53:1789(161)CO - - AFGE Local 1345, Fort Carson, CO and AFGE and Edward Vasquez - - 1998 FLRAdec CO - - v53 p1789



[ v53 p1789 ]
53:1789(161)CO
The decision of the Authority follows:


53 FLRA No. 161

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1345

FORT CARSON, COLORADO

(IN TRUSTEESHIP)

AND

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Respondents)

and

EDWARD VASQUEZ

(Charging Party)

DE-CO-40667

_____

DECISION AND ORDER

March 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondents(1) did not file an opposition to the exceptions.

The complaint alleges that the Respondents failed to comply with their duty under section 7114(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) to represent all employees without discrimination and without regard to labor organization membership, in violation of section 7116(b)(1) and (8) of the Statute, when they withdrew a grievance from arbitration because the grievant failed to pay dues and maintain his AFGE membership. The complaint further alleges that the Respondents committed an independent violation of section 7116(b)(1) by sending the grievant a letter indicating that the arbitration of his grievance would be terminated unless he paid all of his back dues.

The Judge found that the Respondents did not violate section 7116(b)(1) and (8) by withdrawing the grievance from arbitration.(2) For the reasons that follow, we deny the General Counsel's exceptions and dismiss the complaint regarding the alleged violation of section 7116(b)(1) and (8).

II. Background and Judge's Decision

The background is fully set out in the Judge's decision. As pertinent here, in March 1993, the Agency removed the grievant from his position for committing certain offenses. Although the grievant admitted the offenses for which he was removed, he contested whether removal was the appropriate penalty. The Local Union filed a grievance on his behalf and invoked arbitration. Because the grievant was no longer employed, his AFGE membership dues ceased to be paid through payroll deduction.

In January 1994, the National Union placed the Local Union in trusteeship, removed its officers, and appointed a National Vice-President (NVP) as trustee. The NVP returned the Local Union's Treasurer to office. The NVP believed it was AFGE policy to require members who paid their dues directly to the Union to pay dues for a year in advance, and directed the Treasurer to maintain that policy. The NVP also ordered that any communication from the Local Union's office be cleared by him.

The NVP assigned a National Representative (the Representative) to handle the arbitration regarding the grievant's removal. The grievant discussed his case with the NVP and the Representative in early 1994 and the grievant agreed to meet with the Representative again the day before the date on which the arbitration hearing was scheduled.

According to testimony credited by the Judge, the Treasurer phoned the grievant in early 1994, and told him that, pursuant to the NVP's instructions, he had to pay the full amount of the AFGE membership dues. See Judge's Decision at 3. The Treasurer, without the consent of the NVP, told the grievant that the arbitration would be canceled if his dues were not paid. On May 27, the Treasurer sent the grievant a letter stating that he had to remit his dues on an annual basis, and that $236 was due to preclude any potential termination of the arbitration case. The Treasurer testified that she sent the letter without the NVP's authorization and the NVP testified that he had nothing to do with, and was not aware of, the letter. See id. at 4.

A week or two before the scheduled arbitration hearing, the parties were unsuccessful in using mediation to settle the grievance. The Representative testified that at the mediation session, management discussed a videotape showing the grievant committing the offenses for which he was removed. See id. The Representative stated that the mediator shared with him observations about the case. The Representative also testified that, after the mediation, he viewed the videotape, which he had misplaced earlier, that substantiated the Agency's characterization of the offenses. See id. The Representative discussed his findings with the NVP, who left it to the Representative to decide whether to proceed to arbitration.

Shortly before the arbitration hearing date, the Representative decided not to pursue the case because he believed that the grievant's case had no merit and would not have been successful. The Representative also stated that the grievant, during their interviews, had appeared "cocky and not remorseful," thus detracting from his credibility as a witness. Id. The Representative also testified that the mediator's private comments to him were "a big consideration." Id. at 5. On June 13, the Representative informed the grievant of the decision not to proceed to the arbitration hearing, which was scheduled for the following day. The grievant then filed an unfair labor practice charge against the Respondents and the General Counsel issued a complaint alleging that the arbitration was canceled because the grievant failed to pay dues and maintain his AFGE membership.

The Judge applied the framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) and found that the Respondents did not violate section 7116(b)(1) and (8) of the Statute regarding the withdrawal of the grievance from arbitration. In particular, the Judge found that the General Counsel had not established a prima facie case that the Respondents violated their duty under section 7114(a)(1) of the Statute. Additionally, the Judge credited the Respondents' defense that the grievance was meritless, and concluded that the Respondents had not violated section 7116(b)(1) and (8) of the Statute.

III. General Counsel's Exceptions

The General Counsel does not specifically address whether the Authority should apply the Letterkenny framework in cases of alleged discrimination by a labor organization. According to the General Counsel, the Authority has not previously applied this framework in such cases, although it used a similar framework in earlier cases, including American Federation of Government Employees, Local 1920, AFL-CIO, 16 FLRA 464 (1984) (AFGE Local 1920). However, if the Letterkenny framework is applied, the General Counsel disagrees with the Judge's conclusion that the General Counsel failed to make a prima facie showing on the alleged violation of section 7116(b)(1) and (8).

