervisor of the Meatcutters, the [ v28 p2 ] Meatcutter Helpers and Meatcutter Work Leader. Upon assuming the position of Meat Market Manager he issued a directive to his subordinates which required them to have donned their protective equipment prior to reporting for the start of their respective shifts. The protective equipment includes a plastic "bump cap" that protects the head from bumps and knicks, a "safety apron" that's made of a light weight metal mesh with shoulder straps, "steel toed shoes" and a five finger "safety glove" that goes on the left hand and is worn when utilizing a knife. In addition the employees are required to wear white pants, a white smock and a white apron.
Due to Mr. Griffin's directive which required the employees to have their safety or protective equipment on prior to reporting for work, the employees were forced to arrive at work five minutes before they were actually on the clock. Thus, they worked approximately five minutes without pay.
On November 8, 1985, Local 1857 filed an activity grievance over the requirement that the Meatcutters in the Commissary don their protective clothing and equipment prior to the commencement of their shifts.
Thereafter, by a decision issued on December 27, 1985, the Union's grievance was sustained in part and denied in part. Thus, Air Force Commissary officials were directed to immediately allow the employees who were required to wear protective clothing while working to have five minutes on the clock at the start of their respective shifts to don such protective clothing. However, Local 1857's requested remedy, i.e. that all AWOL charges of tardiness be cancelled and that employees who had worked under Supervisor Griffin since 1983 be paid 1/4 hour of overtime for each day worked, was denied.
Subsequently, Local 1857 requested arbitration on that part of the grievance which had been denied by management. However, prior to the matter being submitted to arbitration, Mr. Mark Commerford, and Air Force Attorney who had been assigned to the matter, determined that since the regulation required the Meatcutters to wear protective clothing as part of their assigned jobs, they were entitled to utilize company time to don the protective clothing. Accordingly, he concluded that the Meatcutters were entitled to back pay compensation for the time they had spent prior to the start of their respective shift donning protective clothing. In line with the foregoing conclusion he entered into [ v28 p3 ] discussions with Ms. Dora M. Solorio, 1st Vice President and Chief Steward of Local 1857, for purposes of reaching an agreement as to which employees were entitled to overtime pay for the approximately five minutes they had spent donning protective equipment prior to the start of their respective shifts. In the early part of May 1986, Ms. Solorio and Mr. Commerford entered into a settlement which was based on their previous discussions. According to the settlement each WG-8 Meatcutter who had been forced to work five minutes prior to the start of his shift between September 1983 and January 12, 1986 was to be paid for such time. Further, the settlement also included a WG-5 Meatcutter Helper who had, during the above cited period, performed meatcutter duties. The Union, according to the settlement, was to submit a list of eligible employees.
On an unspecified date between the May 12 and May 23, 1986, Ms. Solorio submitted a list of 12 employees who allegedly were eligible for coverage under the settlement agreement. Eleven of such employees were WG-8 Meatcutters and the twelfth was the WG-5 Meatcutter Helper. On May 23, 1986, Mr. Commerford sent a letter to Ms. Solorio wherein he deleted the names of four WG-8 meatcutters for specified reasons and also added the name of Mr. John Neill. With respect to Mr. Neill's name he informed Ms. Solorio that Meat Market Manager Griffin had advised him that Mr. Neill had worked as a WG-8 Meatcutter during the period in question. After reviewing Mr. Commerford's letter, Ms. Solorio met with Mr. Commerford and accepted the four deletions from her list. However, she declined to accept the inclusion of Mr. Neill on the list and declined to sign off on the matter until such time as his name was deleted from the list of employees eligible for overtime pay. On May 27, 1986, Mr. Commerford agreed to delete Mr. Neill's name from the list as long as Ms. Solorio made and signed a notation on the list indicating that Mr. Neill was deleted at her insistence and the reasons therefor. Thus, on the final list to which the parties affixed their signatures, Ms. Solorio wrote the following notation:
I agree to all the names on the list with the exception of John Neill who is a WL and does not go out on the floor to do meatcutting until well after the start of the shift. [ v28 p4 ]
On the basis of the above letter, the employees identified therein received back pay for the five minutes that they had spent prior to the start of their respective shifts putting on protective clothing. Because his name had been deleted from the list, Mr. John Neill did not receive any back pay.
