53:0835(69)CO - - AFGE Local 2419 and James J. Powers - - 1997 FLRAdec CO - - v53 p835
[ v53 p835 ]
The decision of the Authority follows:
53 FLRA No. 69
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
JAMES J. POWERS
DECISION AND ORDER
November 17, 1997
Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by Counsel for the General Counsel (General Counsel). The Respondent (Local 2419) filed an Opposition to the General Counsel's Exceptions, and a Cross-Exception to the Judge's decision.
The complaint alleges that the Respondent violated sections 7102, 7116(b)(1),(8), and (c) of the Federal Service Labor-Management Relations Statute (Statute) by expelling the Charging Party from union membership. The Judge found, over the objection of Local 2419, that the Authority had jurisdiction over this case. However, the Judge went on to conclude that Local 2419 did not violate the Statute as alleged, and recommended that the complaint be dismissed.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision.
II. Background and Judge's Decision
A. The Facts
The facts, set forth in the Judge's decision, are briefly summarized herein. Local 2419 is the exclusive representative of a unit of employees at the National Institute of Health. James J. Powers was both a member of and officer (Treasurer) in Local 2419.
On March 9, 1994, Powers and approximately 25 other bargaining unit employees attended a meeting in the maintenance shop to discuss the dissolution of Local 2419. During the meeting, a number of employees expressed their dissatisfaction with Local 2419. Powers was one of the employees who spoke against the union. Powers indicated that he favored getting rid of Local 2419, expressed the view that Local 2419 had its own agenda, declared that Local 2419 did not act to benefit the employees, and stated that he would favor another union over Local 2419.(1)
Also at this meeting a paper was circulated wherein employees could sign their name in the "yes" or "no" column indicating their view on keeping Local 2419. Powers, along with the majority of employees in attendance, signed in the "no" column.(2)
Two weeks after the meeting, Powers was approached by the President of Local 2419, who requested that Powers remove his signature from the paper circulated at the March 9 meeting and sign a survey that the President had prepared disclaiming the March 9 paper. Powers refused to either remove his signature from the March 9 paper or sign the Local President's survey. On March 23, 1994, Powers resigned the office of Treasurer of Local 2419.
On May 24, 1994, Powers was advised that members of Local 2419 had brought charges against him for his conduct at the March 9, 1994 meeting. Powers was charged with conduct detrimental or inimical to the best interest of AFGE. Article XVIII, Section 2 of the AFGE Constitution forbids:
Advocating, encouraging, or attempting to bring about a secession from the Federation of any local or of any member or group of members. Penalty for conviction under this sub-paragraph shall be expulsion.
A trial hearing was thereafter conducted. Powers did not respond to or dispute the charges, testify, or otherwise participate in the trial. Subsequently, Powers was expelled from membership in Local 2419. Powers did not pursue internal union procedures to appeal his expulsion.
The General Counsel issued a ULP complaint alleging that Local 2419 violated section 7116(b)(1)(3) of the Statute by disciplining Powers for exercising his section 7102 rights.(4) The complaint also alleged that Local 2419's disciplinary action was inconsistent with the Statute and thus violative of sections 7116(c)(5) and 7116(b)(8)(6).
B. The Judge's Decision
The Judge rejected Local 2419's assertion that the Authority lacked jurisdiction over this case. In reaching this conclusion, the Judge relied on American Federation of Government Employees, AFL-CIO, 29 FLRA 1359 (1987) (AFGE, AFL-CIO), wherein the Authority found a union had violated the Statute when it disciplined an employee for filing unfair labor practice charges. In that decision, the Authority had ruled that "section 7116(c)...recognizes that a union's [disciplinary] actions must be consistent with the Statute." Id. at 1363.
The Judge noted that the question of whether the disciplinary procedures themselves were consistent with the Statute and thus accorded Powers fair and equal treatment and process under AFGE's constitution was within the jurisdiction of the Assistant Secretary of Labor Management Relations (ASLMR), citing section 7120 (7) and American Federation of Government Employees, Local 2000, 8 FLRA 718 (1982) (Local 2000).
2. The Section 7116(b)(1) Allegation
The Judge concluded that Powers' conduct at the March 9 meeting was not protected activity under section 7102 of the Statute. In reaching this conclusion, the Judge relied upon American Federation of Government Employees, Local 1920, 16 FLRA 464 (1984) (Local 1920), wherein the Authority adopted the decision of an ALJ that a steward of a labor organization was not engaged in protected activity when he talked with the agency's personnel office and with other employees about bringing in another union that would better represent the employees. On finding that the employee was not engaged in protected activity, the ALJ had recommended dismissal of the complaint alleging that the removal of the employee from his steward position violated section 7116(b)(1). 16 FLRA at 478.
