29:0178(14)CO - AFGE Local 1738 and VA Medical Center, Salisbury, NC -- 1987 FLRAdec CO



[ v29 p178 ]
29:0178(14)CO
The decision of the Authority follows:


29 FLRA No. 14

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1738, AFL-CIO

              Respondent

      and

VETERANS ADMINISTRATION MEDICAL
CENTER, SALISBURY, NORTH CAROLINA

              Charging Party

Case No. 4-CO-47
(19 FLRA 520)

DECISION AND ORDER ON REMAND

I . Introduction

In American Federation of Govern 1738, AFL - CIO, 19 FLRA 520 (1985), the Authority held that the American Federation of Government Employees, Local 1738 (the Union), violated section 7116(b)(3) of the Federal Service Labor - Management Relations Statute (the Statute) when it removed an employee from his position as a Union steward. The Authority dismissed the allegation in the complaint that the Union had violated section 7116(b)(1) of the Statute.

Subsequently, the Union petitioned the court for review of the Authority's decision. In American Federation of Government Employees, Local 1738 v. FLRA, 806 F.2d 1105 (D.C. Cir. 1986), the court remanded the case to the Authority "so that it may clarify its interpretation of section 7116(b)(3) and indicate what, if any, evidence supports a finding that the Union violated section 7116(b)(3)." Id. at 1106.

For the reasons stated below, we conclude that the Union did not violate section 7116(b)(3) of the Statute. Therefore, we reverse the Authority's previous decision in this matter as to section 7116(b)(3) and dismiss the complaint in its entirety. [PAGE]

II . Background

A . The Facts

The Union represents employees at the Veterans Administration Medical Center in Salisbury, North Carolina. Approximately 50 employees, including Kenneth Poteat, are in the nonprofessional unit. Poteat is employed as a housekeeper and is assigned to the psychiatric ward.

Shortly after Poteat was assigned to the ward, the Union's Steward Committee nominated Poteat to fill a vacancy in one of the two Union steward positions servicing the Building Management employees. On the committee's recommendation, the Union President appointed Poteat steward on August 15, 1980.

Poteat never took part in any representational duties. His Union activities consisted of attendance at one Union meeting. Early in September, the Union received complaints about Poteat's appointment as steward and his relationship with management, particularly that he spent a great deal of time "cultivating" the Building Manager. The Union President, Executive Vice - President and the Chief Steward met to discuss the matter. They "agreed that it wouldn't be fair for the length of time that he had been in to consider removing him at that time, (and they decided to) give (Poteat) a chance to learn, and gain the peoples' confidence." Transcript at 60.

On September 29, Poteat observed what he described as a nursing assistant punching and kicking a patient in the psychiatric ward. Poteat consulted with the Building Manager and asked what he should do. The Building Manager said that Poteat would have to be the judge of that. Poteat then confronted the nursing assistant, and decided to report the incident. Before leaving the ward, Poteat was visited by the Building Manager, who told him that he (Poteat) was obligated to report the incident since he had signed the Agency's memorandum on patient abuse. The memorandum provides that an employee "who witnesses any unkindness, rudeness, or violence of any kind toward a patient and does not promptly report it to the proper authority is subject to disciplinary action(,)" including discharge. See General Counsel's Exhibit No. 3. Poteat thereupon reported the incident to the Hospital Assistant Director.

The following morning, Poteat was visited by the Union's Executive Vice - President and Chief Steward in the ward. They informed him that they had received numerous complaints from Union members and that Poteat did not have [ v29 p2 ] the support of Building Management employees. They invited him to take a poll of the employees to see how the employees felt about him. Poteat suggested that they take their own poll. The Union officers then took a sampling and reported to Poteat the next day that the poll confirmed their view that the employees no longer wanted him as a steward and that he could resign or "be resigned." See Transcript at 18. Poteat refused to resign.