The General Counsel also excepts to the Judge's failure to correct the record in two respects. Specifically, the General Counsel excepts to the Judge's failure to name the date on which the mediation session was held--May 31, 1994. According to the General Counsel, that date is important because it relates to a sequence of events, the timing of which establishes the Respondents' violation of the Statute. Secondly, the General Counsel asserts that the Judge erred in stating that the Agency had refused to give a copy of the videotape to the Respondents. According to the General Counsel, the Agency gave the Respondents a copy of the videotape, but declined to provide the Representative a second copy. The General Counsel asserts that the Judge erred in stating that the Agency had provided the Representative with another copy. The General Counsel contends that the Representative's claim that he reviewed the videotape was pretextual because he never substantiated that he reviewed the videotape. The General Counsel argues that the Representative's viewing of the videotape "could not have contributed to his decision to withdraw from arbitration." Exceptions at 12.(3) According to the General Counsel, the Judge's failure to correct the record in these two respects "obviously contributed to his faulty conclusion that the [Respondents] adequately explained the timing of its last-minute withdrawal from arbitration." Id. at 13.

Finally, the General Counsel excepts to the Judge's refusal to consider any evidence concerning the Respondents' dues payment policy and the grievant's payment of dues. According to the General Counsel, this information is important because the Respondents' change in policy occurred just before the scheduled arbitration and would have applied only to the grievant.

IV. Analysis and Conclusions

A. The "Letterkenny" Framework Applies in Cases of Alleged Discrimination by a Labor Organization

This case involves an allegation that the Respondents violated section 7114(a)(1) by failing to represent the employee without regard to his AFGE membership status, when they canceled his arbitration hearing. The Respondents defended their action on the ground that the action was not based on his lack of AFGE membership, but rather on the ground that the grievant's case had no merit and the grievant would not have been successful at arbitration.

The Judge applied the framework set forth in Letterkenny, which establishes a "two-step burden shifting framework" for resolving alleged discrimination or retaliation by a respondent against an employee for engaging in union-related protected activity. See Midder v. FLRA, No. 96-60371 (5th Cir. 1997), affirming Bureau of Engraving and Printing, Western Currency Facility, Fort Worth, Texas, 51 FLRA 1014 (1996) (Midder), slip op. at 5. Under the Letterkenny framework, the General Counsel must initially establish that the employee was engaged in protected activity and that the activity was a motivating factor in the treatment of the employee. Thereafter, a respondent may seek to establish an affirmative defense that there was a legitimate justification for its action and that the same actions would have been taken even in the absence of the protected activity. See Pension Benefit Guaranty Corporation, 52 FLRA 1390, 1400-01 (1997), petition for review filed, No. 97-1414 (D.C. Cir. June 27, 1997); Department of the Air Force, Warner Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602, 605 (1996); Federal Emergency Management Agency, 52 FLRA 486, 490 & n.2 (1996) (the Authority clarified the prima facie case that the General Counsel must establish); Letterkenny, 35 FLRA at 118.

The Letterkenny framework is consistent with the framework established in private sector labor law for addressing "dual motive" or "mixed motive" defenses.(4) See NLRB v. Transportation Management Corp., 462 U.S. 393, 395 (1983); Wright Line, 251 NLRB 1083, 1083-84, 1089 (1980) (Wright Line), enforced, 662 F.2d 889 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). The Letterkenny framework also is consistent with the framework applied in a Title VII case alleging discriminatory treatment. See U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 362 (1996), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Byrd v. Dalton, 1994 WL 734781 (E.E.O.C.) (1994).

The Authority has applied the Letterkenny framework in cases involving labor organization respondents. See American Federation of Government Employees, Local 1857, 44 FLRA 959 (1992) (the judge applied the Letterkenny framework to the facts of the case and the Authority adopted the judge's decision to apply Letterkenny, without explanation). See also AFGE Local 1920, 16 FLRA at 474-76 (the Authority applied the predecessor test for resolving dual motive cases, similar to and consistent with Letterkenny, that had been set forth in Internal Revenue Service, Washington, D.C., 6 FLRA 96, 99 (1981) (IRS)). The National Labor Relations Board (NLRB) also applies the same framework to cases against labor organizations that it applies to cases against employers. See Ashley, Hickham-Uhr Co., 210 NLRB 32 (1974); 1 The Developing Labor Law 79-80, (3d ed. 1992). See also International Longshoremen's Association, Local 20, AFL-CIO, 323 NLRB No. 190 (1997); Millwrights Local No. 1102, 322 NLRB 198, 203 (1996).