3. The Section 7116(c) and 7116(b)(8) Allegation
The Judge also determined that Local 2419's actions in this case did not violate section 7116(c), and, in turn, section 7116(b)(8). The Judge noted that this case was factually distinguishable from other cases where the Authority had found a violation of section 7116(c) where a union had refused to admit an employee to membership, citing American Federation of Government Employees, Local 2344, 45 FLRA 1004 (1992) (Local 2344) and American Federation of Government Employees, Local 987, Warner Robins, Georgia, 46 FLRA 1048 (1992) (Warner Robins). In addition, the Judge noted that in Local 2344 the Authority had specifically recognized that even though section 7116(c) did not permit a union to deny membership to one "determined to destroy the union from the inside," once admitted to membership, an employee is subject to discipline for subsequent misconduct under section 7116(c). 45 FLRA at 1011.
The Judge thus concluded that Local 2419 had not violated the Statute and recommended that the complaint be dismissed.
III. Exceptions and Cross-Exception (8)
A. General Counsel's Exceptions
The General Counsel asserts that contrary to the Judge's conclusion, the expulsion from membership does "deny membership" to Powers on a basis not recognized in subsection (1) or (2) of section 7116(c). In the General Counsel's view, a union's right to deny membership is limited to the two instances set out in subsections (1) and (2) of section 7116(c).
Even if Local 2419's expulsion of Powers is permissible as discipline under section 7116(c), the General Counsel argues that the Judge erred by failing to consider Authority precedent specifically recognizing an employee's section 7102 right to criticize a local union, citing American Federation of Government Employees Local 3475 and HUD, New Orleans, LA, 45 FLRA 537 (1992) (Local 3475) and Overseas Education Association, 11 FLRA 377 (1983) (OEA). Moreover, in the General Counsel's view, the Judge's reliance on Local 1920 is misplaced for two reasons. First, Local 1920 was an adopted decision of an ALJ that the Authority has never applied. Second, unlike the case under consideration, where the employee was expelled from the union, the employee in Local 1920 was merely removed from his steward position. 16 FLRA at 478.
The General Counsel maintains that the Judge also failed to take into account the chilling effect that Local 2419's actions against Powers may have had on other employees. The General Counsel notes that concern for a "chilling effect on other employees" had previously prompted the Authority to order a union to reinstate as a steward an employee who had been disciplined in violation of section 7116(c) for assisting another employee in filing a ULP charge against the union. American Federation of Government Employees, Local 1857, 44 FLRA 959, 968 (1992) (Local 1857).
Finally, the General Counsel asserts that Local 2419's disciplinary action violated section 7116(b)(1) by retaliating against Powers for engaging in activity protected under section 7102.
B. Local 2419's Response to Exceptions and Cross-Exception
In response to the General Counsel's assertion that expulsion is impermissible, Local 2419 claims that the General Counsel misreads section 7116(c) of the Statute. In Local 2419's view, to "deny membership" means to refuse or prevent an employee from acquiring membership in the first instance. The proviso, on the other hand, permits a union to discipline an employee after membership has been granted. Local 2419 claims that this construction is supported by the Authority's decisions in Local 2344 and Warner Robins.
As for the General Counsel's claim that the Judge failed to consider controlling precedent, Local 2419 argues that the Authority cases relied upon by the General Counsel, recognizing an employee's 7102 right to criticize a local union, are distinguishable from the case at hand. In Local 3475, the employee was found to be exercising section 7102 rights when he questioned internal operations of the local and criticized officers of the local. 45 FLRA at 549. In OEA, the Authority concluded that an employee's distribution of an open letter, critical of the union for its refusal to assist him in processing a grievance was protected activity under section 7102. 11 FLRA at 378. The Respondent points out that Powers' activities went well beyond mere criticism of Local 2419, in that he advocated getting rid of the union. As a result, in Local 2419's view, the Judge properly relied upon Local 1920, wherein a union steward had been disciplined for seeking to bring in another union.
The Respondent counters the General Counsel's argument that the discipline of Powers will have a "chilling effect on other employees," by pointing out that this argument is predicated on the finding that Powers' actions were protected under section 7102. However, the Respondent argues that in meeting with other employees to discuss getting rid of Local 2419, Powers was neither forming, joining, nor assisting a labor organization, nor refraining from such activity. Since, in Local 2419's view, Powers' actions were a direct attack on the existence of the union and, thus, not protected under the Statute, there can be no chilling effect on section 7102 rights.
In response to the General Counsel's assertion that it retaliated against Powers, the Respondent reiterates that Powers' activities were not protected under section 7102 and notes the statutory right to discipline under section 7116(c). Therefore, the Respondent cannot be found to have violated the Statute.
