46:0904(81)CO - - AFGE Local 1857 (Sacramento Air Logistics Center, North Highland, CA) and Eloise F. Holdahl - - 1992 FLRAdec CO - - v46 p904



[ v46 p904 ]
46:0904(81)CO
The decision of the Authority follows:


46 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857, AFL-CIO

(SACRAMENTO AIR LOGISTICS CENTER

NORTH HIGHLAND, CALIFORNIA)

(Respondent/Union)

and

ELOISE F. HOLDAHL

(Charging Party/Individual)

9-CO-10021

DECISION AND ORDER

December 9, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleges that the Respondent failed and refused to comply with its obligations under section 7114(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to represent the Charging Party in connection with a proposed disciplinary action because she was not a member of the Respondent. By this conduct it is alleged that the Respondent violated section 7116(b)(1) and (8) of the Statute.

For the reasons below, we find that the Respondent did not violate the Statute and we will dismiss the complaint.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the certified exclusive representative of employees in a nationwide consolidated unit of the Air Force Logistics Command, including employees at the Sacramento Air Logistics Center, McClellan Air Force Base, Sacramento California. The Respondent, AFGE Local 1857, AFL-CIO, is AFGE's agent representing unit employees at the Sacramento Air Logistics Center. The Charging Party, Eloise F. Holdahl, is an employee in the unit represented by the Respondent at the Center.

AFGE and the Air Force Logistics Command are parties to a master labor agreement (MLA) covering employees at the Sacramento Air Logistics Center. Article 5 of the MLA sets forth the "criteria and comprehensive procedures by which the Employer shall impose discipline upon employees of the bargaining unit." Stipulation, paragraph 8 and Exhibit 2. Disciplinary action is defined in the MLA as "oral admonishment, written reprimands, suspensions, and removals." Exhibit 2, Article 5, section 5.01(a). Article 5, section 5.04, requires that notices of proposed actions "be given to employees in duplicate so that they may give one copy to their representative or the Union if they desire." Exhibit 2, Article 5, section 5.04(a). That provision also requires that certain information be contained in the notices. Article 5, section 5.09 provides that "proposed letters of reprimand, suspension, or removal are excluded from the Negotiated Grievance Procedure." Exhibit 2, Article 5, section 5.09.

On June 28, 1991, the Charging Party received a Notice of Proposed Suspension. The Notice informed the Charging Party of her right to file an answer to the proposed action and provided, among other things, that she "'may be assisted by a representative of [her] choosing when preparing or presenting [her] reply . . . .'" Stipulation, paragraph 10 and Exhibit 3.

After receiving the Notice of Proposed Suspension, in accordance with the procedure followed at the Sacramento Air Logistics Center, the Charging Party asked to meet with a steward through her foreman. She requested and received an extension of time to file her written response. On July 24, 1991, the Charging Party met with the Respondent's steward, Gary Freeman, and requested that the Respondent represent her in the proposed suspension. On the same date, Freeman informed the Charging Party that the Respondent would not represent her because she was not a member of the Respondent. The Respondent has continued to refuse to represent her on that basis. Ultimately, the Charging Party was suspended for 3 days.

Air Force Regulation 40-750, which applies to all Air Force employees, provides, among other things, that employees are entitled to a representative of their choosing to assist in replying to proposed disciplinary actions.

III. Positions of the Parties

A. Respondent

The Respondent maintains that it does not have a duty to represent unit employees who are not its members in matters where it is not the statutory exclusive representative. The Respondent argues that where, as here, representation is sought by such an employee in a proposed disciplinary action, the Respondent has no duty of fair representation because both the governing Air Force regulation and the MLA "make it plain that an employee faced with a proposed disciplinary action is entitled to a representative of his or her choice and it need not be the Union." Respondent's Brief at 3. The Respondent contends that the duty of fair representation "attaches where the union is acting as the exclusive representative, but where the union is not acting as the exclusive representative, no duty of fair representation applies." Id. at 3, citing Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico, 36 FLRA 776, 788 (1990) (Antilles).