For the reasons discussed in Wright Line and IRS, application of a burden-shifting framework, such as that in Letterkenny, in cases of alleged union discrimination against employees is warranted. This framework allows consideration of legitimate motives in cases involving alleged union discrimination against employees. In our view, it is appropriate to apply a Letterkenny framework in this type of case to ensure: (1) fair and equitable treatment of unions and agencies in similar cases; and (2) the ability of a union to raise legitimate motives in its defense, if charged with discriminatory action by an employee. Cf. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) (the Court affirmed the NLRB's adoption of a burden-shifting framework for dual motive cases in which the NLRB stated that the test accommodates the legitimate competing interests inherent in dual motivation cases, while at the same time serving to effectuate the purposes and policies of the National Labor Relations Act).

For the reasons set forth above, we will continue to apply the Letterkenny framework to cases involving labor organization respondents.

B. The Letterkenny Framework Was Applied Properly in This Case

Applying the Letterkenny framework, the Judge concluded that the General Counsel did not establish a prima facie case. The Judge determined that although the grievant exercised "his right to refrain from assisting" the Local Union, the General Counsel did not establish that this activity was a motivating factor in the Respondents' treatment of the grievant. See Judge's Decision at 8. In arriving at this conclusion, the Judge considered the credibility of the witnesses and their testimony. The demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. Therefore, the Authority will not overrule a judge's credibility determinations unless a clear preponderance of all relevant evidence demonstrates that they were incorrect. See U.S. Department of Veterans Affairs, Medical Center, Northampton, Massachusetts, 51 FLRA 1520, 1520-21 (1996). The record has been examined and there is no basis to overrule the Judge's credibility determinations. Based on these determinations, we agree with the Judge that the General Counsel did not establish a prima facie case, and we find that the Judge properly determined that the Respondents had not violated the Statute as alleged.

The General Counsel also excepts on the ground that the Judge failed to correct the record to state the date of the mediation session and the source of the Representative's copy of the videotape. However, the General Counsel has not established how these corrections would affect the prima facie case. Specifically, the General Counsel has not demonstrated how information as to the exact date on which the mediation session was held is relevant to the establishment of a prima facie case. At the hearing, an Agency witness testified that the mediation session was held on May 31, 1994, (Tr. at 157), while the Respondents' Representative testified that it was held 1 week later, on June 6, 1994 (Tr. at 119, 134, 148). The General Counsel did not introduce any documentary evidence to substantiate the date of the mediation session. Using either date, the mediation session was held within 2 weeks of the scheduled arbitration. The General Counsel fails to demonstrate how the 1-week difference in dates is significant.

With respect to the source of the videotape, clarifying how the Representative obtained a copy of the videotape does not alter the fact that it showed the grievant committing the offenses for which he was removed. The tape was discussed at the mediation session. The Representative stated, without contradiction, that he reviewed the tape after the mediation session and that his review confirmed that the grievant committed the offenses. See Judge's Decision at 4. As the Judge stated, the General Counsel had the opportunity to cross-examine the Representative regarding the information he relied on to make his decision, including his review of the videotape, but did not do so. See id. at 8. The General Counsel has not demonstrated how the requested clarification would affect the prima facie case.

The General Counsel also excepts to the Judge's refusal to admit evidence concerning the Respondents' dues payment policy and the grievant's payment of dues. A review of the hearing transcript reveals testimony and exhibits regarding the dues payment policy and the grievant's payment of dues. See Tr. at 39-41, 44, 59, 103, 108; General Counsel's Exhibits 9, 10, 18, and 20. The Judge discussed the General Counsel's arguments about the dues payment policy and found:

I am not persuaded that [the NVP] devised the new dues payment policy to 'squeeze as much money as possible' from [the grievant]. The obvious risks of carrying through such a plot . . . so far outbalance the meager financial benefit to the [Respondents] that I do not believe the dues policy was so motivated.

Judge's Decision at 7.

It is well established that the determination of the matters to be admitted into evidence is within the discretion of an Administrative Law Judge under section 2423.31(b) (previously section 2423.19(g)) of the Authority's Regulations.(5) See Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749, 762-63 (1997); Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1531 (1994) and cases cited therein. Even assuming that the Judge erred in refusing to admit evidence concerning the dues payment policy, the General Counsel has not demonstrated how such an error would have affected the prima facie case.

C. Summary

For the above stated reasons, we find that the Judge properly applied the framework set forth in Letterkenny to the facts in this case. We find, in agreement with the Judge, that the Respondents did not violate section 7116(b)(1) and (8) of the Statute when they canceled the grievant's arbitration hearing, and the complaint is dismissed as to this contention.

V. Order

Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the American Federation of Government Employees, Local 1345, Fort Carson, Colorado (in Trusteeship), and the American Federation of Government Employees, AFL-CIO, shall:

1. Cease and desist from:

(a) Stating or implying that failure to pay dues or maintain union membership will be a factor in determining whether arbitration of an employee's grievance will proceed.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their 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 Federal Service Labor-Management Relations Statute:

(a) Post at their respective business offices, in normal meeting places, and at all other places where noticed to members and bargaining unit employees at Fort Carson, Colorado, 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 on behalf of the American Federation of Government Employees, Local 1345, by its Trustee, and on behalf of the American Federation of Government Employees, AFL-CIO, by its National Vice President, 13th District, 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 ensure that such Notices are not altered, defaced, or covered by any other material.