Local 2419 cross-excepts to the Judge's conclusion that the Authority has jurisdiction to determine whether Local 2419's disciplinary action violated Powers' section 7102 rights. Additionally, Local 2419 asserts that the General Counsel's arguments concerning the nature of the discipline meted out (expulsion in this case) are also left to the jurisdiction of the ASLMR.
C. General Counsel's Response to Cross-Exception
The General Counsel notes that the Judge relied on specific Authority precedent (AFGE, AFL-CIO) in concluding that the Authority had jurisdiction over unfair labor practice complaints alleging that union disciplinary action violated section 7102 rights under the Statute. Unlike Local 2000, there was no allegation in this case that Local 2419 failed to comply with its constitution or bylaws. Therefore, this case is properly before the Authority rather than the ASLMR.
IV. Analysis and Conclusions
A. The Authority Has Jurisdiction in This Case
The complaint in this case charged Local 2419 with disciplining Powers for exercising his section 7102 rights. As a result, the Judge correctly concluded that the Authority properly exercises jurisdiction over the allegation that Local 2419 committed a ULP. The Judge's determination in this regard is in accord with the wording of the Statute and with Authority precedent.
The authority of a labor organization to enforce discipline is subject to the requirement that the discipline be "consistent with the provisions of this chapter." 5 U.S.C. 7116(c). When a complaint alleges that disciplinary action is inconsistent with a provision of Chapter 71, in this case section 7102, and no other provision of law is alleged to supersede the Statute, then the Authority has jurisdiction, pursuant to section 7116(b)(1) and (8), to resolve the matter.
The Authority has previously exercised jurisdiction where a labor organization disciplined an employee for engaging in activity alleged to be protected under section 7102. See AFGE, AFL-CIO, 29 FLRA at 1363. On the other hand, the Authority has specifically recognized that the ASLMR has "exclusive jurisdiction over Standards of Conduct, including safeguards against improper disciplinary actions" involving internal union matters. National Association of Government Employees, Local R5-66, 17 FLRA 796, 813 (1985) (Local R5-66). As a result, where a complaint wholly involved internal union affairs,(9) the Authority has declined to exercise jurisdiction. Local 2000, 17 FLRA at 738-39.
Here, the complaint alleges a violation of section 7102 rights and the Authority properly exercises jurisdiction.
B. Exclusion from Membership is Not Prohibited by Section 7116(c)
The General Counsel is incorrect in asserting that a union may not deny membership for any reason other than those stated in section 7116(c)(1) and (2). Such a construction is at odds with the wording of section 7116(c) and with Authority precedent.
The General Counsel's interpretation -- that a union may not deny membership for any reason other than the two noted in section 7116(c)(1) and (2) -- ignores the final proviso in the section: "[t]his subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws [.]" If, as the General Counsel argues, the only bases for denying membership are failing to meet occupational standards and failing to tender dues, the proviso, which permits a labor organization to "enforce discipline," would be rendered meaningless.(10) Discipline, in this context can only be interpreted to encompass denying membership or expulsion, as no other potential union disciplinary action (e.g. removal from a steward position) is even remotely threatened by the limitations on denying membership established in the subsection. Indeed, the proviso rebuts the very argument that the General Counsel makes in this case. Thus, a union can enforce discipline that denies membership for reasons unrelated to occupational standards and dues.
Moreover, the Authority has previously affirmed a Judge's decision recognizing "that a labor organization may impose discipline, including expulsion, for reasons other than the failure to tender dues, when internal affairs of the union plainly are involved." Local R5-66, 17 FLRA at 813 (emphasis supplied). See also Warner Robbins, 46 FLRA 1048; Local 2344, 45 FLRA at 1011.(11)
C. The Relationship between an Employee's Protected Activity and a Union's Right to Discipline
At issue in this case is the question of when a union may discipline an employee, pursuant to section 7116(c), for words or actions that are asserted to be both protected and potentially detrimental to an exclusive representative's status. Given the General Counsel's contention that the Judge improperly relied on certain Authority precedent addressing this issue, and because this case pits important individual rights against significant union institutional interests, we take this opportunity to review how the Statute deals with an employee's right to engage in protected activity vis-a-vis a union's right to enforce discipline against its members.
In examining this question, we begin our analysis with the wording of the Statute. Thereafter, we examine comparable provisions of the National Labor Relations Act (NLRA) similarly assuring employees the right to engage in protected activity and unions the right to discipline. After considering how these provisions of the NLRA have been interpreted, we examine how similar provisions of the Statute have been construed by the Authority. We then briefly review the interrelationship under the Statute between employee protected activity, on the one hand, and the union right to enforce discipline, on the other. Finally, we consider whether the union's disciplinary action in this case violated the Statute.
