38:0615(57)NG - - NTEU and Treasury, IRS - - 1990 FLRAdec NG - - v38 p615



[ v38 p615 ]
38:0615(57)NG
The decision of the Authority follows:


38 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

(Agency)

0-NG-1713

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). This case concerns the negotiability of three provisions(1) of two proposed collective bargaining agreements -- National Office, Regions and Districts (NORD) and National Centers Agreement (NCA) -- negotiated by the Union and the Internal Revenue Service (the Activity) that were disapproved by the U.S. Department of the Treasury (the Agency) under section 7114(c) of the Statute.

Provision 1, negotiated for the NORD agreement, and Provision 2, negotiated for the NCA agreement, require the Activity to provide the Union with office space and certain specific office equipment. We find that Provisions 1 and 2 are negotiable because they are not inconsistent with Government-wide regulations, specifically, 5 C.F.R. § 735.205 and 41 C.F.R. § 201-38.007.

Provision 3, negotiated for both the NORD and NCA agreements, provides that the Union has the right to collect fees from non-members for arbitrating grievances on their behalf. We find that Provision 3 is nonnegotiable because it is inconsistent with the Union's duty of fair representation under section 7114(a)(1) of the Statute.

II. Provisions 1 and 2

Provision 1

Article 11; Section 10 (NORD)

In each Employer appointing office, the Union will be provided with office space which is between two hundred (200) and two hundred fifty (250) square feet and is located in the headquarters of the office. The space is provided for the exclusive use of the Union and will be supplied with a desk, desk chair, three (3) regular chairs, a 4-5 drawer lockable cabinet and a telephone. The Employer will provide enclosed office space unless that space provided to the general work force is open office space and enclosed space is not available for use. Union representatives will have access to such space to the same extent that employees in general have access to work areas containing the Union office space.

Provision 2

Article 11; Section 10 (NCA)

In each Employer appointing office, the Union will be provided with office space which is between two hundred (200) and two hundred fifty (250) square feet and is located in the headquarters of the office. The space is provided for the exclusive use of the Union and will be supplied with a desk, desk chair, three

(3) regular chairs, a 4-5 drawer lockable cabinet, a computer that is compatible with TEPS, and a telephone. The Employer will provide enclosed office space unless that space provided to the general work force is open office space and enclosed space is not available for use. Union representatives will have access to such space to the same extent that employees in general have access to work areas containing the Union office space.

A. Positions of the Parties

The Agency contends that because Provisions 1 and 2, by their terms or otherwise, do not preclude the Union from using Government equipment for personal or internal business, those provisions are contrary to Government-wide regulations, specifically, 5 C.F.R. 735.205, which restricts the use of Government equipment to "'officially approved activities,'" and 41 C.F.R. § 201-38.007, which restricts the use of Government telephones to calls "necessary in the interest of Government." For the same reasons, the Agency maintains that Provisions 1 and 2 are distinguishable from a proposal providing the Union with access to a Government computer for "official union business," found negotiable in National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA 249 (1986) (Proposal 1) (Internal Revenue Service).

The Union states that it intends, as it has in the past, to use the office space and equipment that are the subject matter of Provisions 1 and 2 for labor-management relations activities, and that such use is consistent with the "officially approved activities" requirements of 5 C.F.R. § 735.205. Reply Brief at 2. The Union states that the "primary and dominant use" of the office space and equipment will be for labor-management relations. Id. at 2-3. It is the Union's view "that incidental use of office space for such things as storing election records, tax returns, or even membership forms" does not "undermine this primary use" or render the disputed provisions "illegal" Id. at 2-3. Similarly, the Union argues that the incidental use of equipment such as computers and telephones for matters not related to labor-management relations is not contrary to 5 C.F.R. 735.205. Id. at 3-4. The Union, however, does not specify what these other matters might be.

The Union, in its Petition and Reply Brief, does not specifically address the Agency's claim that Provisions 1 and 2 conflict with 41 C.F.R. § 201-38.007.

B. Analysis and Conclusions

Provisions 1 and 2 require the Activity to provide the Union with office space and certain office equipment, including a telephone. Additionally, Provision 2 requires the Activity to provide the Union with a particular type of computer.

The Union's stated intent regarding Provisions 1 and 2 is that it will use the office equipment consistent with past practices and 5 C.F.R. § 735.205 to promote "an effective labor-management relationship." Reply brief at 3. It explains that the intended primary and dominant use of the office space and equipment will be for labor-management relations activities, but that there may be some incidental use of the property for such purposes as the storage of election returns, tax returns and membership forms. The Union's stated intent, which does not include any purely personal use, is consistent with the wording of the provisions and we adopt it for purposes of this decision.