(b) Submit appropriate signed copies of such notices to the Commanding Officer of Fort Carson for posting in conspicuous places where unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting.

(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The remaining portion of the complaint concerning the cancellation of the grievant's arbitration hearing is dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the American Federation of Government Employees, Local 1345, Fort Carson, Colorado (in Trusteeship), and the American Federation of Government Employees, AFL-CIO, have violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify our members and bargaining unit employees that:

WE WILL NOT state or imply that failure to pay dues or maintain Union membership will be a factor in determining whether arbitration of an employee's grievance will proceed.

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.

American Federation of Government Employees, Local 1345

____________________________
(Union)

Dated:____________ By:________________________________

(Signature) (Title)

American Federation of Government
Employees, AFL-CIO
_____________________________
(Union)

Dated:____________ By:________________________________

(Signature) (Title)

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 its provisions, they may communicate directly with the Regional Director, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado, 80204-3581, and whose telephone number is: (303) 844-5224.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

LOCAL 1345,

FORT CARSON, COLORADO (IN TRUSTEESHIP)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO (1)

Respondents

and

EDWARD VASQUEZ

An Individual

Case No. DE-CO-40667

Timothy Sullivan, Esquire
Matthew Jarvinen, Esquire
For the General Counsel

Alexia McCaskill, Esquire
For the Respondents

Before: JESSE ETELSON
Administrative Law Judge

DECISION

The Respondent Unions withdrew an employee's grievance on the eve of its scheduled hearing before an arbitrator. An unfair labor practice complaint alleges that American Federation of Government Employees, Local 1345, Fort Carson, Colorado, and American Federation of Government Employees, 13th District, Lakewood, Colorado, withdrew the grievance because the employee failed to pay dues and maintain his union membership. Such withdrawal, it is alleged, constituted a failure to comply with the unions' duty under section 7114(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) to represent all employees "without discrimination and without regard to labor organization membership." By virtue of this alleged failure, the complaint further alleges that the Respondent Unions violated sections 7116(b)(1) and (8) of the Statute. The complaint also alleges an independent violation of section 7116(b)(1)--interfering with an employee's right to refrain from joining a labor organization--by the Respondent Unions' sending the employee a letter indicating that the arbitration of his grievance would be terminated unless he paid all of his back dues.

In their answer, the Unions deny that the withdrawal of the grievance was motivated by the employee's failure to pay dues or maintain membership. They also dispute the complaint's characterization of the letter to the employee, deny that the letter was authorized by a responsible Union official, and deny that they committed any unfair labor practices.

A hearing was held in Denver, Colorado. Counsel filed post-hearing briefs. Counsel for the Respondents requests that the complaint be dismissed as to Respondent American Federation of Government Employees, 13th District. Counsel represents that 13th District is not a labor organization but "purely an administrative office of AFGE National." Upon that representation, I find that American Federation of Government Employees, AFL-CIO (AFGE) and American Federation of Government Employees, Local 1345, are the proper Respondents. If 13th District is nothing but an administrative office of AFGE, service of the charge on 13th District and of the complaint on 13th District and AFGE gave AFGE adequate notice of the alleged unfair labor practices. The alleged unfair labor practices of 13th District were the acts of AFGE through its "administrative office." Therefore I order that AFGE is substituted for 13th District.

Findings of Evidentiary Facts(2)

Edward Vasquez was an employee of the United States Army at Fort Carson, Colorado, and a member of Local 1345, the exclusive representative of a unit of Fort Carson employees. Vasquez's Local 1345 dues were deducted from his pay. On March 5, the Army issued a "Decision on Letter of Proposed Removal," which constituted a removal action against Vasquez, effective March 27, 1993. Vasquez had no previous disciplinary record and had received "Exceptional" performance ratings on his two most recent appraisals. Local 1345 filed a grievance on his behalf and processed it to the arbitration stage, where the Army asserted that the grievance was not arbitrable because the Union was late in invoking arbitration. The grievance was submitted to the arbitrator on that threshold issue. In December 1993 the arbitrator issued a decision in Local 1345's favor, permitting arbitration on the merits to proceed. Meanwhile, Vasquez having lost his job, Local 1345 was no longer receiving dues for him from payroll deductions. It is not clear whether he made any direct dues payments during 1993. Nor is it clear on what periodic basis dues were collected in 1993 from members who did not pay through payroll deduction.(3)

In January 1994 AFGE placed Local 1345 in trusteeship and appointed as trustee National Vice President Donald Solano. Solano testified that he believed it was AFGE policy to require "direct dues" (those not paid by payroll deduction) to be paid for a year in advance, and directed Local 1345 Treasurer Virginia Medina to maintain that policy.(4) According to Solano, he also imposed a policy, of which he informed Medina, that any communication from the Local's office, either oral or in writing, was to be cleared by him.