On the following day, October 2, Poteat received a letter from the Union President removing him from his position as steward. The letter stated that: (1) the decision was based on the request of a large number of employees; (2) an overwhelming majority of Building Management employees did not trust Poteat to properly represent them; and (3) it was necessary for the Union to have stewards who can represent employees.

The letter did not mention the incident of September 29. The letter was based on a written recommendation from the Executive Vice - President and the Chief Steward, who stated that they had talked with Poteat concerning his action on September 29 and the effect this would have on his credibility and effectiveness as a steward, and that they had concluded from their survey that he could no longer be effective. Removal from the steward position was the only way in which Poteat's official status in the Union was affected.

B . The Proceedings before the Authority

The Agency filed an unfair labor practice charge alleging that the Union's action violated section 7116(b)(1) and (3) of the Statute. The General Counsel thereupon issued a complaint alleging that the Union violated section 7116(b)(1) and (3) when it removed Poteat from the Union Steward position because he discharged his duties as an employee by reporting, consistent with Agency policy, that another employee had engaged in patient abuse.

The Chief Administrative Law Judge found as a threshold matter that the Agency had standing to file the charge under the Statute. The Judge stated that the record facts do not support a finding that the Union's motive in removing Poteat from office was punishment or reprisal; rather, the evidence comports with the Union's professed purpose of removing an official who could no longer be effective. The Judge went on to state that he did not need to resolve the question of whether it was appropriate to draw an inference that the Union's motive was punishment or reprisal, in light of his conclusion that neither section 7116(b)(1) or (3) was [ v29 p3 ] intended to curb a labor organization's power over its officers. He held that in the absence of any indication that Congress meant to intrude into the relationship between a labor organization and its officers, he could not conclude that section 7116(b)(3) was intended to protect members from anything more than the traditional sanctions used against members--threats, violence, fines, suspension, and expulsion. He therefore recommended dismissal of the complaint in its entirety.

The Authority found that the Judge correctly concluded that the Union had not violated section 7116(b)(1) of the Statute. However, contrary to the Judge, it held that the Union's removal of Poteat from his position as union steward after he reported alleged patient abuse violated section 7116(b)(3) of the Statute. The Authority determined that the Union's action in removing Poteat as steward had the effect of coercing him or disciplining him for the purpose of hindering or impeding his work performance or the discharge of his duties as an employee, and thus violated section 7116(b)(3).

As noted above, the Union sought review of the Authority's finding that section 7116(b)(3) had been violated, and the court remanded the case to the Authority.

III . Analysis on Remand

A . Congress' Intent in Enacting Section 7116(b)(3) of the Statute

1 . Legislative history of section 71

Section 7116(b)(3) of the Statute makes it an unfair labor practice for a labor organization "to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee."

The legislative history of the Statute contains no significant discussion on the meaning and intent of section 7116(b)(3). The Senate and House Reports merely recite that section without additional explanation. 1 Generally, with [ v29 p4 ] respect to the unfair labor practices listed in section 7116(b) of the Statute, the Senate report notes that "(s)imilar unfair labor practices are contained in section 19(b) of the Executive Order 11491." 2

Section 19(b)(3) of the Executive Order provided that a labor organization shall not:

coerce, attempt to coerce, or discipline, fine or take other economic sanction against a member of the organization as punishment or reprisal for, or for the purpose of hindering or impeding his work performance, his productivity, or the discharge of his duties owed as an officer or employee of the United States.

The Assistant Secretary of Labor for Labor - Management Relations, who had responsibility for administering certain provisions of Executive Order 11491, stated the following as to section 19(b)(3):

I do not view the proscription of Section 19(b)(3) as being limited strictly to situations involving internal union discipline. Rather, I view this Section of the Order as expressing a specific concern to protect members of a labor organization from any type of coercion by the organization as punishment for, or for the purpose of hindering or impeding their work performance, productivity, or the discharge of their duties. Although this Section of the Order proscribes actions traditionally associated with internal union recourses against members, such as fines or other economic sanctions, it also proscribes coercion or attempts to coerce, and qualifies such proscribed acts with the clause "as punishment or reprisal for, or for the purpose of hindering or impeding his work performance, [ v29 p5 ] his productivity, or the discharge of his duties owed as an officer or employee of the United States." In my view, the above-noted language contained in Section 19(b)(3) indicates that the Executive order was intended to protect union members from any act by a labor organization which in any way interferes with the performance of their duties as employees.