The Agency's position is that because Provisions 1 and 2 do not preclude the use of the office space and equipment for personal and internal union business use, the provisions do not fall within the ambit of "officially approved activities" or "necessary in the interest of Government" and therefore, are inconsistent with 5 C.F.R. § 735.205 and 41 C.F.R. 201-38.007. For the following reasons, we disagree.

With respect to the Union's intent that the primary and dominant use of the equipment and space will be for labor-management relations activities, the Authority has concluded in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497, 497-98 (1987) (Proposal 1) (Bureau of Alcohol, Tobacco and Firearms), reversed as to other matters sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) and National Federation of Federal Employees and General Services Administration, 24 FLRA 430, 431-33 (1986) (General Services Administration) that the use of Government property by a union for such purposes is consistent with 5 C.F.R. § 735.205 and 41 C.F.R. § 201.38.007. See also American Federation of Government Employees, AFL-CIO, Local 1631 and Veterans Administration Medical Center, Chillichothe, Ohio, 25 FLRA 366, 369 (1987) (proposal permitting the union use of office space found negotiable because it was within the discretion of the agency and was not otherwise nonnegotiable). Thus, to the extent that the office space and equipment will be used for labor-management relations activities, Provisions 1 and 2 are negotiable.

5 U.S.C. § 735.205 restricts the use of Government property to "officially approved activities." Similarly, 41 C.F.R. § 201-38.007-1(a) limits the use of Government telephones to "the conduct of official business" and 41 C.F.R. § 201-38.007-1(b) permits an agency to authorize the use of its telephone systems if such use is "necessary in the interest of the Government." Thus, there is nothing in the language of either regulation that would preclude the Agency from approving or authorizing the Union's use of the office and the equipment in that office for the purposes suggested by the Union. Such determinations are within the discretionary administrative authority of an agency and an agency is obligated to exercise that discretion through negotiations unless precluded by regulatory or statutory provisions. Bureau of Alcohol, Tobacco and Firearms, 26 FLRA at 497-98 and General Services Administration, 24 FLRA at 431-33.

In the instant case, we conclude that the Agency has failed to establish that it is prohibited from exercising through negotiations its discretion to determine that the Union's stated purpose regarding the use of the office space and equipment is sufficiently within the interest of the United States so as to constitute official business.

With respect to the Union's statement that it may incidentally use the office space and equipment for such institutional purposes as the storage of election records, tax returns and membership forms, we conclude, in the circumstances of this case, that the use of Government property by the Union for such purposes is not contrary to 5 C.F.R. 735.205 and 41 C.F.R. § 201-38.007. In this regard, we disagree with the Agency that the use, however minimal, of Government property for internal Union business deprives the Agency of the discretion to authorize that use under 5 U.S.C. § 735.205 and 41 U.S.C. § 201-38.007. (2)

The Agency appears to be arguing that it may not authorize the use of Government property for any amount of internal union business. In this regard, it relies on Internal Revenue Service, in which the disputed proposal expressly limited the use of a computer to "official" union business and the union had stated that it would not be used for internal union business. In finding the proposal to be negotiable, the Authority noted distinctions regarding the scope of internal union business made in the "related context" of official time for union representatives. 24 FLRA at 252, citing National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/ West Roxbury, MA, 23 FLRA 542 (1986) (Veterans Administration Medical Center). Although cases involving the negotiability of proposals regarding official time may be useful in defining the scope of internal union business, they are not relevant to a determination of whether an agency may authorize the use of its property when that use may involve some internal union matters. Section 7131(b) of the Statute expressly prohibits the use of official time for certain specified purposes relating to internal union business. Veterans Administration Regional Office. The Statute contains no similar restrictions on the use of Government space and equipment, which, even when used for purposes that do not directly concern labor-management relations, do not require any activities on duty time that would be inconsistent with section 7131(b).

Section 7101 of the Statute states that the right of employees in the Federal sector to "participate through labor organizations . . . safeguards the public interest." In our view, the continued viability of those labor organizations may depend on their ability to attend to essential institutional needs at the workplace. The "incidental uses" suggested by the Union for the space and the equipment--storage of election returns, tax returns and membership forms--fulfill such institutional needs. We see no reason why they would not be among the uses that could be "officially approved" under 5 U.S.C. § 735.205 or "necessary in the interest of Government" under 41 U.S.C. § 201-38.007-1(b). Accordingly, contrary to the Agency's argument, we find these provisions comparable in effect to Proposal 1 in Internal Revenue Service.