Solano assigned National Representative Patrick O'Connor to handle the Vasquez arbitration, replacing the national and local officials who had processed the grievance up to that point. Vasquez discussed the grievance with both Solano and O'Connor in early 1994. The nature of the grievance was an attempt to ameliorate the discipline imposed, as Vasquez had admitted the offenses for which he was removed.

In late January or early February 1994, Medina phoned Vasquez and told him that, pursuant to Solano's instructions, Vasquez, as a member not on payroll dues deduction, had to pay the "full amount of union dues."(5) Vasquez told Medina that he was not working, but would try to pay something every week or two. He went to the Local 1345 office on February 18, 1994, gave Medina $30 toward his dues, and told her he would try to pay more as soon as he could.

In March, the representatives of the parties to the Vasquez grievance selected a new arbitrator to hear the grievance on the merits, and Vasquez was so advised. He gave Medina a dues payment of $20 on April 15. Somewhere in that general time frame he was informed that the arbitration hearing was scheduled for May 13 or 14.

At this point a factual dispute appears. Vasquez testified that, on learning of the arbitration date, he went to the union office to talk to O'Connor about the case. O'Connor was not there, and Vasquez spoke with Medina, who reminded him that he had not paid his dues for awhile. She then told him, according to Vasquez, that Solano had called her and said that if Vasquez did not pay the "full amount" of his dues his arbitration would be "terminated." Medina also said, according to Vasquez, that Solano had told her to so inform Vasquez. She also said that Vasquez would be getting a letter concerning this. Medina testified that she did not discuss the arbitration with Vasquez. Solano denied that he gave Medina the instructions that, in Vasquez' account, Medina attributed to him.

Vasquez apparently paid no further dues. He called the union office two or three weeks before the scheduled arbitration hearing and asked to speak to O'Connor about his case. O'Connor told Vasquez that the hearing had been rescheduled to June 14. They arranged to meet on June 13 for final preparation. Meanwhile, on May 27, Medina sent Vasquez the following letter:

Dear Mr. Vasquez,

According to our records, you are currently a "direct pay" Union member. Under Mr. Solano's direction, Direct Pay members must remit Union dues on an annual basis; $11.00 x 26 pay periods = $286.00.

Therefore, a total amount of $236.00 (this amount includes deduction of $50.00 already paid), must be remitted to AFGE Local 1345 within 15 days to preclude any potential termination of your arbitration case.

Questions concerning the above matter may be directed to the undersigned.

[signature]

Virginia Medina

Treasurer

AFGE Local 1345

Medina testified that she sent the letter without authorization or clearance from Solano or O'Connor. She also sent a letter to another "direct pay" member, giving him or her a 15-day deadline to pay for the balance of the year.(6) Medina testified that in Vasquez' case she, knowing about the arbitration case, decided on her own to "put that in" the letter to get him to pay. Solano also testified that he had nothing to do with, and had not been aware of, the letter.

A week or two before the scheduled June 14 arbitration hearing, on the suggestion of a management representative, O'Connor and management entered into grievance mediation with a mediator from the Federal Mediation and Conciliation Service. Their mediation session lasted 2 to 3 hours. Each side presented its case and met privately with the mediator. The grievance was not settled.

O'Connor testified that after this session he looked at a videotape showing Vasquez engaged in the course of conduct for which he was removed. Management had discussed this tape at the mediation session. The tape showed a progression of events that, in O'Connor's view, substantiated management's characterization of the offenses. The Union had been provided with a copy of the tape earlier, but, according to O'Connor, it had been misplaced and he had not had the opportunity to view it until the agency provided him with another copy after the mediation session. At some point after the mediation session, O'Connor testified, he discussed the matter with Solano, who left with O'Connor the final authority for deciding whether to proceed with the arbitration.

Although Vasquez had admitted his offenses, O'Connor, in preparing the case, had been searching for weaknesses in the agency's case, such as defects in its specifications of the offense or its consideration of the Douglas [v. Veterans Administration, 5 MSPR 280 (1981)] factors. Shortly before the hearing date O'Connor decided not to pursue the case. He testified that his decision was based on his belief that the grievant's case had no merit and would not have been successful. O'Connor testified further that Vasquez, during their interviews, seemed cocky and not remorseful, thus detracting from his credibility if called as a witness.(7) Finally, the mediator's private comments to O'Connor were "a big consideration."(8)

O'Connor informed Vasquez of his decision on June 13, when they met pursuant to their previous arrangement. O'Connor described to Vasquez the mediation session and his own evaluation of the merits. He told Vasquez that management continued to offer him the opportunity to resign instead of having a dismissal on his employment record. Vasquez declined that offer, as he had previously. O'Connor documented the substance of their June 13 meeting with a letter to Vasquez, stating, in pertinent part:

A review of all the evidence plus the input from a Federal Mediator of the Federal Mediation and Conciliation Service leads us to the conclusion that your case is without merit, therefore we have cancelled the hearing.

Credibility and Inferences

The parties agree that the basic framework for analysis of this case is to be found in Letterkenny Army Depot, 35 FLRA 113 (1990), where, at 118, the Authority articulated the requirements for making a prima facie showing in all cases of alleged discrimination. Thus, the General Counsel must establish that:

(1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and

(2) such activity was a motivating factor in the . . . treatment of the employee. . . .