1. Protected Activity and a Union's Right to Discipline
a. Statutory Provisions
(1) The Statute
Various provisions in the Statute recognize an employee's right to engage in certain activities and assure that employees will be protected in this regard. Specifically, section 7102 of the Statute recognizes an employee's "right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right." Additionally, the Statute prohibits both agencies and unions from interfering with this right, via sections 7116(a)(1) and (b)(1), respectively.
As discussed in section B., supra, the Statute also recognizes the right of a labor organization to enforce discipline. However, pursuant to section 7116(c), this right must be exercised consistently with other provisions of the Statute.
(2) The NLRA
Provisions in the NLRA, securing an employee's right to engage in protected activity and to be free from restraint in this respect, mirror analogous provisions in the Statute. Specifically, the NLRA's section 7 employee rights to" form, join, or assist labor organizations . . . and [to] refrain from any or all of such activities" parallel similar rights in section 7102. Section 8(b)(1) of the NLRA, which bans restraint or coercion of employees exercising section 7 rights, is analogous to a similar prohibition in section 7116(b)(1) of the Statute.
Both laws also grant a union the right to enforce discipline against its members. The NLRA acknowledges this right via the proviso to section 8(b)(1) which recognizes "the right of a labor organization to prescribe its own rules with respect to the acquisition and retention of membership." As noted above, the Statute confirms this prerogative through section 7116(c)'s notation that a labor organization can enforce discipline.
Given the similarity between the relevant provisions in the Statute and the NLRA, we briefly review how both laws have been interpreted. Because the NLRA predates the Statute, and its relevant provisions on this issue have been subjected to notable judicial review, we began by examining precedent interpreting the NLRA.
(1) The NLRA
The United States Supreme Court and the National Labor Relations Board (Board) have long recognized a union's right, under certain circumstances, to discipline members who engage in activities that are asserted to be protected under section 7 of the NLRA. For example, in NLRB v. Allis-Chalmers Manufacturing. Co., 388 U.S. 175 (1967), the Court upheld the Board's determination that a union did not violate the NLRA by imposing fines on members for crossing picket lines. Recognizing that under a literal reading of the NLRA the fined employees were being restrained or coerced for exercising their right to refrain from protected activity, the Court nevertheless concluded that an incumbent union needs the power to "protect against erosion [of] its status . . . through reasonable discipline of members who violate rules and regulations governing membership." Id. at 187. Similarly, the Board has concluded that it was not unlawful for a union to expel members who filed a decertification petition, reasoning that such actions "attack the very existence of the union as an institution[.]" Tawas Tube Products, Inc., 151 NLRB 46, 48 (1965) (Tawas Tube).
On the other hand, a union's right to discipline for activity asserted to be protected is not boundless. For example, a union may not expel a member for filing an unfair labor practice charge with the Board. Local 138, International Union of Operating Engineers, (Charles S. Skura), 148 NLRB 679 (1964); NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, 391 U.S. 418 (1968). Nor may a union discipline for statements critical of union leadership if an employee is not attempting to destroy or threaten the existence of the union. Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d 1461, 1469 (6th Cir. 1992). Additionally, the Board has noted that even where disciplinary action is permissible, it must be limited to the employee's membership status and not affect the employee's job interests or employment relationship. Tawas Tube, 151 NLRB at 47; Boilermakers, 312 NLRB 218 (1993). Assuming no impairment of the employee's status as an employee, the Board does not pass judgment on the penalties a union imposes. NLRB v. Boeing Co., 412 U.S. 67, 76, 77 (1973), citing Local 283, UAW, 145 NLRB 1097, 1104 (1964).
(2) Authority Precedent
The Authority has also recognized that certain activities, asserted to be protected, can be the subject of union discipline under the Statute. In Local 1920, a union steward was found not to have been engaged in protected activity when he discussed bringing in another labor organization with the agency's personnel office and with other employees. As a result, the union had a right to enforce discipline against the individual. 16 FLRA at 477-78. In addition, the Authority has expressed its agreement with the NLRB that a labor organization is entitled to "expel a member for filing a decertification petition because it represents an attack on the very existence of the union." AFGE, AFL-CIO, 29 FLRA at 1361, citing Tawas Tube.