Specifically with regard to the provision of a telephone required by Provisions 1 and 2, the record does not establish that Provisions 1 and 2 provide for use of Government telephones in a manner that does not comport with the requirements and restrictions of 41 C.F.R. § 201-38.007. See 41 C.F.R. § 201-38.007-1(c) and (d), which sets forth examples of authorized calls not related to labor-management relations that may be made over Government telephones. Moreover, although the Union admits that there may be some incidental, unspecified use of the telephones, it asserts that it intends to use the telephones primarily "to foster labor-management relations." An agency cannot remove a negotiable item -- one that is consistent with applicable law and regulation -- from bargaining because it expects it may be abused. Other proceedings are available to remedy such abuse if it occurs. Veterans Administration Medical Center.

Based on the foregoing, we conclude that the Agency has failed to establish that it is prohibited from exercising through negotiations its discretion to authorize the use of Government property described in Provisions 1 and 2. Accordingly, we conclude Provisions 1 and 2 are not contrary to Government-wide regulations, specifically, 5 C.F.R. 735.205 and 41 C.F.R. § 201-38.007, and, therefore, are negotiable.

III. Provision 3

Article 43; Section 7 (NORD and NCA)

The Employer recognizes the Union's right to collect fees from nonmembers for arbitrating cases on their behalf.

A. Positions of the Parties

The Agency contends that Provision 3 is nonnegotiable because it is inconsistent with section 7114(a)(1) of the Statute.

The Agency asserts that section 7114(a)(1) "requires an exclusive representative [to] be responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." Statement of Position at 5. According to the Agency, the scope of the duty of fair representation extends to those areas where a union is acting as the exclusive representative of unit employees. The Agency argues that arbitration is an area where the duty attaches and, therefore, the Union cannot make a distinction between members and non-members regarding payment for arbitration. In support of its position, the Agency relies on Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908 (1987).

The Agency also maintains that because including Provision 3 in the collective bargaining agreement makes it appear that the Activity is a party to the Union's allegedly discriminatory treatment of non-members, the Activity would be subject to an unfair labor practice violation under section 7116(a)(2) of the Statute.

The Union states that Provision 3 is intended "to inform bargaining unit employees [who are non-members] that their exclusive representative asserts the right to charge them for the cost of arbitrating their grievances." Reply Brief at 6. According to the Union, the costs that will be passed on to the non-members will include the arbitrator's fee, transcript fee and room rental fee. Id. at 7. The Union explains further that "[i]n no way will the union charge the employee for the costs of representation, e.g. the salary and travel costs of the union representative, etc." Id. In this connection the Union cites a decision of the National Labor Relations Board (NLRB) in Local 825, International Union of Operating Engineers, AFL-CIO (H. John Homan Company), 137 NLRB 1043 (1962) (International Union of Operating Engineers) as an example of a case where a "nonrepresentational charge" to non-members was held to be "legal." Id. at 7. The Union states that "common sense and fundamental fairness rebel as [sic] the notion that a private organization can be prohibited from collecting expenses it incurs on behalf of nonmembers it is required to represent by law." Reply Brief at 9-10.

Additionally, the Union argues that Provision 3, by allowing the charging of non-members for the costs of arbitrating grievances, implements a non-arbitrary standard applied in a non-discriminatory manner to all unit employees. In this connection, the Union maintains that under the provision non-members would merely be paying for the same costs that members pay for through their dues. Reply Brief at 7-8. The Union argues that Provision 3 does not pertain to the Statute because it involves an internal matter between a private organization and recipients of its services. Reply Brief at 11.

By letter dated August 18, 1989, the Union advised the Authority that its national convention had adopted a policy of charging non-members for the costs of arbitrating grievances on their behalf. The Union asserts that such a policy protects both members and non-members from abuse. Reply Brief at 8-9. The Union further states "that a union has a right to protect itself from 'free riders.'" Reply Brief at 10. For this principle, the Union cites the Supreme Court's decision in Abood v. Detroit Board of Education, 431 U.S. 209, 224 (1977) (Abood).

B. Analysis and Conclusions

Provision 3 informs non-members of the Union that they are required to pay the Union for certain costs incurred in arbitrating grievances on their behalf, excluding the travel expenses and salary of the Union's designated representative in the grievance-arbitration process. This interpretation of Provision 3 is based on the Union's statement of intent and explanation, which are consistent with the wording of the provision, and we adopt it for purposes of this decision.