Medina's letter suggests a connection between paying dues and proceeding to arbitration. The letter was timed so that its 15-day deadline for Vasquez to pay his dues expired just before the decision to drop the arbitration was communicated to him. This circumstantial evidence presents at least a ground for suspicion that Vasquez' failure to pay the balance of his dues was a motivating factor in the Union's decision. As support for that suspicion, we have Vasquez' disputed testimony that Medina also told him that Solano instructed her to tell Vasquez that his failure to pay would result in "terminating" his arbitration.

One must be wary of putting the cart before the horse. However, it would be difficult to assess the credibility of Vasquez' account without examining the substance of the Unions' defense, namely, that the decision to drop the arbitration was based on the unlikelihood of success. That is, while the asserted statement by Medina would constitute an admission attributable to the Unions, it is unlikely that such an admission actually was made unless Medina did in fact receive such instructions from Solano. Further (at the risk of belaboring the obvious), Solano is not likely to have given her such instructions unless he meant it and intended to act accordingly.

In evaluating the probabilities of what actually occurred here, I cannot fail to consider the background of the key individuals involved and the nature of the alleged violation. First, Solano, at whose door the alleged discriminatory decision is laid, is a seasoned labor relations professional, employed by AFGE (not by Local 1345 or by the employer agency) and appointed as trustee to rescue Local 1345 from what AFGE regarded as its mismanagement. Because of his background, I infer that Solano was aware of the fiduciary nature of his position as a trustee and the prospect that his conduct might well be scrutinized, by employees and perhaps by management, more closely than the conduct of locally-elected officials. Solano can also be expected to have realized that an instruction to be relayed directly to an employee in Vasquez' circumstances, specifically making dues payment a condition of continuing to represent him, would constitute a blatant violation of the Unions' statutory duty. Presenting such a linkage to an affected employee, might, of course, be an effective method of coercing dues payments. However, from Solano's vantage point, it would also have the easily foreseeable effect of eliciting an unfair labor practice charge and, not incidentally, providing incriminating evidence.

O'Connor is also an experienced labor relations professional, employed by the national AFGE union and familiar with the special responsibilities of trusteeship. He presented a plausible explanation for the decision, for which he accepted responsibility, to refuse to proceed with the arbitration. While Counsel for the General Counsel rely heavily on the timing of the decision, the legitimacy of the timing was adequately explained. O'Connor's participation in mediation of the grievance is undisputed despite some uncertainty as to whether it occurred one or two weeks before the scheduled arbitration hearing. Nor do I find any substantial basis to question O'Connor's testimony that he examined the videotape of Vasquez after its contents were discussed during the mediation session, and that he considered how it might influence the arbitrator. The parties' presentation of the substance of their cases before the mediator also gave O'Connor the opportunity to evaluate the Army's case for possible weaknesses and to consider the mediator's reaction to the presentations. As the dispute to be arbitrated was solely whether or not removal was a justifiable disciplinary response to Vasquez' offenses, it was also reasonable for O'Connor to assess Vasquez as a witness with regard to the credibility of his asserted remorse over his actions. Finally, although O'Connor did not mention it specifically in the context of his reasons for withdrawing the grievance, I note his testimony that the Army represented to him that it had additional evidence of wrongdoing by Vasquez, and that it intended to use this evidence if necessary to remove him again. This information would have suggested the possible futility of contesting the original removal.

The credibility of all of O'Connor's assertions is, of course, in the balance. So, too, is the credibility of Solano's denial that he instructed O'Connor how to proceed or that he instructed Medina to inform Vasquez that his arbitration depended on his dues payment. Ultimately, the credibility of all three of these Union officials must be balanced against Vasquez' testimony that Medina told him that she was so instructed, as well as the weight of Medina's May 27 letter.

No one witness seemed inherently more credible than any other. There was, of course, a crucial difference between Vasquez and Medina about one conversation in the union office. The circumstances persuade me that if, consistent with her letter but inconsistent with her testimonial recollection, Medina did mention the arbitration to Vasquez, she said no more than what she wrote in the letter, and did not tell Vasquez that she was relaying instructions from Solano linking Vasquez' dues payments with his arbitration.

The circumstances concerning the plausibility of the Unions' explanation, as related above, constitute one set of factors. The General Counsel, disputing the credibility of this explanation, urges a finding that Solano's course of conduct with respect to Vasquez was infected by a bad motive from the very beginning. Thus, it is argued that his imposition of the requirement for "direct pay" members to pay their annual dues in advance was aimed at Vasquez, "[i]n order to squeeze as much money [as] possible" from him.