Professional Air Traffic Controllers Organization, MEBA, AFL - CIO and Taso Peter Anthan, Air Traffic Controller, Forissant, Missouri, 7 A/SLMR 640 (1977). The Assistant Secretary's decision was appealed to the Federal Labor Relations Council (the Council), the predecessor to the Authority. The Council upheld the Assistant Secretary's finding that section 19(b)(3) "was intended to protect union members from any act by a labor organization which in any way interferes with the performance of their duties as employees." Professional Air Traffic Controllers Organization, MEBA, AFL - CIO, 6 FLRC 108, 110 (1978).

Section 19(b)(3) of Executive Order 11491 evolved from the 1963 Standards of Conduct for Employee Organizations (Standards) and the Code of Fair Labor Practices in Employee - Management Cooperation in the Federal Service (Code) which were issued under Executive Order 10988. 3 Section 3.2(b) of the Code provided in pertinent part:

Employee organizations are prohibited from:

(3) Coercing or attempting to coerce, or disciplining, any member of the organization as punishment or reprisal for, or for the purpose of hindering or impeding his discharge of his duties owed as an officer or employee of the United States(.)

In explaining the Code, the Civil Service Commission (the Commission) noted that its provisions were developed for specific application to the program of employee-management cooperation in the Federal service established by Executive Order 10988. The Commission emphasized that while some of the specific prohibited practices listed in the Code [ v29 p6 ] resemble similar provisions found in the Labor Management Relations Act of 1947, as amended, and the Labor Management Disclosure Act of 1959, "(e)ach provision of the Code . . . must be viewed in the context of the system of employee-management relations existing in the Federal service." 4

Specifically, with respect to section 3.2(b)(3) of the Code, the precursor to section 19(b)(3) of the Order, the Commission stated (at 17-18 of the Explanation of Provisions):

The prohibited practices contained in Section 3.2(b)(3) . . . are included in the code in recognition of the special obligation that all parties to employee-management relations in the Federal Service have to conduct themselves in such manner as not to interfere with the proper performance of the Government's business(.)

2 . Private sector caselaw

In addition to considering the Federal sector history of the development of section 7116(b)(3) of the Statute, it is instructive to examine pertinent private sector precedent.

Title I of the Labor - Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 411, addresses rights of union members in the private sector. In Finnegan v. Leu, 456 U.S. 431 (1982), an action was brought by union employees who were also members of the union and who were discharged as employees of the union after supporting another candidate in an election. They charged that the union had violated section 609 of the LMRDA, 29 U.S.C. 529, which makes it unlawful for any union or its representatives to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which the member is entitled under the LMRDA.

The Court concluded that the removal of a union employee does not constitute discipline of a member under the LMRDA if the employee's rights or status as a member are not impaired. The Court stated that there was no violation of the LMRDA because "discharge from union employment does not impinge upon the incidents of union membership, and [ v29 p7 ] affects union members only to the extent that they happen also to be union employees." Finnegan v. Leu, 456 U.S. at 438. The Court emphasized that Title I of the LMRDA "does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. . . . (T)he ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election." 456 U.S. at 441 (footnote omitted).