Like the NLRB, however, the Authority has acknowledged that a "[u]nion's ability to enforce discipline is not unlimited" and "a union may not threaten or discipline a member because the member has filed unfair labor practice charges." AFGE, AFL-CIO, 29 FLRA at 1363, citing National Association of Government Employees, R5-66, 17 FLRA 796 (1985) and Overseas Education Association, 15 FLRA 488 (1984); see also AFGE, Local 1857, 44 FLRA at 968 (union violated Statute by disciplining a steward who assisted another employee in filing a ULP charge against the union). Also in accord with the NLRB, the Authority has found a violation of the Statute where employee words or actions amounted to mere criticism of union officials and the discipline for engaging in protected activity affected the employee's status as an employee. Local 3475, 45 FLRA at 549-51 (union violated Statute by attempting to have agency discipline an employee for allegedly using non-work time to prepare and distribute materials critical of local officials); OEA, 11 FLRA at 378, 387 (union violated Statute by requesting agency to discipline an employee for distributing an open letter critical of the local president).
In sum, we find that the Authority, NLRB, and judicial precedent, interpreting an employee's right to engage in protected activity and a union's right to discipline, is harmonious and consistent.
2. Review of Principles Governing the Interrelationship Between Employee Protected Activity and Union Discipline
For clarification purposes, we articulate, in the context of this case, the principles that guide our interpretation of these provisions of the Statute. A union may discipline an employee when an employee's actions threaten or attack the union's existence as an institution. However, in accordance with previous Authority precedent: (1) a union may neither discipline an employee for merely filing unfair labor practice charges, nor (2) take actions against an employee that affect his or her status as an employee; additionally, (3) absent a threat to its continued existence, a union may not discipline an employee for mere criticism of its management or policies.
Having examined the arguments raised by the parties in this case, we see no reason to deviate from established precedent interpreting these provisions of the Statute. We emphasize, however, that in light of the inherent tension between these important individual and institutional statutory rights, future cases will be evaluated on their specific facts and the arguments presented by the parties.
3. Local 2419's Disciplinary Action In This Case
On consideration of the employee's actions in this case, we conclude that Local 2419's discipline did not violate the Statute. Powers attended a meeting of bargaining unit employees held for the purpose of discussing the dissolution of Local 2419. Powers publicly announced at the meeting that he favored getting rid of Local 2419, asserted that he would favor another union over Local 2419, and signed a paper reflecting his dissatisfaction with Local 2419. These actions went beyond mere criticism of Local 2419 or its officials and threatened Local 2419's existence as an institution. As a result, Local 2419 properly exercised its statutory right to discipline Powers in a manner that did not affect his status as an employee.
We recognize that Powers actions fell short of the filing of a decertification petition. However, we agree with the NLRB's determination "that there is no significant distinction between conduct directed toward decertifying a union and conduct directed toward replacing the incumbent union with another union; the difference being only one of form." Tri-Rivers Marine Engineers Union, 189 NLRB 838, 839 (1971).
Contrary to the General Counsel's arguments, we find no inconsistency between the Judge's determination in this case and prior Authority precedent. The OEA and Local 1920 cases involved unions attempting to have the agency discipline employees for mere criticism of the union and the discipline involved would have affected the individuals' employment status. The potential chilling effect on other employees, which served as a basis for the Authority's decision in AFGE, Local 1857, involved union discipline of an employee for filing ULP charges. None of these circumstances are present in the case before us. Finding that Local 2419's actions did not affect Power's status as an employee, we do not pass judgment on the penalty of expulsion imposed by Local 2419 in this case.
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2419, AFL-CIO
JAMES J. POWERS
Charging Party/ An Individual
|Case No. WA-CO-50021|
Mark D. Roth (On the Brief)
Counsel for the Respondent
Susan L. Kane
Thomas F. Bianco
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent (Union or AFGE, Local 2419) violated sections 7102, 7116(b)(1), 7116(b)(8), and 7116(c) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7102, 7116(a)(1), 7116(b)(8), and 7116(c), when it expelled the Charging Party, Mr. Powers, from membership on July 8, 1994 for conducting himself at a meeting on March 9, 1994, in a manner that violated Article XVIII, section 2(a) of the Union's National Constitution.
AFGE, Local 2419 contends that the Authority lacks jurisdiction over this case, as the matter involves internal union discipline under section 7120 of the Statute, and any complaint of violation of section 7120 should be filed with the Assistant Secretary of Labor. The Union claims that, assuming the Authority has jurisdiction to hear this matter, the Union's actions in disciplining its former Treasurer for advocating a secession from AFGE were well within the established parameters of labor law.
For the reasons set out below, a preponderance of the evidence does not establish the alleged violations.
