35:0720(79)CO - - AFGE Local 987, Warner Robins, GA and Warner Robins Air Logistics Center, Robins AFB, GA - - 1990 FLRAdec CO - - v35 p720
[ v35 p720 ]
The decision of the Authority follows:
35 FLRA No. 79
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
WARNER ROBINS, GEORGIA
WARNER ROBINS AIR LOGISTICS CENTER
ROBINS AIR FORCE BASE, GEORGIA
DECISION AND ORDER
April 27, 1990
Before Chairman McKee and Members Talkin and Armendariz.
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 in the above-entitled proceeding. The complaint alleged that the Union violated section 7116(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) when it published an article in the Union newspaper, The Robins Review, stating that bargaining unit employees who were not Union members and who wanted grievances about a recently publicized overtime pay issue handled promptly should join the Union. The Judge found that the Union committed the unfair labor practices alleged in the complaint.
The Union filed exceptions to the Judge's decision. The General Counsel filed an opposition to the Union's 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. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, the opposition, and the entire record, we agree with the Judge that the Union violated section 7116(b)(1) of the Statute and we adopt the Judge's findings, conclusions, and recommended Order as modified below.
The American Federation of Government Employees (AFGE) is the exclusive representative of a nationwide consolidated unit of employees of the Air Force Logistics Command. The Union, AFGE Local 987, represents the unit employees at the Warner Robins Air Logistics Center (Warner Robins).
To communicate with the large number of bargaining unit employees, the Union publishes an official newspaper, The Robins Review. About 10,000 copies of each edition of the newspaper are distributed at Warner Robins. The August 27, 1987 issue of The Robins Review contained an article describing the nature of the Union's pending litigation on overtime pay. The article included a consent form and stated that the consent form "'must be completed by each employee wishing to be included as a plaintiff in this court action.'" Judge's Decision at 3 (quoting The Robins Review, Aug. 27, 1987).
The September 24, 1987 edition of The Robins Review included a front page article concerning a recent Authority decision on whether a union was obligated to represent both union members and nonmembers in a lawsuit.(1) The article stated that, according to the Authority, a union must treat union members and nonmembers equally only if it is acting in its role as their exclusive representative, and that, in the context of litigation, nonmembers can hire "their own lawyers and pursue their interests themselves." Judge's Decision at 3 (quoting The Robins Review, Sept. 24, 1987). The last sentence of the article stated that "[n]on-dues paying persons wishing to file grievances on the recently publicized overtime pay issue should join the [U]nion to assure prompt representation." Id.
III. Administrative Law Judge's Decision
To determine whether the Union's September 24, 1987 article violated section 7116(b)(1) of the Statute, the Judge looked at "what meaning the article would foreseeably communicate to a reasonable person." Judge's Decision at 5 (footnote omitted). The Judge further stated that the "test is fundamentally an objective one" and that the "intention of the Union is irrelevant." Id. at 5, 7.
The Judge looked at the article in its entirety and found that the Union reported on "a very specific and sophisticated distinction" between when a union acts as the exclusive representative and when it acts on behalf of employees, but not in its capacity as exclusive representative. Id. at 6. The Judge noted that in situations where a union is acting as the employees' exclusive representative, it may not create the impression that union members receive better representation than nonmembers. However, in situations where a union is not acting as the employees' exclusive representative, such as lawsuits, it is permitted to indicate that it will afford better representation to union members than to nonmembers.
The Judge found that "the difference between lawsuits and grievances under the collective bargaining agreement was never explained" in the article and concluded that it was "foreseeable that an employee reading the article would have concluded that if he wanted to file a grievance under the contract about overtime pay he would have to join the Union to get prompt representation." Id. The Judge noted that the article "did not specifically refer to the August 27, 1987, article" about the pending lawsuit nor "did it make clear that it was referring only to a lawsuit." Id.
The Judge concluded that the last sentence of the article "reasonably and foreseeably communicated to employees that Union members would receive prompter representation by AFGE Local 987 than non-members in the processing of grievances . . . concerning overtime pay" and that such a message violated section 7116(b)(1) of the Statute. Id. at 7. As part of his proposed remedial order, the Judge recommended that the Union be required to publish a copy of the recommended Notice in The Robins Review.
IV. Positions of the Parties
A. The Union
The Union argues that the Judge "misapplie[d] the reasonable person standard" by relying on "speculative formulations of unknown and unidentified employees." Respondent's Exceptions at 6, 7. The Union notes that it is "at least relevant" that none of the 10,000 unit employees who received The Robins Review complained to management or the Union that the article was coercive and that "a finding of a violation by implication would suggest 10,000 unreasonable employees[.]" Id. at 7, 8.
The Union contends that the September 24 article referred to its policy of offering "litigation services to members while denying them to nonmembers" and that "a statement of such policy" does not violate the Statute. Id. at 12. The Union further asserts that the Union official who used the term "grievance" in the article intended it to refer to the overtime pay lawsuit. See id. at 3.
The Union contends that, by focusing on the term "grievance" rather than on the phrase "grievances on the recently publicized overtime pay issue[,]" the Judge read the last sentence of the article "totally in a vacuum and out of context." Id. at 4, 5. Based on the wide distribution of the August 27 edition of The Robins Review to the same employees, the Union argues that it "was clear to employees" that the "overtime pay issue" mentioned in the September 24 article referred to the ongoing overtime pay lawsuit, and that, therefore, "no coercion was possible." Id. at 5, 9.
