[ v55 p601 ]
55 FLRA No. 103
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/AFL-CIO
(Respondent)
and
ROBERT S. RUCKMAN, AN INDIVIDUAL
(Charging Party)
and
ANDREAS LIEBRECHT, AN INDIVIDUAL
(Charging Party)
and
KEVIN T. SERRATT, AN INDIVIDUAL
(Charging Party)
and
SCOTT W. WINNEKER, AN INDIVIDUAL
(Charging Party)
and
FEDERAL AVIATION ADMINISTRATION
(Charging Party)
AT-CO-70017
AT-CO-70147
CH-CO-70081
SF-CO-70086
WA-CO-70004
_____
DECISION AND ORDER
June 30, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members [n1]
I. Statement of the Case
This matter is before the Authority on exceptions to the Administrative Law Judge's (Judge's) Decision filed by Respondent National Air Traffic Controllers Association. The General Counsel and one Charging Party, the Federal Aviation Administration (the Agency), filed oppositions to the Respondent's exceptions.
The Judge found that the Respondent violated the duty of fair representation set out at section 7114(a) of the Federal Service Labor-Management Relations Statute (Statute) when it permitted delegates to its national convention to determine the seniority policy to be applied in its collective bargaining agreement. The Judge also found that a letter sent by the Respondent's Western Pacific Region President (the Regional President) to an employee who was not a member of the Respondent violated this duty.
For reasons fully explained below, we hold, contrary to the Judge, that the duty of fair representation did not require the Respondent to permit non-members to participate in the vote to determine the seniority system. We affirm, for reasons that differ from the Judge's, that the Respondent violated the duty of fair representation as a result of the Regional President's letter.
II. Background and Judge's Decision
The background of this case is set out in the attached decision of the Judge and is summarized here. The Respondent is the exclusive representative of a nationwide bargaining unit of air traffic controllers. The collective bargaining agreement between the Respondent and the Agency provides that, "[e]xcept . . . [for reductions in force], seniority will be determined by the Union at the local level." Judge's Decision (Decision) at 4.
The Respondent determined the seniority policy to be applied under the contract by a vote of the delegates at its 1996 national convention. Pursuant to the Respondent's constitution, the national convention is the Respondent's "Supreme Body with full and complete authority over all the affairs of the Association." Decision at 5, quoting Constitution, Art. IV, Section 1. Business at the convention is conducted by delegates, who must be members of the Respondent and who are elected by members of the Respondent.
The Respondent's national convention considered alternative proposals for determining the seniority policy to be applied in the contract. Prior to the convention, the delegates used a variety of methods to solicit the opinions of employees concerning the seniority policy and to determine the manner in which to cast their votes. Decision at 6-13. The methods included the posting of flyers, the distribution of information about the issue to union members and non-members, discussion of the issue at meetings, and "votes or polls" at four facilities. Id. at 6-13, 16. [ v55 p602 ]
After the convention vote, a non-member of the Respondent wrote a letter objecting to certain aspects of the new seniority policy. The Regional President responded with a letter that stated, in part:
If you and 99 other non members were NATCA members and had voted against a National Seniority System this resolution would have failed . . . . If you want to change this resolution, you have an opportunity to do so at the 1998 Convention in Seattle. I suggest you join the Union, become active and submit a resolution which either amends R96-015 or does away with a National Seniority Policy altogether.
Decision at 2, quoting General Counsel Exhibit 1(k).
After the Respondent voted to establish a national seniority policy, the Agency filed a grievance under the parties' collective bargaining agreement, alleging that the establishment of the seniority policy violated the terms of the agreement. The grievance was submitted to arbitration, and the arbitrator held that the agreement ceded authority to the Respondent to determine the seniority policy, including the authority to determine the manner in which the policy would be exercised. The Arbitrator denied the grievance. [n2] No exceptions to the award were filed with the Authority.
The Agency and four employees who are included in the bargaining unit but are not dues-paying members of the Respondent filed unfair labor practice charges. The General Counsel filed a consolidated complaint incorporating the five charges, alleging that the Respondent violated section 7116(b)(1) and (8) of the Statute by determining the seniority policy by vote of dues-paying members only and that the Respondent violated section 7116(b)(1) when the Regional President sent the letter to the employee concerning the policy.