3 . Meaning and intent of section 7116(b)(3)

In determining the meaning and intent of section 7116(b)(3), we have considered the language, history, and purpose of that section as well as general labor law principles developed both under the Statute and private sector case law. Section 7116(b)(3) of the Statute has developed from the original embodiment of Presidential policy governing the conduct of labor-management relations in the Federal sector. In enacting that provision of the Statute, Congress adopted language similar to the language in Executive Orders 11491 and 10988. In our view, Congress did not express any specific intent to depart from the meaning and application of those earlier terms. 5

This background, viewed in the context of the general policies of the Statute, leads us to conclude that Congress intended section 7116(b)(3) of the Statute to protect union members from acts by a labor organization which interfere with the performance of the members' duties as Federal employees. See National Treasury Employees Union and National Treasury Employees Union, Chapter 53, 6 FLRA 218, 226 (1981). Congress sought in section 7116(b)(3) to ensure that: (1) employees will be able to perform their required duties without suffering adverse consequences as a result of their unions' actions with respect to the employees' status as members of the union; and (2) the Government will be able to perform its business in an effective and efficient manner without interference resulting from actions taken by unions against their members. [ v29 p 8 ]

The objectives of section 7116(b)(3) are different from the objective of the LMRDA to ensure that unions are democratically governed. Therefore, the Court's interpretation of that statute in Finnegan v. Leu is not directly controlling in this case. Rather, Congress' concerns in enacting section 7116(b)(3), considered together with the well-established principle in both the Federal and private sectors that the internal organization of a union is generally a matter for the union alone, lead us to the determination that Congress intended a violation of section 7116(b)(3) to be found if a union's action was intended to coerce, discipline, or fine a union member, or had the effect of coercing, disciplining, or fining a member; and its action was intended as punishment or reprisal for the discharge of the member's duties as an employee, or to hinder or impede the member's work performance or productivity as an employee. In so concluding, we find, for the reasons discussed below, that it is unnecessary for us to decide in this case whether section 7116(b)(3) applies to union members in their capacity as union leaders, and we therefore specifically do not address that question.

B . Whether the Union Violated Section 7116(b)(3) of the Statute in this Case

We agree with the Judge's threshold determination that the Agency had standing to file the unfair labor practice charge in this case. See National Treasury Employees Union and National Treasury Employees Union, Chapter 53, 6 FLRA at 225. As to the merits of the complaint, we conclude, even assuming for the purposes of this decision that section 7116(b)(3) applies to union members in their capacity as union leaders, that the Union did not violate section 7116(b)(3) of the Statute.

Our conclusion is based on an examination of the union's conduct in this case and the application of the principles set forth above as to how section 7116(b)(3) is to be interpreted. First, it is clear from the record that Poteat's reporting of alleged patient abuse was a factor that led to his removal as a steward. It is undisputed that Poteat had a duty as an employee to report such instances, and that he made such a report. As stated by the Judge, "obviously . . . Poteat's report caused his removal, for it led to the complaints which led to his removal." 19 FLRA at 528. On the morning after Poteat made his report, there was a widespread call from other unit employees for his [ v29 p9 ] removal. The next day, after surveying unit employees' opinions which confirmed widespread dissatisfaction with Poteat, the Union told Poteat that he "could resign or be resigned." Poteat refused to resign. The following day, the Union removed him from his steward's position based on a written recommendation from members of the Union's Steward Committee. As the basis for its recommendation that Poteat be removed, the committee noted Poteat's loss of effectiveness as a steward, which the committee related directly to Poteat's filing of the report of patient abuse.

However, the record is replete with evidence of a second, independent set of factors underlying the Union's removal of Poteat from the steward position. The Union explains in the letter of removal that Poteat's removal was in response to Union concerns about his future effectiveness as a representative of employee interests. The Chief Steward testified that those concerns began soon after Poteat's appointment as a steward when the Chief Steward received complaints that Poteat was "cultivating" a relationship with the agency's Building manager. See ALJ Decision at 3 and Transcript at 70-72. See also Transcript at 41, 42. The Union decided, however, to allow Poteat to continue in his capacity as a steward with the expectation that he would eventually gain the trust of unit employees. Poteat never fully met the Union's expectations since during his tenure as a steward he never took part in any representational activities and attended only one Union meeting. See ALJ Decision at 3.