A hearing was held in Washington, D.C. AFGE, Local 2419 and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Union and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
On July 8, 1994, AFGE, Local 2419, the exclusive repre-sentative of a unit of employees at the National Institutes of Health, advised the Charging Party, bargaining unit employee James J. Powers, that he was expelled from Union membership for actions he took that violated Article XVIII, Section 2(a) of the National Constitution. Mr. Powers was advised that such action was taken as a result of a trial committee recommendation and a vote of the membership to uphold that recommendation.
At all times material herein, Mr. Powers was a member of AFGE, Local 2419 until his July 8, 1994 expulsion. Mr. Powers had also been Treasurer of AFGE, Local 2419 from about 1993 until he resigned his office on or about March 23, 1994.
The AFGE National Constitution, referenced by the Union, provides in Article XVIII, Section 2:
Charges may be preferred for conduct detrimental or inimical to the best interests of the Federation. Offenses against this Federation include the following:
(a) Advocating, encouraging or attempting to bring about a secession from the Federation of any local or of any member or group of members. Penalty for conviction under this sub-paragraph shall be expulsion.
The Union had previously furnished Mr. Powers a copy of the relevant sections of the Constitution, advised him on May 24, 1994 that members of the Local had brought charges against him for conducting himself in a manner that violated Section 2(a) at a meeting on or about March 9, 1994, and that a trial would be held by the Union in his case on July 5, 1994.
AFGE, Local 2419 held a trial committee hearing as scheduled on July 5, 1994, at which evidence supporting the charges under Article XVIII, Section 2 was submitted. Mr. Powers did not testify or otherwise participate in the Union trial and never responded to or disputed, in either a written or oral manner, the charges against him. He did not pursue internal Union procedures to appeal his expulsion from the Union.
The complaint in this case also relates Mr. Powers' expulsion from the Union to his activities at a meeting in early March 1994. Paragraph 9 of the Complaint alleges:
On or about March 1, 1994, the Charging Party attended a meeting where he and other bargaining unit employees signed a paper indicating whether they were satisfied with the Respondent and expressed their opinions concerning, among other things, their satisfaction with the representation they had received by the Respondent.
At the hearing in this case, Mr. Powers, on behalf of himself and the General Counsel, and Mr. Douglas Duane Welch, on behalf of the Respondent, gave firsthand testimony concerning Mr. Powers' actions at the meeting in question. Mr. Welch testified that he gave essentially the same testimony at the Union disciplinary hearing of Mr. Powers.
The record reflects that on or about March 9, 1994, bargaining unit employee Michael McClain, who was not a member of AFGE, Local 2419, conducted a meeting with other bargaining unit employees in the maintenance shop of the power plant. About 25 employees attended. McClain began the meeting by showing the employees a folder with a letter he had written. The letter read, in pertinent part, as follows:
I have observed in the plant that there is an abundance of conversation going on about the union representation that we are receiving, both good and bad. So I started wondering to myself what are the pros and cons of having the union at all. So what I am in the process of doing is to take a poll to see what the majority of DES feelings are.
On the attached page is a survey/vote being taken by myself to see what your feelings are. Please sign and date next to your personal opinion on keeping the union.
McClain also passed around a piece of paper with a "Yes" column written on the one half of the paper and a "No" column written on the other half of the paper. Mr. Powers and a majority of the other employees present signed the "No" column of the survey. Mr. McClain did not inform the employees that he intended to use the signatures in connection with a formal petition to decertify the Union.(*)
Some employees spoke in favor of the Union during the meeting, but most spoke against the Union. Some of the criticism of the Union was quite strong.
Mr. Welch, a bargaining unit employee who was a Union steward at the time of the meeting (and later became Union Treasurer when Mr. Powers resigned the position), testified that Mr. Powers spoke in favor of Mr. McClain's ideas and "went on to expound on the fact that he didn't think the [U]nion had the benefit of the men in mind. They had their own agenda and it may be better to get rid of the [U]nion, AFGE. He said that while unions were fine, he would lean more towards. . . sheetmetal, you know, boilermakers, another union instead of AFGE. . . . Mr. Powers was very vocal about the point that he thought it would be a wise decision to get rid of 2419 and get somebody else." (Tr.81)
Mr. Powers denied that he used the term "get rid of the Union." He testified that he signed the "No" side of Mr. McClain's form to indicate his displeasure with the Union, but did not encourage anyone else to sign the survey. Mr. Powers acknowledged that he spoke of his dissatisfaction with the direction the Union negotiations were going, and that he answered a question, "[W]hat [do] you do without . . . the [L]ocal or the [U]nion as it is?" Mr. Powers testified that his answer was, "[Y]ou can have another union come in. You can [have] personnel take care of you. . . . [T]here's a lot of things that can be done." (Tr. 112-13).
