44:0959(80)CO - - AFGE Local 1857 and Mary Elizabeth Crawford - - 1992 FLRAdec CO - - v44 p959
[ v44 p959 ]
The decision of the Authority follows:
44 FLRA No. 80
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
MARY ELIZABETH CRAWFORD
DECISION AND ORDER
April 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondent and by the General Counsel to the attached decision of the Administrative Law Judge. Each party filed an opposition or response to the other party's exceptions. In addition, the General Counsel moved to strike portions of the Union's response to the General Counsel's exceptions.
The complaint alleges that the Union violated section 7116(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by suspending one of its stewards and by upholding the suspension by action of its Executive Board, in part because the steward caused another employee to file an unfair labor practice charge against the Union. The Judge found that the Respondent violated the Statute by the action of its Executive Board. He dismissed the other allegation as untimely filed. There was no exception to the dismissal of that allegation.
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. On consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions. We adopt the Judge's recommended order to the extent consistent with this decision.
Mary E. Crawford, the Charging Party, is employed at McClellan Air Force Base, Sacramento, California. She became a member of the Union and a steward in 1987.
On December 15, 1989, employee Valerie Hobin filed an unfair labor practice charge with the Authority, alleging that the Union had unlawfully restrained her in the exercise of her rights. Hobin asserted that the Union had refused to represent her in an arbitration because she was not a Union member. Attached to Hobin's charge was a statement asserting that the Union president had told stewards not to advise grievants, especially nonmembers, that they could appeal decisions of the Union's arbitration committee. The attachment also stated that Crawford had been asked to sign off on the arbitration committee's decision not to go to arbitration on Hobin's grievance, and that Crawford was upset over that decision. Finally, it stated that a member of the arbitration committee informed Crawford that there was no sense in taking Hobin's grievance to arbitration because Hobin's appraisal, which was the subject of her grievance, could only be increased by 7 or 8 points.
In a letter dated January 5, 1990, to Union Secretary Cathy Bogardt, Union Vice President Dora Solorio charged Crawford with conduct detrimental to the interests of the Union and recommended removing Crawford as steward, citing among other things the circumstances surrounding Hobin's unfair labor practice charge.
In the removal action, the Union alleged, among other things, that Crawford had caused Hobin to file the unfair labor practice charge. The Union alleged that Crawford had been present at a meeting where the Union president had urged stewards not to advise grievants, especially nonmembers, that they could appeal an arbitration committee's decision. It was further alleged that Hobin must have learned of the Union procedures from Crawford, and that Crawford had engaged in misfeasance by disclosing the Union's procedure to Hobin.
A second ground on which the Union assertedly based Crawford's removal as steward concerned Crawford's statement to employee Fred White on December 11, 1989. The Union alleged that White had asked Crawford to withdraw grievances he had filed but that Crawford had said that there was no need to withdraw the grievances because the Executive Board would vote to take no further action. The Union alleged that this conduct violated its constitution and by-laws by making known information to persons not entitled to it; it also alleged that Crawford had engaged in misfeasance by making such a statement, and that she had been insubordinate by failing to comply with White's request to withdraw his grievances.
By letter dated January 19, 1990, Crawford was informed of the charges against her, notified that she was suspended as steward as of that date, and told that a committee of her peers would meet to discuss the charges.
Crawford raised the allegations discussed above, as well as others, with the peer committee, when it met on February 28, 1990. Crawford told the peer committee that she had given no information to Hobin. Crawford advised the committee that she had told Hobin only that if Hobin was not satisfied with the arbitration committee's decision, Hobin would have to talk to someone else.
On March 7, 1990 the peer committee issued its findings that there was probable cause for the suspension of Crawford. On March 20, 1990, the president of the Union informed Crawford of the committee's findings, and his decision to remove her as steward based on the recommendation of the peer committee.
An appeal to the Union Executive Board resulted in a decision issued June 12, 1990, upholding Crawford's removal. Under the Union's constitution, that decision is final. Crawford was notified of the Executive Board's action on June 15, 1990.(1) The bases for the Executive Board's decision, as reported by the Judge, were as follows:
Charge No. 1 - relating to the statement by Crawford to White that he need not "withdraw his grievances because the Executive Board would vote that no further action be taken. . . ."
The Board concluded this statement was inimical to the Union as a harmful untruth, that Crawford's failure to process White's grievance showed serious neglect as a steward. The Board found "Probable Cause."
. . . .
Charge No. 5 - relating to Crawford's making known business of the Union to persons not entitled to such knowledge, and causing Hobin to file an unfair labor practice charge against the Union.
The Board concluded Crawford did violate the National Constitution by letting persons, not entitled, to know the internal union business. It found that the only way Hobin could have made the statements she did in her unfair labor practice charge against the Union was by Crawford telling her. Thus, concluded the Board, Crawford committed misfeasance as a Union representative. It found "Probable Cause."