This argument is based in part on suggested inferences that (1) Vasquez was the Local's only "direct pay active" member and (2) that Solano had taken the trouble to inform himself of this. Each of these suggested inferences is at least partly speculative. As to the first, the General Counsel points to their being only one "direct pay active" member, in May and December 1993. The assumption is that the sole member was Vasquez. I cannot be completely satisfied that this is so. The record does not reveal whether or not Vasquez continued paying dues after his March 1993 discharge and was carried on the Local's records as a member from then until his February 1994 partial dues payment. Further, I credit Medina that she had sent a letter to another "direct pay" member (probably near the time of her May 1994 letter to Vasquez) informing him or her of the new policy and requesting payment within 15 days. However, other circumstantial evidence, principally Vasquez' credited testimony that Medina called him and referred to him as a member not paying by payroll deduction, persuades me that he probably was the sole "direct pay active" member at the end of 1993.

Assuming that such an inference is warranted, the propriety of the further inference that Solano actually went through the process of so identifying Vasquez as such in his own mind is more difficult to determine. Ultimately, however, I am not persuaded that Solano devised the new dues payment policy to "squeeze as much money as possible" from Vasquez. The obvious risks of carrying through such a plot (witness the instant case, for example) so far outbalance the meager financial benefit to the Unions that I do not believe the dues policy was so motivated.(9) Moreover, such a policy, if aimed at a member whose continued payment of dues was known to be difficult because he was unemployed, would hardly have served to encourage other bargaining unit employees to become or remain members while they were still employed.

In the absence of such a plot, there remains the question of Medina's credibility when she denied receiving instructions from Solano to link Vasquez' dues payment with his arbitration and to so inform Vasquez. I credit her denials and her testimony that the suggestion of a possible linkage, in her May 27 letter, was her own idea. If, contrary to her recollection, Medina also linked dues with the arbitration in a conversation with Vasquez, he may well have assumed that the instructions came from Solano. However, I think it more likely that, as noted above, and consistent with the general tenor of Medina's testimony, she said nothing to him that was more specific than the "potential" for termination of the arbitration if he did not pay his dues. Whether she said even that I am unable to determine, nor do I feel capable of determining whether Vasquez believed he heard what he said he heard.(10)

Finding that Solano's denials are not contradicted by the phantom admission by Medina to Vasquez concerning Solano's intentions, I credit these denials and O'Connor's explanations for the decision that he, independently, made. Counsel for the General Counsel offers some reasons why O'Connor might rationally have decided otherwise, but has not succeeded, in my view, in showing that the decision was based on other than a good-faith assessment of the prospects for a successful conclusion to the arbitration. Nor do I find that the presumably truthful testimony of Patrick Crotty, chief of management-employee relations for the Army at Fort Carson, that O'Connor asked to borrow the Vasquez videotape a few days before the hearing in this case, warrants the discrediting of O'Connor's testimony that he watched the tape before the scheduled arbitration hearing. And notwithstanding Vasquez' admission of guilt, it would not have been unreasonable for O'Connor to fear that the arbitrator would admit the tape into evidence and be influenced by what it showed.

A suggestion by the General Counsel that O'Connor could have been more specific in describing the information he relied on is no more convincing. O'Connor was available for cross-examination. He made no discernible attempt to evade any questions that tested his explanation of his decision.(11) Nor do any of O'Connor's actions suggest that he was aware that his proceeding with the arbitration was contingent on Vasquez' dues payment.

Conclusions

Based on the above findings, I conclude that the General Counsel has not established a prima facie case that the Respondent Unions violated their statutory duty under section 7114(a)(1) of the Statute. I further conclude that they have not violated sections 7116(b)(1) or (8) by virtue of such conduct.

Notwithstanding these conclusions, I find that Medina's May 27 letter interfered with, restrained, or coerced Vasquez in the exercise of his right to refrain from assisting Local 1345. The letter was on Local 1345's official letterhead, signed by its treasurer, and gave Vasquez a reasonable basis to fear that his failure to pay the remainder of his annual dues within 15 days could result in the "termination of [his] arbitration case." In this respect, the General Counsel's failure to establish that Medina had actual authority to suggest such a connection does not absolve the Local. American Federation of Government Employees, Local 916, AFL-CIO, 28 FLRA 988, 1001-12 (1987). It is sufficient that Vasquez could reasonably have drawn from its contents the coercive inference that such a connection existed. See American Federation of Government Employees, Local 987, Warner Robins, Georgia, 35 FLRA 720, 724-25 (1990); American Federation of Government Employees, Local 987, 35 FLRA 563, 570-72 (1990).

Further, as the Local was in trusteeship under the auspices of AFGE, Medina also had apparent authority to speak for the trustee, AFGE's responsible representative for managing Local 1345's affairs. Therefore, AFGE is jointly responsible for the coercive effect of the letter. I find that Respondents Local 1345 and AFGE have violated section 7116(b)(1) of the Statute by giving an employee the impression that his failure to pay dues would jeopardize his opportunity to have his grievance heard by the arbitrator.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the American Federation of Government Employees, Local 1345, Fort Carson, Colorado (in Trusteeship), and American Federation of Government Employees, AFL-CIO, shall:

1. Cease and desist from:

(a) Stating or implying that failure to pay dues or maintain union membership will be a factor in determining whether arbitration of an employee's grievance will proceed.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their 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 Federal Service Labor-Management Relations Statute:

(a) Post at their respective business offices, in normal meeting places, and at all other places where notices to members and bargaining unit employees at Fort Carson, Colorado, 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 on behalf of American Federation of Government Employees, Local 1345, by its Trustee, and on behalf of American Federation of Government Employees, AFL-CIO, by its National Vice President, 13th District, 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.

