File 2: Opinion of Member Wasserman
[ v55 p437 ]
Member Wasserman, dissenting:
I do not think that the General Counsel's position in this case was substantially justified or that other special circumstances support denial of the fee request. Accordingly, I dissent.
The General Counsel's prosecution of this case was in a context that militated against such pursuit. The complaint alleged interference with Bradley's rights under sections 7102 and 7116(c) based only upon the disciplinary action being taken during the period of non-compliance with the Authority's reinstatement order. Enforcement of an Authority order is accomplished through the filing of a petition in an appropriate United States court of appeals. 5 U.S.C. § 7123(b). Indeed, that is exactly what the Authority did through its action taken in the 11th Circuit. Once a petition for enforcement is granted, contempt proceedings provide the basis for achieving compliance if a party remains recalcitrant. I do not think there was anything novel or untested about the concept of judicial enforcement that supported the General Counsel's attempt to address the failure to reinstate Bradley in the context of an unfair labor practice case.
Further, I am not persuaded by the General Counsel's contention that he was raising a new ULP violation of "whether a union can, during the pendency of an order to reinstate an employee, turn around and expel that employee prior to reinstatement." GC Exceptions at 13 n.8. That description sounds to me like an effort to enforce the first ULP reinstatement order. To the extent one views the matter as a true combination of the reinstatement issue with the issue of the propriety of discipline against a non-member, it still does not constitute a justifiable, novel legal position. In my view, it simply combines two questions which did not need answering in the context of this case.
Even though the Authority had not previously considered whether a union could take discipline against a former member, it is evident that the Statute permits discipline consistent with a union's constitution and Chapter 71. 5 U.S.C.§7116(C). In light of this statutory language and the private sector precedent permitting discipline of non-members, see, e.g., Local 1255, International Association of Machinists and Aerospace Workers v. National Labor Relations Board, 456 F.2d 1214 (5th Cir. 1972), seeking an explicit determination [ v55 p438 ] to the contrary does not appear reasonable. [n1] In any event, the fact that the Authority had not previously addressed the particular legal arguments raised in this case, does not make the legal theory a "novel" theory worthy of litigation. As noted by the majority, "novelty" does not necessarily create the justificat ion for the denial of fees under the EAJA. See, AFGE Local,495.
The General Counsel was understandably perturbed by the union's failure to reinstate Bradley immediately upon receipt of the Authority's order, but the second ULP prosecution ignores the institutional prerogatives of the union to pursue disciplinary proceedings consistent with its constitution, so long as it is not for any reason prohibited by the Statute. Since the complaint did not allege that discipline was initiated for any reason prohibited by the Statute, the fact that Bradley was a non-member did not matter and was not really an issue.
The facts of the case do not present anything that would overcome the frailties of the General Counsel's legal theories, so as to justify pursuit of this complaint. This is not a case where the union was flouting the Authority's order for the purpose of grinding a political axe. Instead, the union was addressing an employee whose tenure as a union officer was marked by financial improprieties, as determined by a DOL investigation and the union disciplinary proceedings. In addition, the litigation of this case ignored the fact that the union had retroactively reinstated the employee, effective until her proper suspension from membership. Notice of the reinstatement was dated December 9, 1993, and the General Counsel issued his complaint on December 15, 1993. Retroactive reinstatement until the date of the suspension provided the basis for the charging party to receive any benefits of union membership to which she would have been entitled, for the period of valid entitlement. [n2] What more could have been sought, except enforcement, which lies only with the court?
I do not agree that even if one were to reject the General Counsel's position as not substantially justified, special circumstances warrant the denial of fees. Essentially, the majority is saying that if the union had complied timely, the second case would have been avoided. In contrast, I think the union's compliance, although later than it should have been, obviated the need for the second case. Reinstatement was effected before the complaint was issued in this matter. Once the union had complied with retroactive reinstatement, there was nothing more to be gained by prosecuting the Union for having taken action consistent with its statutory and constitutional rights to discipline mem