Judge's Decision at 5-6.
In the hearing before the Judge, Union Secretary Bogardt, who is one of the six members of the Executive Board, testified that Charge No. 1 would have been sufficient grounds for Crawford's removal because Crawford's conduct could have caused the Union to expend money unnecessarily. Transcript at 62-3.
On December 13, 1990, Crawford filed an unfair labor practice charge with the Authority alleging, among other things, that the president of the Union and the Executive Board had punished her "because they believed I informed a member of the bargaining unit of the Union's nefarious policy of discriminating against non-union members." General Counsel's Exh. 1(a). This allegation referred to an attachment to the charge that stated, in relevant part, that the President of the Union and the Executive Board "took unjust disciplinary action against me as a reprisal because they believed that I advised a bargaining unit member of their [sic] rights and revealed their discriminatory practices against non-union members[,] thereby subjecting them to an Unfair Labor Practice charge." Id. On March 7, 1991, Crawford amended her charge to state: "The Union violated the [S]tatute when they removed me as a steward, because I provided information and advice which enabled a bargaining unit member to file an Unfair Labor Practice [charge] against AFGE Local 1857." General Counsel's Exh. 1(c).
III. Administrative Law Judge's Decision
The Judge dismissed as untimely the allegation that the initial action by the Union suspending Crawford from her position as steward was an unfair labor practice. However, he found that the allegation of the complaint regarding her removal by the Union's Executive Board was not barred by the six month statute of limitations set forth in section 7118(a)(4) of the Statute.
On the merits, the Judge found that, under Letterkenny Army Depot, 35 FLRA 113 (1990), the General Counsel had established a prima facie case that the Executive Board had removed Crawford as steward at least in part because she had engaged in the protected activity of causing an employee to file an unfair labor practice charge against the Union, which was the basis of Charge No. 5.
The Judge found further that the Union had not met its burden of showing that it would have taken the action against Crawford in the absence of her protected activity. Specifically, the Judge noted that this was not a situation where it was established that the Union would have taken the action for permissible reasons, even though there also was an impermissible reason. Thus, although the Judge noted Bogardt's testimony that Charge No. 1 would have been sufficient grounds for removing Crawford, the Judge was "not persuaded that Respondent has clearly shown that the Executive Board would have come to the same conclusion" as witness Bogardt. Judge's Decision at 11. On this point, the Judge stated that
there is no evidence, nor testimony by the other Board members, that the charges concerning Crawford's conduct toward White and Hobin were mutually exclusive or treated independently so that a vote was rendered to uphold Crawford's removal by either charge. The charges against Crawford were packaged, and after "Probable Cause" was found as to Charges 1 and 5, the Executive Board concluded:
This Executive Board Committee's decision is as follows: Review of the record of the charges filed against Mary Crawford as a steward, by Dora Solorio, caused this Committee to decide the removal of Ms. Crawford from her position as Union Steward was proper. The decision was made by a majority of the Executive Board Committee.
Id. at 11-12.
The Judge concluded that "[a]lthough it may well be that the Board's Committee would have upheld Crawford's removal in the absence of the charge concerning Hobin's filing of a charge against the Respondent . . . the record falls short of sufficient evidence or proof that such would have occurred." Id. at 12. Accordingly, he found that the Union had not rebutted the prima facie case established by the General Counsel that the Executive Board upheld Crawford's removal because she had caused Hobin to file an unfair labor practice charge against the Union.
To remedy the violation, in addition to recommending the usual cease and desist order and posting of a notice, the Judge recommended that the Union be ordered to direct its Executive Board Committee to rescind its decision, to reconvene, and to reconsider the charges filed against Crawford, "without regard to . . . the charge" that Crawford caused an employee to file an unfair labor practice charge against the Union. Id. at 13.
IV. Positions of the Parties
The Respondent excepts to the Judge's decision on the grounds that the original charge is unrelated to the complaint, and that the amended charge, which states the basis for the complaint for the first time, is untimely. On the merits, the Respondent excepts to the Judge's treatment of Bogardt's testimony, asserting that Bogardt was testifying on behalf of the Executive Board when she stated that Charge No. 1 was a sufficient basis for Crawford's removal and that had the Judge not misled the Union as to his interpretation of Bogardt's testimony, the Union would have presented another witness to corroborate Bogardt's statement.(2)
The General Counsel disputes the Respondent's assertions regarding the timeliness of the charge. The General Counsel also disputes the Respondent's assertions regarding the Judge's treatment of Bogardt's testimony. Thus, the General Counsel contends that it was never established that Bogardt was testifying on behalf of the Executive Board and that it was incumbent on the Union to present additional evidence on this issue if it saw such a need. The General Counsel also argues that Bogardt's testimony was inadequate to establish that the Executive Board had treated the charges against Crawford separately, and notes further that there was no indication that other witnesses would have presented any new or different evidence on that crucial point, but only that they would have corroborated Bogardt's testimony.