Based on my observation of the witnesses and their demeanor, the entire record, and the arguments of counsel concerning the credibility of the witnesses, I credit the testimony of Mr. Welch concerning Mr. Powers' actions at the March 9, 1994 meeting. Mr. McClain's cover letter also clearly indicated that he was taking a poll to see what the feelings of the majority were concerning "the pros and cons of having the union at all" and asked employees to "sign and date next to your personal opinion on keeping the union." Mr. Power's original and amended unfair labor practice charges also all state, "The subject of the meeting was to discuss dissolution of the AFGE Union within the bargaining unit." Therefore, I do not find, as urged by the General Counsel, that all Mr. Powers did at the March 1994 meeting was to express his dissatis-faction with the Union and sign a survey reflecting that opinion. (Tr. 12, General Counsel's brief at 9-10).
On or about March 23, 1994, Mr. Powers resigned his office as Treasurer of AFGE, Local 2419 of his own volition.
Approximately two or three weeks after the meeting, Richard A. Laubach, President, AFGE, Local 2419, asked Mr. Powers to remove his signature from McClain's survey and to sign a survey that he (Laubach) had prepared. Laubach's survey stated that the signatories effectively withdrew their signatures from McClain's survey. Laubach told Powers that it was unbecoming a Union officer to sign McClain's survey. He also told Powers that nothing would be done if he removed his signature from McClain's survey. Powers replied that he would not sign Laubach's survey. Laubach then said that he would do what he had to. Powers did not remove his signature from McClain's survey. The Union's disciplinary action against Mr. Powers, as set forth above, followed.
At least one other Union official, Mike Scafone, signed the "No" column of McClain's survey, but he also signed Mr. Laubach's survey on or about April 29, 1994. There is no evidence that Mr. Scafone spoke at the March 1994 meeting in the like manner of Mr. Powers or that he was disciplined by the Union.
Discussion and Conclusions
The issues for determination are (1) whether the Authority has jurisdiction over this case, (2) if so, whether the Union violated section 7116(b)(1) of the Statute by expelling
Mr. Powers from membership in the Union for exercising his rights under section 7102 of the Statute, and (3) whether the Union violated section 7116(c) and 7116(b)(8) of the Statute by expelling Mr. Powers from membership in the Union for reasons other than failure to meet reasonable occupational standards or to tender dues.
In American Federation of Government Employees, AFL-CIO, 29 FLRA 1359 (1987), the Authority stated:
We recognize that under section 7116(c) of the Statute, a labor organization may discipline its members pursuant to procedures contained in its constitution or bylaws. In most cases, that discipline is not and should not be reviewed by the Authority. Contrary to the Union's position, however, the Union's ability to enforce discipline is not unlimited. Indeed, section 7116(c) itself recognizes that a union's actions must be consistent with the Statute. . . .
. . . .
. . . To threaten to discipline a member for the exercise of a right the member has under section 7102 is inconsistent with section 7102 and, therefore, beyond the legitimate interests of a union to regulate its internal affairs.
Therefore, contrary to the Union's position, I conclude that the Authority has jurisdiction to determine whether the Union's disciplinary action against Mr. Powers interfered with his
protected rights under section 7102 and violated section 7116(b)(1) as alleged.
Alleged Section 7116(b)(1) Violation
Section 7102 of the Statute guarantees to each employee of the Federal Government the right, freely and without fear of penalty or reprisal, to form, join, or assist a labor organization, or to refrain from any such activity, and to be protected in the exercise of such right. A labor organization's interference with these rights is an unfair labor practice under section 7116(b)(1).
The record reflects that Mr. Powers, then a Treasurer of AFGE, Local 2419, at an employee meeting on March 9, 1994, signed a paper which could reasonably be interpreted as a "No" vote on "keeping the union" and "was very vocal about the point that . . . it would be a wise decision to get rid of 2419 and get somebody else." I conclude that Mr. Powers' conduct in this respect was not protected activity and the Union had reasonable grounds to bring a disciplinary enforcement action against him. As noted above, Article XVIII, Section 2 of the Union's Constitution provides:
Charges may be preferred for conduct detrimental or inimical to the best interests of the Federation. Offenses against this Federation include the following:
(a) Advocating, encouraging or attempting to bring about a secession from the Federation of any local or of any member or group of members. Penalty for conviction under this sub-paragraph shall be expulsion.