After Poteat's report there was an immediate and widespread reaction among unit employees. As stated in the Union's letter removing him from the position, the decision to remove Poteat was based on the request of a large number of employees and on the fact that an overwhelming majority of the Building Management employees did not trust Poteat to properly represent them. The Union's letter also expressed a need to have stewards who could properly represent employees. Poteat's report may have provided the occasion for polling unit employees, but the evidence in the record concerning previous dissatisfaction with Poteat's performance provides a basis for finding that the results of the poll would have been substantially the same even if Poteat had not made his report. [ v29 p10 ]

The Union determined that Poteat could not be effective as a steward since he did not have the trust and confidence of the employees in the unit he represented. The Union acted within its right to remove Poteat because, in the Union's view, he could not effectively represent the interests of employees. The Authority has recognized on numerous occasions the right of an agency and union to designate their respective representatives when fulfilling their responsibilities under the Statute. See, for example, Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA No. 74 (1986), slip op. at 7-8; American Federation of Government Employees, AFL - CIO, 4 FLRA 272 (1980). That right includes the ability of the Union to remove a member from a steward position, consistent with the requirements of the Statute, when it determines that the member can no longer be effective as a representative of employee interests.

We therefore find, based on a review of the entire record and the reasons discussed above, that a preponderance of the evidence demonstrates that the Union's action in this case did not violate section 7116(b)(3) of the Statute.

IV . Conclusion

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, find that no prejudicial error was committed, and thus affirm those rulings. We have reconsidered the Judge's Decision and the entire record in this case, and adopt the Judge's findings, conclusions and Order to the extent that they are consistent with our decision in this case.

On review, we conclude that the Union did not violate section 7116(b)(3) of the Statute when it removed Kenneth Poteat from his position as Union Steward. We therefore reverse the Authority's previous Decision and Order finding a violation of section 7116(b)(3). [ v29 p11 ]

ORDER

The complaint in this case is dismissed in its entirety.

Issued, Washington, D.C., September 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v29 p12 ]

Member Frazier, stating additional concurring views:

I have joined in the Members' unanimous opinion that the Union has not been shown to have violated section 7116(b)(3) in the particular circumstances of this case. However, there are certain matters which warrant amplification.

The Authority's decision states that section 7116(b)(3) protects union members' performance of their duties as Federal employees from being adversely affected by labor organizations through the kinds of actions specified in that section. It is clear to me from this decision that in those cases where the record establishes that at least part of a union's basis for taking action against a member stems from the member's performance of his work as a Federal employee, and the other requirements of section 7116(b)(3) are met, the appropriate analysis to apply is the dual motive analysis that the Authority has applied in analogous contexts with respect to sections 7116(a)(1) and (b)(1) of the Statute. For example, Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 73 (1982), aff'd American Federation of Government Employees, Council of Social Security District Office Locals v. FLRA, 716 F.2d 47 (D.C. Cir. 1983); Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981); American Federation of Government Employees, Local 1920, 16 FLRA 464 (1984). If it is established by a preponderance of the evidence that the same union action would have taken place even in the absence of the protected activity, the Authority will not sustain a complaint of a violation of section 7116(b)(3).

The first step of our analysis therefore focuses on the character of the factors that motivated the Union's conduct against Poteat. We find two different motivating factors. First, as more fully set forth in the principal opinion, Poteat's reporting of patient abuse was at least the precipitating factor in his removal as a steward. Moreover, at least insofar as the Union's action was motivated by Poteat's report, it satisfies the elements of a section 7116(b)(3) violation. While there may be no "hard evidence" that the Union acted against Poteat based on a policy against reporting patient abuse (19 FLRA at 528), it is equally clear that Poteat's forced resignation because of the particular report that he filed had a coercive and disciplinary character. The Union's rapid removal of Poteat from his steward's position as a direct consequence of his reporting patient abuse clearly reflects and communicates Union standards of what constitutes acceptable and unacceptable [ v29 p13 ] conduct of its officials. In addition, the direct connection, temporally and causally, between Poteat's filing of the report and his removal discloses its character as punishment and reprisal for Poteat's performance of this aspect of his duties. If the record in this case were restricted to the matters discussed above, this evidence would establish a violation of section 7116(b)(3) by the Union.