The Agency contends that Provision 3 is inconsistent with the Union's duty of fair representation under section 7114(a)(1) of the Statute and, therefore, is nonnegotiable. We agree.

Section 7114(a)(1) provides, in pertinent part, that "[a]n 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."

In Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico, 36 FLRA 776 (1990) (Antilles Consolidated), we reexamined the Authority's decisions and court decisions relating to a union's duty of fair representation under section 7114(a)(1) of the Statute. We reaffirmed that the duty to fairly represent unit employees applies only to activities undertaken by a labor organization as exclusive representative. 36 FLRA at 788-89. The Authority has consistently found that a union acts as the exclusive representative of all unit employees, members and non-members alike, with regard to all stages of grievance processing. American Federation of Government Employees, Local 987, Warner Robins, Georgia, 35 FLRA 720, 724-25 (1990); American Federation of Government Employees, Local 916, AFL-CIO, 28 FLRA 988, 1000-01 (1987); 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). Consequently, it is clear that a union has a duty of fair representation regarding grievance processing, including representation at the arbitration stage, for all unit employees, and that it violates section 7114(a)(1) of the Statute if it breaches that duty. Accordingly, we must determine whether the Union's requirement that non-members pay certain costs incurred by the Union when arbitrating grievances on their behalf is consistent with the Union's duty of fair representation.

It is undisputed that, under Provision 3, Union members would not be charged certain costs for arbitrating grievances on their behalf. Certain costs of arbitrating grievances, therefore, would be assessed exclusively according to the membership status of unit employees. That is, grievance-arbitration would be available to non-members only if they pay certain costs that are not paid by members. The Union asserts in this regard that the imposition of payment for certain costs is not discriminatory because non-members would not be charged the travel expenses and salary of the Union's designated representative in the grievance-arbitration process and because Union members pay all costs for grievance-arbitration through the dues system. Reply Brief at 6-8. We reject these assertions. A union's obligations under section 7114(a)(1) require that, with respect to matters falling within the scope of that section, a union's activities be undertaken without regard to membership status. Antilles Consolidated, 36 FLRA at 797. By requiring bargaining unit employees who are non-members to pay certain costs for arbitration, Provision 3 discriminates against non-members on the basis of their membership status, and, therefore, is inconsistent with 7114(a)(1) of the Statute.

We reject the Union's assertion that the NLRB's decision in International Union of Operating Engineers is similar to the instant case. That case involved a hiring hall in the private sector and is not applicable to the issue in dispute. See Exxon Company, U.S.A., 253 NLRB 213, 218 n.12 (1980) (In finding that "any service fee imposed by a union on non-union members of the bargaining unit it purports to represent is a per se violation of the Act[,]" the Administrative Law Judge distinguished International Union of Operating Engineers as a case that "deals with hiring halls and has no application to the present case."). The NLRB has consistently held that where membership in a labor organization is not compelled, a union may not require a fee from non-members for vital collective-bargaining services, including grievance processing. Furniture Workers Local 282 (Davis Co.), 291 NLRB No. 24 (1988); Columbus Area Local, American Postal Workers Union, AFL-CIO (U.S. Postal Service), 277 NLRB 541, 543 (1985); International Association of Machinists and Aerospace Workers, Local Union No. 697, AFL-CIO (The H. O. Canfield Rubber Company of Virginia, Inc.), 223 NLRB 832, 835 (1976).

Similarly, we find misplaced the Union's reliance on the Supreme Court's decision in Abood for the principle that a union has the right to protect itself from "free riders." The statement in that case concerning "free riders" was made in reference to the validity of an agency-shop provision of a state statute. 431 U.S. at 224. Section 7102 of the Statute, by contrast, precludes an agency shop in the Federal sector. Service Employees' International Union, AFL-CIO, Local 556 and Department of the Army, Headquarters, U.S. Army Support Command, Fort Shafter, Hawaii, 1 FLRA 563 (1979).

Based on the foregoing, we conclude that Provision 3 is nonnegotiable.

IV. Order

The Agency must rescind its disapproval of Provisions 1 and 2.(3) The petition for review concerning Provision 3 is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union withdrew its appeal as to Article 18, Section 2. Union's Reply Brief at 2. Additionally, in response to the Union's reply brief, the Agency withdrew its disapproval of Article