In American Federation of Government Employees, Local 1920, AFL-CIO, 16 FLRA 464, 477 (1984)(AFGE,Local 1920), the Authority adopted the decision of the Administrative Law Judge, holding that a union steward was not engaged in protected activity when he "talked to two stewards . . . and attempted to sell them on the idea of bringing in the International Fire Fighters Union because it would represent them better than AFGE." The Authority agreed with the Judge that the union did not violate section 7116(b)(1) of the Statute when it removed the union steward from his position where a preponderance of the evidence established that the union, even in the absence of the steward's protected activity of giving testimony at an Authority hearing, would have removed the employee because of his efforts to promote acceptance of a rival union. See also American Federation of Government Employees, Local 987, 4 A/SLMR 510 (1974) (Union's efforts to have member discontinue distributing dues revocation cards did not violate the analogous section, section 19(b)(1), of Executive Order 11491, which governed labor relations in the Federal sector before the enactment of the Statute. The Assistant Secretary stated, "In my view, a labor organization is entitled to protect itself from those acts of its members which threaten its continued existence." (footnote omitted))
Since the evidence does not show that the Union's disciplinary action was initiated because Mr. Powers engaged in protected activity, the Union's use of procedures under its constitution and bylaws to determine whether Mr. Powers should be expelled did not violate the Statute. Whether the disciplinary procedures themselves were consistent with the Statute, as required by section 7116(c), and, therefore, whether Mr. Powers received "fair and equal treatment under the governing rules of the organization and . . . fair process in [the] disciplinary proceedings," as required by section 7120, are matters within the jurisdiction of the Assistant Secretary of Labor for Labor Management Relations under section 7120(d) of the Statute and are not subject to review here. See 5 U.S.C. § 7120(d); 29 C.F.R. Part 458.2 (1994); American Federation of Government Employees, Local 2000, AFL-CIO, 8 FLRA 718 (1982).
Alleged Violations of Sections 7116(c) and 7116(b)(8)
Section 7116(c) provides:
For the purpose of this chapter it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by such exclusive representative except for failure--
(1) to meet reasonable occupational standards uniformly required for admission, or
(2) to tender dues uniformly required as a condition of acquiring and retaining membership.
This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter.
The General Counsel contends that the Union, by expelling Mr. Powers from membership for his actions during the March 1994 meeting, violated 7116(c) by denying membership to Mr. Powers for reasons other than his failure to meet reasonable occupational standards or failure to tender dues.
The Authority has held that a union commits unfair labor practices by summarily denying a bargaining unit employee's application for membership in the union, when the union's reason for the denial was neither of the only two permissible grounds for such a denial under section 7116(c). American Federation of Government Employees, Local 2344, AFL-CIO, 45 FLRA 1004 (1992)(Local 2344), review denied, No. 92-1560 (D.C. Cir., November 3, 1994) (union violated section 7116(c) by refusing to admit to membership an employee who publicly vowed to destroy the union "from the inside"); American Federation of Government Employees, Local 987, Warner Robins, Georgia,46 FLRA 1048 (1992)(Warner Robins), enforced, 15 F.3d 1097 (1994)(union violated section 7116(c) by denying membership until employee's financial discrepancies were cleared up). The Authority recognized, however, that once an employee is admitted to membership, the employee is subject to discipline by the union for misconduct consistent with the requirements of section 7116(c). Local 2344, 45 FLRA at 1011; Warner Robins, 46 FLRA at 1056-57.
Mr. Powers was a member and the Treasurer of AFGE, Local 2419 at the time of his alleged misconduct. He did not file an application for union membership that was summarily denied in violation of section 7116(c). Rather, Mr. Powers was expelled from union membership pursuant to the Union's authority to enforce discipline as clearly permitted by the last sentence of section 7116(c).
It is concluded that a preponderance of the evidence does not establish that AFGE, Local 2419 violated sections 7102, 7116(b)(1), 7116(b)(8), and 7116(c) of the Statute, as alleged.
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, October 23, 1995
GARVIN LEE OLIVER
Administrative Law Judge
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. At the ULP hearing, Powers acknowledged that he signed the paper and spoke of his dissatisfaction with Local 2419, but denied that he used the phrase "get rid of the union." Transcript at 112-13. The Judge credited the testimony of others who attended the meeting and testified at the hearing that Powers had indeed stated that he favored getting rid of Local 2419. Judge's Decision at 5.
2. The list of signatures signed at this meeting were subsequently incorporated into a decertification petition filed by the employee who conducted the meeting.
3. Section 7116(b)(1) makes it a ULP "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter[.]"
4. Section 7102 provides, in pertinent part, that "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right."
5. Section 7116(c) permits a labor organization deny membership based on a failure "(1) to meet reasonable occupational standards uniformly required for admission, or (2) to tender dues uniformly required as a condition of acquiring and retaining membership." However, a proviso notes that "[t]his subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter."
6. Section 7116(b)(8) is a catchall provision making it a ULP "to otherwise fail or refuse to comply with any provision of this chapter."