The Judge concluded that, prior to the convention, delegates discussed the seniority proposals with both members and non-members of the Respondent. The Judge found that, at certain locations, the Respondent "showed a keen awareness of the proscription on member-only voting" and did not conduct polls. Decision at 16. According to the Judge, "polls or votes" were taken at four facilities, and the poll taken at the Orlando facility was restricted to members of the Respondent only.
The Judge noted the undisputed evidence that the convention delegates were not bound by the result of any polling that was undertaken, finding that each representative reported having discretion in determining how to vote. The Judge also stated that every representative who testified "stated that his vote reflected the wishes of the facility." Decision at 18.
The Judge held that the Respondent violated the duty of fair representation, relying on the Authority's decision in National Federation of Federal Employees, Local 1827 and Catherine Bratton, 49 FLRA 738 (1994) (Bratton). The Judge interpreted Bratton as not permitting a union to "establish a new seniority policy at its Convention by the vote of dues-paying members," because a poll at a convention that only includes members "neglect[s] the interests of the nonmembers who would be affected by the new computations." Decision at 31-32. The Judge noted that, if he were not constrained by the Authority's holding in Bratton, then he would find that the Respondent had not violated the duty of fair representation.
To remedy the violation, the Judge ordered that the seniority policy be returned to the status quo ante and that non-dues-paying members of the Respondent be reimbursed for any pay, benefits, or differentials lost through the change in seniority systems. He also ordered the Respondent to "conduct a poll, vote, or referendum in each local union in which every member of the bargaining unit . . . is permitted to participate fully." Id. at 33.
The Judge also concluded that the Respondent violated section 7116(b)(1) of the Statute when the Respondent's Western Pacific Regional President sent the letter concerning the seniority issue to a non-member. The Judge found that the letter violated the right, described in Bratton, of non-dues-paying members to "participate in any referendum which determines a condition of employment." Decision at 34. The Judge did not order a remedy specific to this violation.
III. Positions of the Parties
A. The Respondent's Exceptions
The Respondent asserts that, as a factual matter, it allowed non-members to participate in the determination of the national seniority policy. According to the Respondent, the Judge concluded in his decision that non-members played no part in the determination of the seniority policy, and such a conclusion is contrary to the evidence of record and to the Judge's own findings. Exceptions at 20, 22-23.
Next, the Respondent contends that the Judge misapplied Bratton. It argues that Bratton only requires a [ v55 p603 ] union to include non-members in a binding poll that determines conditions of employment. According to the Respondent, the record establishes that no binding polls were taken of the membership in this case and that it is undisputed that the delegates to the convention were not bound by any of the preconvention deliberations that took place.
In this regard, the Respondent argues that the Judge erred in equating a poll of members with a union convention because, according to the Respondent, applicable precedent permits unions to exclude non-members from participation in a union convention. The Respondent claims that its actions in this case comport with applicable precedent concerning the duty of fair representation. Id. at 30-31 (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) (Ford Motor)). The Respondent also argues that Bratton was wrongly decided.
Additionally, the Respondent argues that the arbitrator's award upholding the Respondent's construction of the contract demonstrates that it did not violate the rights of the Charging Parties. The Respondent moves that the Authority remand the complaint to the Judge for consideration of the award or, in the alternative, take official notice of the award.
With respect to the Judge's finding that the Respondent violated the Statute based on the Regional President's letter, the Respondent argues that the letter did not constitute unlawful interference with an employee's right to refrain from joining a union. Respondent alleges that the letter merely "informed" the employee "that if he desired greater participation in internal union affairs, he should consider joining" the union. Id. at 29, n.12.
Finally, the Respondent contests the remedy ordered by the Judge, objecting to the requirement that it conduct a referendum. [n3]
B. General Counsel's Opposition
The General Counsel argues that the Judge correctly concluded that the Respondent's convention vote was improper, without regard to whether the Respondent solicited the views of non-members prior to the convention. Further, the General Counsel argues that the Respondent's pre-convention activity of failing to poll non-members at the Orlando facility, standing alone, violated the statutory duty of fair representation. Additionally, the General Counsel argues that the Respondent "had no procedures to ensure that the delegates' vote would reflect the opinions of the employees." General Counsel's Opposition at 6.