However, as the Authority's opinion states, the record contains ample evidence of a second, independent set of factors underlying the Union's removal of Poteat as a union steward. We have found that, considering these independent factors, a preponderance of the evidence supports the conclusion that Poteat would have been removed as a steward even if he had not filed his report of patient abuse. Therefore, the record does not demonstrate that the Union violated section 7116(b)(3) in this case.

One other matter should be emphasized. In reviewing our original decision in this case, the D.C. Circuit found that the Authority's decision did not set forth "any comprehensible interpretation of section 7116(b)(3)." American Federation of Government Employees, Local 1738 v. FLRA, 806 F.2d 1105, 1106 (D.C. Cir. 1986). The court also made reference to private sector law, and directed that "the FLRA must reconcile its reading of section 7116(b)(3) with the heretofore inviolate principle that unions may choose their officers as they see fit, so long as the organization adheres to established, lawful procedures." Id.

As our decision in this case makes clear, the Authority's interpretation of section 7116 (b) (3) in its original decision in this case, and reemphasized in the Authority's decision on remand, is consistent with and finds its roots in case law developed under Executive Order 11491, rather than the private sector. Section 7135(b) of the Statute 6 provides for the continued application of [ v29 p14 ] principles established in decisions issued under the Executive Order until superseded by specific provisions of the Statute or decisions or regulations issued under the Statute.

The Authority's original decision in this case, 19 FLRA 520, and our current decision, reflect a determination to continue the policy established under the Executive Order in this area. As our current decision indicates, section 19(b)(3) of the Executive Order contained language virtually identical to the language of section 7116(b)(3). Moreover, as our current decision also states, the Authority does not attribute particular significance to the differences in wording between that section and its predecessors, in light of the background and development of section 7116(b)(3). These factors offer persuasive support for the conclusion that Congress intended the objectives of section 19(b)(3) of the Executive Order, which differ from private sector principles pertaining to internal union discipline to some degree, to continue under section 7116(b)(3). Conversely, there is no reference in section 7135(b) or in any other provision of the Statute to any requirement that private sector law govern the development of the law under the Statute. Had Congress chosen the private sector as a strict model for labor-management relations in the Federal sector, it could have done so quite simply. It did not.

The D.C. Circuit has suggested a good answer to those who would argue that as a general matter cases in the Federal sector should be resolved on the basis of private sector precedent and practice. In National Treasury Employees Union v. FLRA, Nos. 85-1597 and 85-1681, slip op. at 16-17 (D.C. Cir. Aug. 18, 1987), the court stated:

In Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), which issued before the Supreme Court's BATF opinion, this court urged caution in the application of private sector labor law precedent to public sector labor cases, particularly in the area of collective bargaining:

The scope of collective bargaining is far broader in the private sector, and the bargaining status of any given subject is determined by different statutory provisions and by different policy considerations. While these differences do not lead us to eschew completely the private sector [ v29 p15 ] model in defining the limits of negotiability in the public sector, we shall be careful to appreciate fully those distinctions between the private and public sectors that might necessitate a different legal analysis and conclusion.

699 F.2d at 1287 (citations omitted). While the FLRA may have been modeled after the NLRB, see National Treasury Employees Union v. FLRA, 810 F.2d 295, 299 (D.C. Cir. 1987), we are nevertheless called upon here to apply a statutory policy that is unique to the public sector; and while private sector law may provide useful "guidance" in certain instances, see, e.g., id. at 299-300; Library of Congress, 699 F.2d at 1287, the Act itself must ultimately be interpreted in the context of its own language, history, and case law.

The Authority's decision in this case is faithful to this cautionary note struck by the