The Respondent distinguishes the situation in this case from Antilles, which held that the refusal to represent a nonmember was an unfair labor practice. The Respondent points out that the union involved in that case had negotiated the right to administer an insurance plan, and that unit employees had no choice but to utilize the union's services if they wished to participate in the plan. The Respondent argues that in this case the Charging Party was not required to utilize the services of the Respondent if she wished representation in connection with her proposed suspension, but rather was entitled to a representative of her choice.

The Respondent also argues that an exclusive representative cannot assume a duty of fair representation as a result of negotiating provisions of a collective bargaining agreement. The Respondent argues that the duty of fair representation is grounded in the Statute and arises by operation of law, and, therefore, cannot be imposed solely as a contractual obligation. The Union states further that

[i]n any event, the Union here never undertook to represent [the Charging Party] and the mere inclusion in the Master Labor Agreement of provisions on proposed disciplinary actions and official time does not demonstrate a conscious decision on the part of the Union to assume representation of all bargaining unit employees on all proposed disciplinary actions.

Respondent's Brief at 6-7.

B. General Counsel

The General Counsel argues that the statutory duty to represent all unit employees attaches to the proposal stage of a disciplinary proceeding, "notwithstanding the fact that the disciplinary procedure is governed, in part, by statute and regulation." General Counsel's Brief at 6. The basis for this argument is the General counsel's assertion that

such representation is an integral aspect of the union's status as exclusive representative in which it undertakes to represent employees in the bargaining unit in all matters vis-a-vis the employer in which the employee is without recourse to third party review.

Id.

The General Counsel discusses and distinguishes this case from Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908 (1987) (Fort Bragg), and Antilles, as well as National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU), which reversed National Treasury Employees Union and National Treasury Employees Union Chapter 121, 16 FLRA 717 (1984).

In Fort Bragg and Antilles, the Authority stated that the duty of fair representation runs only to matters grounded in the union's authority to act as exclusive representative. The General Counsel argues that neither case addresses the issue of representation during the proposal stage of a disciplinary proceeding and that, therefore, neither case precludes the General Counsel's theory of violation here. Thus, the General Counsel argues that although employees have a statutory right to reply to proposed disciplinary actions and to be represented by counsel of their choice,

because the proposal proceeding occurs at the employer and because there is no third party review of that proceeding until after the final decision issues, the statutory guarantees regarding the proposal proceeding do not preclude the finding that the union has a duty of fair representation relative to that proceeding.

General Counsel's Brief at 9-10.

The General Counsel distinguishes the proceeding involved in this case from NTEU, which involved a union's representation of employees during Merit Systems Protection Board proceedings, and Fort Bragg, which involved an optional lawsuit. The distinction, according to the General Counsel, is that although employees have the right to a representative of their own choosing in all three situations, the recourse for a failure by management to comply with procedural rights during the proposal stage would come only after the final decision. The General Counsel asserts that a union has the duty to represent employees in the proposed disciplinary proceeding because protection of employees from arbitrary disciplinary actions "is at the heart of the union's role as exclusive representative." Id. at 10.

Acknowledging that there is no comparable disciplinary procedure in the private sector, the General Counsel analogizes the union's role during the proposal stage of a disciplinary action to a private sector union's investigation of a potential grievance, which the union cannot decline to investigate merely because the possible grievant is not a member of the union.

The General Counsel also notes that the Authority has recognized a union's status as exclusive representative in relation to disciplinary proceedings by finding that a union has the right to obtain information under section 7114(b)(4) of the Statute in order to represent employees during the proposal stage of a disciplinary proceeding. In addition, the General Counsel argues, based on Department of Housing and Urban Development, San Francisco, California, 40 FLRA 1116 (1991), (HUD, San Francisco), that a union has the right to information even where it has not been selected by an employee as his or her representative during the proposal stage. This, the General Counsel asserts, is because of the union's status as exclusive representative. Also in this regard, the General Counsel contends that under Authority precedent, "the union has a right to be present when an employee receives the final disciplinary decision because the union has been exercising its statutory right as exclusive representative to represent the employee during the proposal stage of the proceeding." General Counsel's Brief at 12 (emphasis omitted).