According to the General Counsel, the Judge properly applied Bratton. The General Counsel contends that the Respondent breached its duty of fair representation by vesting convention delegates, who were accountable solely to dues paying union members, with the authority to determine the seniority policy. Id. at 8. (citing Branch 6000, National Association of Letter Carriers, 232 NLRB 263 (1977) (Letter Carriers I)), aff'd, 595 F.2d 808 (D.C. Cir. 1979) (Letter Carriers II)). The General Counsel also asserts that the Authority correctly decided Bratton and that this decision is consistent with well-settled precedent in the private sector.
With respect to the arbitration award, the General Counsel argues that the award does not affect the determination that the Respondent violated the Statute. The General Counsel claims that the arbitrator limited the scope of the award to contractual issues, stating that he was not determining whether a statutory violation occurred.
Finally, the General Counsel argues that the remedy ordered by the Judge is warranted. The General Counsel asserts that status quo ante relief, including make-whole relief for non-members, is within the broad range of remedial power of the Authority and is designed to recreate conditions that would have existed absent the unfair labor practice.
C. Agency's Opposition
The Agency asserts that the participation afforded non-members by the Respondent did not satisfy the Respondent's duty of fair representation. The Agency argues that, even if delegates to the national convention did consider the opinions of non-members, it was a matter of personal preference and not one that was "institutionalized to an extent that the viewpoints of non-dues paying members were adequately represented." Agency's Opposition at 3. The Agency asserts that this level of participation of non-members is not similar to the participation of union members, who "tacitly gave their delegates support." Id.
The Agency argues that the case is not distinguishable from Bratton. In addition, the Agency disputes the Respondent's contention that ratification of a collective bargaining agreement is analogous to the vote on senior- [ v55 p604 ] ity policy. Ratification of a collective bargaining agreement, the Agency claims, "constitutes merely an advisory vote [that] settles no term or condition of employment." Id. at 9.
The Agency asserts that the arbitration award is immaterial to the violations at issue. The Agency notes that the arbitrator found the duty of fair representation question to be outside the scope of the grievance, limiting his inquiry to whether the determination of the new seniority policy violated the agreement.
IV. Analysis and Conclusions
A. The Duty of Fair Representation
Section 7114(a)(1) of the Statute provides that "[a]n exclusive representative is responsible for representing . . . all employees in the unit it represents without discrimination and without regard to labor organization membership." This provision incorporates in federal labor relations the duty of fair representation recognized for unions in the private sector. See National Treasury Employees Union v. FLRA, 800 F.2d 1165, 1171 (D.C. Cir. 1986).
Under the duty of fair representation, unions are required to "serve the interests of all members [of a bargaining unit] without hostility or discrimination toward any, to exercise discretion with complete good faith and honesty, and to avoid arbitrary conduct." Air Line Pilots Association, International v. O'Neill, 499 U.S. 65, 76 (1991), quoting, Vaca v. Sipes, 386 U.S. 171, 177 (1967). The duty of fair representation obligates unions to represent all bargaining unit employees, requiring that "representational activities grounded in the union's status as exclusive representative must be undertaken without discrimination and without regard to labor organization membership." Bratton, 49 FLRA at 746. As one court described this duty, "when a union uses a power which it alone can wield, it must do so for the benefit of all employees within its bargaining unit." American Federation of Government Employees v. FLRA, 812 F.2d 1326, 1328 (10th Cir. 1987).
Consistent with these principles, the Authority assesses allegations that a union has discriminated on the basis of union membership using a two-step analysis. First, we determine whether the union's disputed activities were undertaken in the union's role as exclusive representative. Bratton, 46 FLRA at 746. Second, we determine whether the union discriminated on the basis of union membership. Id.; compare Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico, et al., 36 FLRA 776 (1990) (Antilles Consolidated) (union may not discriminate between members and non-members in the administration of insurance plan negotiated in collective bargaining agreement), with Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908, 918 (1987) (union may discriminate between members and non-members in representation provided in forums not grounded in union's role as the exclusive representative).
B. The adoption of the seniority policy by delegates to the Respondent's convention did not violate the duty of fair representation
Here, the Respondent's disputed activity was the determination of seniority rules under contract provisions that permit it to set this condition of employment. In Bratton, the Authority held, with respect to this same subject, that there was "no question that [determining seniority for the bargaining unit] was subject to the duty of fair representation." 49 FLRA at 747. Similarly here, no party disputes that the Respondent administers the seniority policy in its role as exclusive representative and that the duty of fair representation applies to the Respondent's determination of this policy.