The General Counsel excepts to the remedy recommended by the Judge. The General Counsel argues that the Respondent should be required to reinstate Crawford to her position as steward. In response, the Union contends that reinstatement would have been beyond the Judge's authority, and asserts that in any event Crawford would be ineligible to be a steward because she voluntarily dropped her Union membership and is no longer a member. The General Counsel requests that the Authority strike part of the Union's response, based on the ground that two documents submitted by the Union in support of its assertion that Crawford is no longer a member were not in the record before the Judge and therefore cannot be considered by the Authority. In addition, the General Counsel notes that the record does not show, and the Union has not argued, that Crawford is not eligible to be a member.
IV. Analysis and Conclusions
A. The Complaint Was Not Barred by Section 7118
We adopt the Judge's finding that the complaint regarding the Executive Board's action was not barred by Section 7118(a)(4)(A), which provides that no complaint shall be issued based on any alleged unfair labor practice that occurred more than 6 months before the filing of the charge. The Judge determined that the original charge, filed December 13, 1990, was timely with regard to the Executive Board's action because it was filed less than 6 months after the date when Crawford was notified of the Executive Board's decision.
We reject the Union's argument that the basis for the complaint should have been the amended charge, filed more than 6 months after June 15, 1990, rather than the original charge. Contrary to the Union's assertion, the original charge contained an allegation sufficient to support the allegation of the complaint that the Union acted against Crawford because she caused employee Hobin to file an unfair labor practice charge against the Union.
B. The Respondent Violated the Statute
In agreement with the Judge, we conclude that the Respondent did not establish that it would have removed Crawford for a permissible reason, had she not caused Hobin to file an unfair labor practice charge against the Union. Accordingly, the Respondent did not rebut the prima facie case established by the General Counsel that the Union acted against Crawford because of her protected activity. See Letterkenny Army Depot, 35 FLRA at 119.
We recognize that, in answer to a hypothetical question, Bogardt testified that she "would" have found probable cause to remove a steward based on the charge concerning Crawford's treatment of White's request to withdraw his grievances, actions that did not involve protected activity. Transcript at 62. Bogardt was one of six members of the Executive Board, which made its decisions by majority vote. Id. However, the Judge concluded that there was insufficient evidence to find that the charges concerning Crawford's conduct toward White and Hobin "were mutually exclusive or treated independently so that a vote was rendered to uphold Crawford's removal by either charge." Judge's Decision at 11. Rather, he concluded that the charges against Crawford were "packaged" together, and that after "Probable Cause" was found as to both Charges 1 and 5, the Executive Board concluded that the removal of Crawford from her position was proper. Id. at 11-12.
Thus, it is clear that the Judge's conclusion was based on record evidence establishing that the Executive Board reached its decision by treating the charges as a "package." Therefore, any testimony as to what "would" have been sufficient if a separate vote had been taken on each charge is speculative and irrelevant.(3) Consequently, although it is possible that the Executive Board would have upheld the removal of Crawford based solely on Charge No. 1, we agree with the Judge's conclusion that "the record falls short of sufficient evidence or proof that such would have occurred." Judge's Decision at 12. Accordingly, the Union has not rebutted the General Counsel's prima facie case of unlawful discrimination under section 7116(b)(1) of the Statute.
C. The Remedy
The General Counsel excepts to the Judge's failure to order the Respondent to reinstate Crawford to her position, arguing that reinstatement or other affirmative action is necessary to remedy violations of section 7116(b) of the Statute. The Respondent opposes the General Counsel's position on the basis that directing a union to reinstate a steward would improperly interfere with the union's right to appoint and/or discipline its representatives.
The Authority has directed reinstatement of a union official to remedy violations of section 7116(b) when the violation involved interference with access to the Authority's processes. National Treasury Employees Union and National Treasury Employees Union, Chapter 53, 6 FLRA 218 (1981).(4)
In that case, where a steward was disciplined for having given testimony that was adverse to the union at an Authority proceeding, the Authority noted that such a remedy "should not be construed as abrogating the union's control of its own internal affairs in the absence of a statutory violation such as here involved." Id. at 218. In concluding that the union had violated section 7116(b)(1) of the Statute, the Authority reconciled the policies embodied in section 7116(c), which protect a union's right to discipline members to enforce its internal procedures, with the protection of the employee's right to participate in Authority proceedings.