B. The General Counsel
The General Counsel states that the Union "offers no new arguments" and is "simply not correct in its assertion that the Judge ignored 'material' facts." General Counsel's Opposition at 1, 2. Rather, the General Counsel states that the Judge analyzed the article and "all the circumstances" to conclude that "the article created a false and illegal impression." Id. at 1, emphasis in original. The General Counsel further notes that the facts of this case "were largely uncontested" and that "[o]nly the legal effect of the article was really at issue." Id. at 2.
The General Counsel contends that the Judge "correctly applied the 'reasonable perception' test to the facts in this case" and that because the Union's exceptions raise the same arguments raised before the Judge, they are "totally without merit." Id. at 2-3. To address the Union's previous arguments, the General Counsel incorporates by reference its brief to the Judge.
We find that the Union's September 24, 1987 article violated section 7116(b)(1) of the Statute.
The standard for determining whether a union's statement violates section 7116(b)(1) of the Statute is an objective one. The question is whether, under the circumstances, employees could reasonably have drawn a coercive inference from the statement. See Federal Employees Metal Trades Council, AFL-CIO, and International Association of Bridge, Structural and Ornamental Iron Workers, Local 745, AFL-CIO, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 12 FLRA 276, 296 (1983) (Federal Employees Metal Trades Council). As in cases involving a violation of section 7116(a)(1) of the Statute, the standard for a section 7116(b)(1) violation is not based on the subjective perceptions of the employee or on the intent of the speaker. See Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1124 (1987). Consequently, we reject the Union's argument that it did not commit an unfair labor practice because no employee complained about the article and the Union official who wrote the article did not intend for it to be coercive.
Where a union is acting as the employees' exclusive representative, the Statute requires that the union's activities be undertaken without regard to union membership. See American Federation of Government Employees, Local 916, AFL-CIO, 28 FLRA 988, 1000-1001 (1987) (AFGE) (a union violated section 7116(b)(1) when a union representative told an employee that she would be better represented by the union in her grievance if she joined the union). This obligation does not apply to situations where the union is not acting as the employees' exclusive representative. See Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908, 918 (1987) (Fort Bragg) (a union does not violate section 7116(b)(1) of the Statute when it communicates to unit employees that representation in a lawsuit will differ depending on whether employees are union members).
The issue in this case is whether employees could reasonably have drawn a coercive inference from the Union's September 24, 1987 statement that "[n]on-dues paying persons wishing to file grievances on the recently publicized overtime pay issue should join the [U]nion to assure prompt representation." Judge's Decision at 3. We find that the Union's statement could reasonably be construed as creating the impression that employees wishing to file grievances on an overtime pay issue should join the Union to ensure prompt representation. We note that the September 24 article used the word "grievances" and did not specify that it was referring only to a lawsuit. Although the Union's August 27 article explained the pending overtime pay lawsuit, that article was published a month earlier and was not specifically referenced in the Union's September 24 article. Based on the lapse of time between the August 27 and the September 24 articles, we cannot agree with the Union's statement that it "was clear to employees" that the overtime pay issue mentioned in the September 24 article referred to the lawsuit described in the August 27 article. Respondent's Exceptions at 5.
Because of both the lapse of time between the two articles and the Union's use of the term "grievances," we find that employees could reasonably have interpreted the September 24 statement to mean that an employee's Union membership would affect how the Union will process overtime pay grievances. We conclude, therefore, that employees could reasonably have drawn a coercive inference from the statement. See Federal Employees Metal Trades Council (a union violated section 7116(b)(1) when an employee could reasonably have drawn a coercive inference from a statement suggesting a direct relationship between union membership and the existence of union support in processing the employee's grievance). Accordingly, we find that the Union's September 24, 1987 article violated section 7116(b)(1) of the Statute by interfering with, restraining, or coercing employees in the exercise of their section 7102 right to join or refrain from joining the Union without fear of penalty or reprisal.
The Judge concluded that, "because this matter was communicated in The Robins Review and because of the similar violation" he had found in case no. 4-CO-80001, "a copy of the 'Notice' herein should be published and printed in one regular edition of The Robins Review." Judge's Decision at 7.(2) Rather than requiring the Union to publish a copy of the remedial Notice in The Robins Review, we believe that it would be more beneficial to employees if the Union were directed to publish in one regular edition of The Robins Review a clarification that its policy, consistent with the requirements of the Statute, is to represent bargaining unit members in grievance proceedings under the collective bargaining agreement without regard to Union membership. Accordingly, we modify the Judge's recommended Order in this respect.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the American Federation of Government Employees, Local 987, Warner Robins, Georgia, shall:
1. Cease and desist from:
(a) Publishing in The Robins Review or otherwise creating the impression that nonmember unit employees seeking representation by the American Federation of Government Employees, Local 987, the employees' exclusive representative, in the processing of grievances would be required to join the Union to receive prompt representation.
(b) Interfering with, restraining, or coercing unit employees in the exercise of their right to join or to refrain from joining the