With respect to the second part of the Authority's test --whether the Respondent discriminated against non-members -- there is no allegation that the substance of the seniority policy discriminates against non-members. In particular, no party excepts to the Judge's finding that the seniority policy selected by the Respondent was "employee neutral, i.e., was wholly unrelated to membership or non-membership in the Union". Decision at 31.
Although the Judge held that the substance of the Respondent's policy did not discriminate against non-members, he found that the procedure Respondent used to select the seniority policy illegally discriminated. In this regard, the Judge concluded that it violated the duty of fair representation for the Respondent to determine this policy at its convention, which may only be attended by delegates who are union members. The Judge held that this conclusion was dictated by the Authority's decision in Bratton.
We do not agree with the Judge that Bratton and the case law it relied on dictate that the Respondent violated the duty of fair representation here. As the following discussion explains, this precedent requires a union to include both members and non-members where the union sets a condition of employment through a binding vote of employees. It does not require that unions allow non-members to participate as union representatives. [ v55 p605 ]
As a general matter, unions are afforded a wide degree of latitude in the procedures that they use to formulate their positions with respect to conditions of employment. See National Labor Relations Board v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, 350 (1958); Ford Motor, 345 U.S. at 337-38. For example, it is well established that unions are permitted to exclude non-members from contract ratification votes, Letter Carriers II, 595 F.2d at 813, and from polls taken to determine the union's positions in negotiations. See PATCO (Professional Air Traffic Controllers Organization), MEBA, AFL-CIO, Local 301, Aurora, Illinois, A/SLMR No. 918, 7 A/SLMR 896 (1977) (exclusion of non-members from poll to determine a negotiating proposal not a breach of duty of fair representation). See also American Postal Workers Union Pittsburgh Metro Area Postal Workers Union, AFL-CIO (United States Postal Service) and Blair Gorczyca, 300 NLRB 34 (1990) (American Postal Workers Union) (no breach of duty of fair representation to exclude non-members from meeting to discuss union's position on proposed changes to employer's operations). As the U.S. Court of Appeals for the District of Columbia Circuit explained:
The union has responsibility as exclusive bargaining agent to formulate the employees' position on terms and conditions of employment. This responsibility may be delegated by the union membership. Such delegation is an internal union procedure from which non-union employees properly may be excluded. However, the delegatee, once selected, must in turn function as a representative for all the employees in the bargaining unit.
Letter Carriers II, 595 F.2d at 811-812 (citations omitted). See also American Postal Workers Union, 300 NLRB at 35 (member-only meeting not a violation where union did not turn over its decision-making power as representative to the majority vote of its members).
The basic principle of Letter Carriers II is that an individual representing a union must "function as a representative for all the employees in the bargaining unit." 595 F.2d at 811-812. If a representative's "negotiating decisions are motivated solely by self-interest, then there is a breach of the duty of fair representation." Id. at 812. Consistent with this principle, if the union delegates final decision-making to a vote of employees, then both union members and non-members must be included in the voting. See Id. See also Bratton, 49 FLRA at 748.
Here, the Respondent did not determine the seniority policy by a vote of its members. It determined the seniority policy by a vote of delegates to its national convention. These delegates operated as representatives of the employees. As the Judge described, each union delegate who testified stated that he had discretion in deciding how to vote on the resolutions, but that "every one stated that his vote reflected the wishes of the facility." Decision at 18. The Judge specifically found, in this regard, that "delegates did not vote their personal preferences." Id. at 31. No exceptions have been filed with respect to this finding. The delegates were, thus, acting as representatives of the entire bargaining unit. [n4]
The Judge held that he was constrained by Bratton to find the Respondent violated the Statute because "the legal issue is the same" and because the fact that the "vote moved from the local level to the national convention" was not dispositive. Id. Although we agree with the Judge that the level at which a decision is made is not a dispositive factor, we do not agree that this is the only distinction between this case and Bratton. The role of the individuals making the determination in this case is different from the role of the individuals making the decision in Bratton. As long as the decision-making power is vested in union representatives, rather than employees generally, and those representatives properly carry out their representative functions, Bratton and Letter Carriers do not dictate that non-members of the union be included as decision-makers. [n5] [ v55 p606 ]
This result is supported not only by the precedent cited, but by important policy considerations. A finding that the practices followed by the Respondent here violate the duty of fair representation would have the effect of discouraging unions from democratically involving lower level union representatives in union decision-making. The inclusion of local union representatives in decision-making should be encouraged, however, especially where, as here, it appears that their inclusion was part of an effort to adopt a policy that reflected the desires of employees in the bargaining unit. [n6]
In sum, we conclude that the Respondent did not violate the duty of fair representation by determining its seniority policy through a vote of delegates at its convention.