(b) Submit appropriate signed copies of such notices to the Commanding Officer of Fort Carson for posting in conspicuous places where unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

IT IS FURTHER ORDERED that all remaining allegations of the complaint are dismissed.

Issued, Washington, DC, June 22, 1995

_________________________
JESSE ETELSON
Administrative Law Judge

NOTICE TO ALL MEMBERS AND EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR MEMBERS AND EMPLOYEES THAT:

WE WILL NOT state or imply that failure to pay dues or maintain union membership will be a factor in determining whether arbitration of an employee's grievance will proceed

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.

American Federation of Government
Employees, Local 1345

Date:____________ By:___________________________

(Signature) (Title)

American Federation of Government
Employees, AFL-CIO

Date:_____________ By:_________________________

(Signature) (Title)

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 of the Federal Labor Relations Authority, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844-5224.




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


Authority's Footnotes Follow:

1. The Respondents are the American Federation of Government Employees (AFGE or the National Union) and AFGE Local 1345 (the Local Union).

2. The Judge also found that the Respondents committed the independent violation of section 7116(b)(1) alleged in the complaint by sending the grievant a letter indicating that the arbitration of his grievance would be terminated unless he paid all of his back dues. No exceptions were filed to this finding. We adopt without precedential significance those findings to which no exceptions were filed, pursuant to section 2423.41(a) of the Authority's Regulations. This regulatory provision, which concerns the Authority's action on judges' decisions, was amended in 1997, and was previously contained in 5 C.F.R. § 2423.29. As the amended regulation applies to all ULP complaints pending after October 1, 1997, the amended regulation is applicable. See 62 Fed. Reg. 40922, 46175 (1997).

3. The videotape showed the grievant stealing from a blind vendor.

4. The term "mixed motive" is often used interchangeably with the terms "dual motive" and "legitimate motivation." In a "mixed motive" case, both lawful and unlawful reasons (motives) for the respondent's actions have been established. This differs from a "pretext" case. A "pretext" case involves the finding that the proffered, lawful reason for respondent's actions did not, in fact, motivate the respondent, and that instead, the respondent's acts were motivated by considerations deemed unlawful under applicable law. See Letterkenny, 35 FLRA at 119-20. In Midder, the court stated that the distinction between these types of cases may be somewhat blurred, but because that case dealt only with "mixed motive" the court did not elucidate any distinctions. Id., slip op. at 6 n.6.

5. Section 2423.31(b) of the Authority's Regulations states:

The Administrative Law Judge shall receive evidence and inquire fully into the relevant and material facts concerning the matters that are the subject of the hearing. The Administrative Law Judge may exclude any evidence that is immaterial, irrelevant, unduly repetitious, or customarily privileged. Rules of evidence shall not be strictly followed.


ALJ's Footnotes Follow:

1. As explained in the text of this decision, this party is substituted for American Federation of Government Employees, 13th District, Lakewood, Colorado (Trustee of American Federation of Government Employees, Local 1345, by and through the Office of National Vice-President), one of the originally named Respondents.

2. Statements of fact in this section and recited without attribution are, unless indicated otherwise, those I deem to be undisputed. Credibility resolutions will be resolved separately.

3. Local 1345 membership reports for May and December 1993 show that during each of those months it had one "direct pay active" and eight "direct pay retired" members.

4. On placing the Local in trusteeship, AFGE's national president removed all of its officers. Solano appointed Medina, who had served as treasurer for about six months, but no other former officers, to resume her position.

5. This was Vasquez' characterization of what Medina said.

6. Counsel for the General Counsel implies that Medina's testimony regarding the other letter is suspect, noting that she did not have a copy of that letter available at the hearing. However, Medina was the General Counsel's witness, albeit a reluctant one. It was not shown that she had been either asked or required to bring a copy of the letter with her.

7. During a pre-removal interview with representatives of management and a union representative (not O'Connor), as summarized in a memorandum the accuracy of which Vasquez vouched for in his testimony, Vasquez had asserted that he had witnessed "worse abuses" than his and that "nothing was done to those perpetrators."

8. O'Connor also testified that the agency had informed him that it had developed more evidence, and that if Vasquez was taken back it intended to remove him again the next day.

9. Such a plot would have had dubious potential for the Unions even from a strictly financial viewpoint. Had Vasquez paid his annual dues and the Unions proceeded to arbitration and lost, the cost of the arbitration would have far exceeded his dues and he, no longer a bargaining unit employee, would have been unlikely to renew his membership in future years. Had arbitration proceeded and resulted in Vasquez' reinstatement, the Unions could almost be assured of hi