According to the credited testimony of Mr. Griffin and Mr. Neill, the order requiring the employees to have protective clothing on at the start of their respective shifts was unrelated to the time when they actually began cutting meat. Thus, even though a meatcutter might not have been assigned the job of cutting meat at the start of his shift, he nevertheless was still required to have had donned the protective clothing when his shift started.
At the hearing Ms. Solorio testified that she had Mr. Neill's name removed from the list of employees eligible for overtime since the grievance only included wage grade meatcutters and not work leaders. Further, according to Ms. Solorio, she also took into consideration the fact that she "had also been informed for some time that John Neill would put on his protecting clothing after the start of the shift in the supervisor's office." Ms. Solorio admits that she never personally inquired of Mr. Neill whether the information she allegedly received from approximately nine out of the fourteen employees was correct.
Mr. Neill and Mr. Griffin credibly testified that at all time pertinent to the grievance Mr. Neill always put on his protective clothing prior to reporting for work. Moreover, a number of witnesses, testifying on behalf of the Union, acknowledged that prior to becoming a work leader, Mr. Neill regularly changed into his work clothing prior to the start of his shift. It was only after he became a work leader, according to them, that Mr. Neill stopped putting on his protective clothing before the start of his shift. However, despite their respective testimony in this respect, as noted above, based particularly on his demeanor, I have credited Mr. Neill's testimony that he always put on his protective clothing prior to the start of his shift. Moreover, as demonstrated at the hearing, Mr. Neill wore his mesh apron in such a way that it could not be observed under his white smock coat even if the upper portion of the coat was open. Thus, according to Mr. Neill, he wore his metal mesh apron without the upper bib portion, which generally went over the neck, and tied it around his waist. Inasmuch as I credit Mr. Neill's testimony in this respect, I discredit the testimony of Respondent's witnesses to the extent that they [ v28 p5 ] base their respective conclusions, that he, Mr. Neill, was not wearing the protective vest, on their inability to see the vest when the upper portion of his smock was open.
The three meatcutters testifying on behalf of the Union 2 acknowledge having had individual problems with Mr. Neill following his promotion to the position of work leader. Thus, according to them, Mr. Neill was responsible for having several of the unit employees charged with being AWOL when they failed to report for work at the start of their respective shifts due to the fact that they were utilizing, contrary to instructions, work time to don their protective clothing. The record reveals that Mr. Neill's alleged activity in the above respect was known to the Union and served as the basis for a grievance by the employees. The Union was also aware that a number of employees had charged Mr. Neill with making ethnic remarks.
With respect to the coverage of the settlement agreement, i.e., who was eligible for payment, Mr. Commerford testified that although the settlement agreement mentioned WG-8 Meatcutters it was intended to cover all employees who had worked prior to the start of the shift.
Discussion and Conclusions
The General Counsel contends that the Union breached its duty of fair representation imposed by section 7114(a) of the Statute and thereby violated sections 7116(b)(1) and (8) of the Statute when it deleted Mr. Neill's name from the list of employees eligible for overtime payments. Thus, the General Counsel would find that the preponderance of the credible evidence adduced at the hearing clearly establishes that the "union deliberately and unjustifiably treated Mr. Neill differently than other similarly situated bargaining unit employees."
The General Counsel, in his post hearing briefs, makes it clear that "the complaint does not allege, nor has General Counsel contended, that Mr. Neill's union membership or lack thereof, played any part in the Union's discriminatory conduct toward him." [ v28 p6 ]
The Union, on the other hand, takes the position that the weight of the evidence supports a finding that Ms. Solorio, the Union representative, did not breach the duty of fair representation. According to the Union, since Ms. Solorio acted reasonably in light of the information related to her by Mr. Neill's co-workers, there was no failure to accord Mr. Neill fair representation. Thus, the Union argues that the test is whether "she acted arbitrarily, discriminatorily, or in bad faith based upon what she knew at the moment."