As an alternative to the argument that the Respondent has a statutory duty to represent nonmembers in this case, the General Counsel asserts that such a duty has been imposed by provisions of the MLA. As the basis for this position, the General Counsel refers to Article 5 of the MLA, which contains such provisions as those concerning notice of a proposed disciplinary action. In addition, the General Counsel points out that Article 4, section 4.06(16) provides for official time for the Union to assist employees when designated as their representative in preparing a response to a proposed disciplinary action. The General Counsel argues that these negotiated provisions are more specific than the statutory and regulatory provisions governing proposed disciplinary actions.

Accordingly, the General Counsel submits that "it is only through the collective bargaining agreement that the requirements of law or regulation are effectuated relative to employees in Respondent's bargaining unit." Id. at 16. Thus, it is argued, the Respondent has obtained benefits through collective bargaining for itself and all unit employees regarding the proposal process, and "[c]onsequently, under the Antilles analysis, the statutory duty of fair representation applies to Respondent's representation of employees during such proceedings." Id.

IV. Analysis and Conclusions

A. Scope of the Duty of Fair Representation

Under section 7114(a)(1) of the Statute,(*) the duty of fair representation owed by an exclusive representative to all unit employees regardless of membership in the organization is grounded in the union's authority to act as exclusive representative. Fort Bragg, 28 FLRA at 918. This approach parallels the formulation of the duty in the private sector. As the court stated in NTEU, "Congress adopted for government employee unions the private sector duty of fair representation." 800 F.2d at 1171. The result is that "a union with an exclusive power cannot use that power coercively or contrary to the interests of an employee who has no representative other than the union." American Federation of Government Employees v. FLRA, 812 F.2d 1326, 1328 (10th Cir. 1987) (AFGE v. FLRA). On the other hand,

[i]f . . . an employee has the right to chose [sic] a representative other than the union, so that the union does not have an exclusive power that can be used contrary to the interests of the employee, there is no basis for requiring the union to furnish its services. In [that] instance, the employee's interests are protected by the availability of, and the right to choose, the representative services of another party.

Id. at 1328.

The Authority adopted this standard in Fort Bragg, stating that a labor organization's responsibilities under section 7114(a)(1) will be analyzed "in the context of whether or not the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative." Fort Bragg, 28 FLRA at 918. At the same time, the Authority held that it would not extend those statutory obligations "to situations where the union is not acting as the exclusive representative[.]" Id.

The standard was further developed by the Authority in Antilles, which reaffirmed that the duty to represent employees "applies only to activities undertaken by a labor union as exclusive representative." 36 FLRA at 788. There, the exclusive representative charged nonmembers a fee for administering insurance plans for dental/optical benefits. The union had negotiated certain aspects of the plans, as well as the exclusive right to administer the plans for unit employees. The Authority found that the union's activities concerning the plans were undertaken in its capacity as exclusive representative. Accordingly, the union was obligated to administer the plans "without regard to labor organization membership" under section 7114(a)(1) of the Statute. The Authority stressed, however, that

whether unit employees would have been entitled to dental/optical benefits in the absence of [the negotiated agreement] is irrelevant, in our view because here, the Union negotiated not only the contents of the dental/optical plan intended to cover unit employees but also the authority to administer the negotiated dental/optical plan.

Antilles, 36 FLRA at 791. The Authority distinguished the case before it from NTEU and Fort Bragg. The Authority noted that in Fort Bragg the union's right to represent members was not dependent on its collective bargaining relationship with the agency, and the members' entitlement to the benefit involved in that case did not arise solely from a collective bargaining agreement. The Authority also stated that, unlike the situation in NTEU, the statute entitling employees to the benefits at issue in Antilles did not specify the particular benefits or the manner in which they were to be provided.

B. Application of the Standard in this Case

1. Respondent Had No Statutory Duty to Represent Nonmembers in Proposed Disciplinary Actions

Based on the precedent set forth above, the resolution of whether there is a statutory duty in this case depends on whether the Respondent is the exclusive bargaining representative of unit employees with respect to proposed disciplinary actions. The Respondent argues that because "an employee faced with a proposed disciplinary action is entitled to a representative of his or her choice and it need not be the Union, . . . it follows that the Union was not [the Charging Party's] exclusive representative with respect to this issue and thus owed no duty of fair representation to her." Respondent's Brief at 3. We agree, and find that the Respondent had no statutory duty to represent the Charging Party in this case.