In a case involving similar considerations, the National Labor Relations Board (the Board) ordered reinstatement of an alternate steward. General Teamsters Local Union No. 528, 237 NLRB 258 (1978). The union had argued that its decision not to reappoint the steward was purely a matter of internal union affairs and that the Board thus the lacked power to order it to reappoint him. The Board noted the public policy considerations that dictate that employees be afforded unimpeded access to the Board and the chilling effect that the failure to require the steward's reinstatement would have on the right of other unit employees to file charges.
We reach the same conclusion here. In our view, if it remains unremedied, the Union's unlawful treatment of its steward could have a substantial chilling effect on other employees or Union officials who might otherwise wish to assist employees in using the Authority's processes to file charges against the Union or to file such charges themselves. Moreover, a union's ability to punish a steward for resorting to the Authority could reasonably be seen to indicate that the union would be even less hesitant to impose discipline on rank-and-file members for filing such charges. See Local 212, International Union, United Automobile Workers, 257 NLRB 637 (1981). In view of the importance of the policy favoring unfettered employee access to the Authority, requiring the Respondent in the circumstances of this case to reinstate the steward is necessary to enforce that policy, even at the risk of some interference with the Union's right to select its own stewards.
Accordingly, we shall order the Respondent to offer Crawford reinstatement to her former position as steward. The Union's assertion that Crawford has resigned from the Union and therefore is not eligible to be a steward is a matter for the compliance stage of this proceeding.(5)
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, American Federation of Government Employees, Local 1857 AFL-CIO, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its members in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute by removing, or upholding the removal, of Mary E. Crawford or any other member, from the position of Union steward for causing other employees to file unfair labor practice charges against the American Federation of Government Employees, Local 1857, AFL-CIO.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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) Require and direct its Executive Board Committee to rescind its decision to remove Mary E. Crawford as a union steward because she caused an employee to file an unfair labor practice charge against the American Federation of Government Employees, Local 1857, AFL-CIO.
(b) Offer Mary E. Crawford reinstatement to her former position as Union steward.
(c) Post at the business office of the American Federation of Government Employees, Local 1857, AFL-CIO, and in normal meeting places, including all places where notices to members of and unit employees exclusively represented by the American Federation of Government Employees, Local 1857, AFL-CIO 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 all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.
(d) Submit signed copies of said Notice to the Sacramento Air Logistics Center, McClellan Air Force Base, Sacramento, California, for posting in conspicuous places where members of American Federation of Government Employees, Local 1857, AFL-CIO are located, where they shall be maintained for 60 consecutive days from the date of posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the remaining allegations of the complaint are dismissed.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce our members in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute by removing, or upholding the removal, of Mary E. Crawford or any other member, from the position of Union steward for causing other employees to file unfair labor practice charges against the American Federation of Government Employees, Local 1857, AFL-CIO.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL require and direct our Executive Board Committee to rescind its decision to remove Mary E. Crawford as a union steward because she caused an employee to file an unfair labor practice charge against the American Federation of Government Employees, Local 1857, AFL-CIO.
WE WILL offer Mary E. Crawford reinstatement to her former position as Union steward.
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.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.
(If blank, the decision does not have footnotes.)
1. Although the Judge referred to July 15, 1990, as the date on which the Executive Board's action was communicated to Crawford, we conclude that this was an inadvertent error. In this regard, we note that the complaint alleges June 15 as the operative date, based on the letter of notification dated June 15, 1990. General Counsel's Exh. 13(a). In any event, this error has no material effect on the Judge's decision.
2. We note that the Respondent filed no exceptions to the Judge's finding that the basis for Charge No. 5 was that Crawford had caused another employee to file an unfair labor practice charge against the Union.
3. In its exceptions the Respondent asserts that a statement by the Judge after Bogardt testified "caused the Union to waive its final witness" who "would have reinforced Ms. Bogardt's unrefuted testimony." Respondent's Exceptions at 5. Upon consideration of the record, we have concluded that the Judge did not mislead the Respondent with regard to his perception of Bogardt's testimony. In response to a suggestion from counsel for the Respondent that it might be advisable to present the testimony of another Executive Board member, the Judge responded: "Well, I don't have to have every member of the [Executive Board] committee. I mean if she speaks for how the committee would act, or how she would act, we don't need every single member of the committee here." Transcript at 64. As we have found above, any additional testimony from Executive Board members in corroboration of Bogardt's testimony would have been irrelevant, given the Judge's conclusion that the charges were viewed as a package. In any event, there is nothing in the Judge's comments to indicate that he viewed Bogardt as speaking for the entire Executive Board. Significantly, the Judge made no ruling regarding the Respondent's ability to present additional witnesses, and the Respondent made no objections on the record to the Judge's comments.
4. See also, American Federation of Government Employees, Local 1738, AFL-CIO, 19 FLRA 520 (1985), reversed on remand on other grounds, 29 FLRA 178 (1987) (Authority ordered reinstatement of stew