Finally, the Union points out that at no time was Ms. Solorio ever informed by either Mr. Neill, Mr. Griffin or Mr. Commerford that she had improperly excluded Mr. Neill from the list of employees eligible for overtime pay. Without a showing of such knowledge, it appears to be the Union's position, that the Union's action falls short of constituting a failure to accord fair representation to Mr. Neill. Finally, in accordance with the foregoing, it is the Union's position that a Union owes no duty of fair representation to an employee who does not seek such representation.
In agreement with the Union, I find the following facts to be pertinent to the resolution of the instant complaint. On or about May 27, 1986, the Union filed a grievance concerning the requirement that the meatcutters don their protective clothing on their own time prior to the start of their respective shifts. Mr. Neill qualified as a meatcutter during at least a portion of the relevant period. Subsequently, he became a work leader, which position was also covered by the grievance and subsequent settlement, since such settlement was not limited solely to meatcutters but rather included all bargaining unit members who were required to spend their own time putting on protective equipment. 3 Ms. Solorio, the union representative, had been informed by several of Mr. Neill's fellow employees that he, Mr. Neill, had become a work leader, that in such position he had been responsible for charging a number of meatcutters with AWOL when they had been several minutes late, that Mr. Neill had been charged by several unit employees with making ethnic remarks and that Mr. Neill did not put on his protective clothing prior to starting his shift. That, Ms. Solorio, based on the above information, and without any inquiry to Mr. Neill concerning the validity of the information received [ v28 p7 ] from his fellow unit members, deleted Mr. Neill's name from the list of employees eligible for overtime payments.
Based upon the above summary of pertinent facts it is clear that Mr. Neill was treated differently than other similarly situated unit employees. However, the fact that he was treated differently than his fellow unit employees does not necessarily establish that the Union violated the duty of fair representation imposed by Section 7114(a)(1) of the Statute.
In National Federation of Federal Employees, Local 1453, et al., 23 FLRA No. 92, the Authority set forth the standard to be applied in judging whether or not a union had fulfilled its duty of fair representation. Thus, the Authority stated,
Based upon the clear language of the Statute and the applicable legislative history, we find that where 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 further noted that the standard was consistent with the standard used in Executive Order cases and with the standard used by the NLRB in deciding similar cases.
Applying the above standard to the pertinent facts summarized, supra, I find that the Union's action in having Mr. Neill's name deleted from the list of unit employees eligible for overtime payment breached the duty of fair representation imposed upon the Union by Section 7114(a)(1) of the Statute. In reaching this conclusion I rely particularly on the fact that the Union was aware, at the time that it decided to rely on information submitted by Mr. Neill's co-workers relative to his eligibility for overtime, that [ v28 p8 ] such co-workers bore animosity to Mr. Neill predicated on the fact that they believed that he had made ethnic remarks and participated in activity which resulted in a number of such co-workers being charged AWOL. Having notice of such animosity, the Union nevertheless opted to rely on such information, and without more, insisted that Mr. Neill's name be deleted from the list of eligibles to his, Mr. Neill's, detriment. Being aware of the animosity existing between Mr. Neill and his fellow employees, I find that Respondent should have checked with Mr. Neill for his position on the matter. This is particularly true when the Union, which attempts to justify its position on the ground that the grievance was only applicable to WG-8 Meatcutters, knew or should have known, that during part of the pertinent period in question Mr. Neill had served as a WG-8 Meatcutter. Finally, one knowledgeable in labor relations, must be highly suspicious of a Union's motive when it gratuitously removes a unit employee who is also a union member from eligibility for monetary payments to be borne solely by management. 4
Based upon the