As the Authority clearly stated in Antilles, the duty to represent employees "applies only to activities undertaken by a labor union as exclusive representative." 36 FLRA at 788. Thus, a duty of fair representation does not arise in all circumstances from a union's status as the exclusive representative of a bargaining unit; rather, it is necessary to determine whether the union is the exclusive representative of a given employee in the particular circumstances of a given case. The General Counsel's argument that a union must represent a unit employee in a situation where the employee has the right to choose a representative other than the union cannot be reconciled with that principle. As the court stated in AFGE Local 96 v. FLRA, which involved a statutory appeal procedure, if an employee has the right to choose a representative other than the union, "there is no basis for requiring the union to furnish its services." 812 F.2d at 1328.

We are not persuaded by the General Counsel's arguments that the Union was obligated to represent the employee in this case, in view of the fact that the employee is entitled, by regulation, to a representative of her choice in the proposal stage of a disciplinary proceeding. Therefore, the Respondent was not her exclusive representative in that matter. Under Fort Bragg and Antilles, it is irrelevant that the proposal proceeding occurs at the premises of the Agency and that there is no third party review of the proceeding until after the final decision issues, as argued by the General Counsel. Similarly, the General Counsel's argument that the Respondent has a duty to represent employees in proposed disciplinary proceedings because protecting employees from arbitrary disciplinary actions "is at the heart of the union's role as exclusive representative[,]" General Counsel's Brief at 10, fails to overcome the impediment that the Respondent was not acting as an exclusive representative in this particular situation.

We also disagree with the General Counsel's argument that because a union has the right to information under section 7114(b)(4) of the Statute, even where it has not been selected as a representative by an employee during the proposal stage, it should also be required to represent all bargaining unit members at that stage. The section 7114(b)(4) duty of an agency to provide information is broad, and "must be evaluated in the context of the full range of union responsibilities . . . ." HUD, San Francisco, 40 FLRA at 1121, quoting American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (emphasis in original). The Authority added that a union "cannot fulfill its representative obligation if it lacks information necessary to assess its representational responsibilities." HUD, San Francisco, 40 FLRA at 1122. Thus, a union has a right to obtain information that is necessary for it to fulfill its representational functions to the entire bargaining unit. On occasion, that need will require the furnishing of information regarding matters in which the union does not have a direct representational role. See id. at 1121-22. In contrast, as we have discussed above, in certain defined circumstances, the section 7114(a)(1) duty of fair representation has been defined more narrowly and is dependent not on the needs of the unit as a whole, but on the options available to the employee seeking the union's assistance.

Finally, the General Counsel argues that because a union has the right to be present at a final action in a disciplinary proceeding after the employee has designated it as his representative, it should follow that the union has a duty to represent all employees in such proceedings. This argument ignores the fact that the union has such a right only because an employee has requested its assistance. As the General Counsel notes in making this argument, the Authority found that excluding the union in such cases was an unfair labor practice "because the agency bypassed the union when it was acting as the collective bargaining representative of a unit employee." General Counsel's Brief at 13, quoting Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 43 FLRA 736, 745 (1991) (emphasis added). A statutory obligation to represent the entire unit does not arise merely because a union is accorded certain rights when it decides to assume a representational role.

In view of the foregoing, we conclude that the Respondent had no statutory duty to represent the Charging Party in the circumstances of this case.

2. The MLA Does Not Give Rise to a Duty to Represent Nonmembers in Proposed Disciplinary Actions

The General Counsel argues in the alternative that the Respondent has a duty to represent nonmembers in proposed disciplinary actions based on provisions contained in the MLA, which the Respondent negotiated on behalf of all unit employees as their exclusive representative. We do not agree.

In Antilles, the union was obligated to represent all employees without discrimination in its administration of an insurance plan for dental/optical benefits because "the Union clearly obtained its authority over administration of the dental/optical plans through collective bargaining, those plans are provided only in the collective bargaining agreement, and the plans