C. The Respondent violated the duty of fair representation as a result of the Regional President's letter
The Judge found that the Respondent violated section 7116(b)(1) of the Statute when the Regional President sent a letter to a non-member of the union stating the following:
If you and 99 other non members were NATCA members and had voted against a National Seniority System this resolution would have failed . . . . If you want to change this resolution, you have an opportunity to do so at the 1998 Convention in Seattle. I suggest you join the Union, become active and submit a resolution which either amends R96-015 or does away with a National Seniority Policy altogether.
Decision at 2, quoting General Counsel Exhibit 1(k). The Judge reasoned that, because the employee had a right, under Bratton, to participate in any vote on the seniority issue, the denial of that right based on union membership violates the Statute.
Consistent with our finding, above, that non-members do not have a right to participate in a vote concerning the seniority policy at the Respondent's convention, we find that the Judge's rationale for ruling that the Respondent violated the Statute as a result of the Regional President's letter is erroneous. Nevertheless, for reasons that differ from the Judge's we find that Respondent violated the Statute.
The standard for determining whether a union's allegedly coercive statement violates section 7116(b)(1) of the Statute is an objective one: whether, under the circumstances, employees reasonably could have drawn a coercive inference from the statement. See American Federation of Government Employees, Local 987, Warner Robbins, Georgia, 35 FLRA 720, 724 (1990) (Warner Robbins). As in cases involving a violation of section 7116(a)(1) of the Statute, the standard for a section 7116(b)(1) violation is not based on the subjective perceptions of the employee hearing or receiving the communication, or on the intent of the speaker. See Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1124 (1987). See also American Postal Workers Union, 300 NLRB at 35 (finding a violation where the union makes communications that "under the circumstances, convey the impression that [it] intended to treat [a] non member disparately.").
Applying this objective standard, we find, for the reasons that follow, that the Respondent violated section 7116(b)(1) of the Statute as a result of the Regional President's letter.
The Regional President's letter states that the seniority system the Charging Party objected to would have been rejected if he and "99 other non-members" had joined the union and voted against it. This information, while factually incorrect, indicates that a direct vote on the seniority policy was available to all members of the union, and implies that non-members views and interests did not count. [n7] The letter thus conveys the "coercive inference" (Warner Robbins, 35 FLRA at 724) that the Respondent treated non members disparately. [n8] See American Postal Workers Union, 300 NLRB at 35.
The letter does not, as the Respondent argues, simply inform the employee of the "greater participation" he might gain as a union representative at the convention. Moreover, while the dissent correctly points out that the letter does not contain an express statement that the employee's views would not be considered unless he [ v55 p607 ] joined the Union, no "stretch" (Member Wasserman Dissent at 20) is necessary to conclude that this is clearly implied by the letter's statement that the seniority system would have failed "if" the employee and "other non members" became members of the Union. Decision at 2. The letter effectively states that the seniority policy is directly determined by union members alone, and conveys the message that non-members views on the issue are not counted. The employee could reasonably have drawn a coercive inference from the letter as it relates to the exercise of the employee's right to join, or not join, the union and, for this reason, we find that Respondent violated the Statute as a result of the letter. [n9]
In sum, we find that the Respondent violated the duty of fair representation as a result of the Regional President's letter for reasons different from those stated by the Judge. We issue an order requiring the Respondent to cease and desist from such conduct, and directing the Respondent to post a notice concerning the violation. As the Judge did not order any relief specific to this violation, and as no party requested relief specific to this violation in their exceptions, no further relief is ordered.
V. Order
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the Respondent shall:
1. Cease and desist from:
(a) Creating the impression that non-members are excluded from any influence over delegates who determine policies concerning conditions of employment.
(b) Interfering with, restraining, or coercing unit employees in the exercise of their right to join or to refrain from joining the National Air Traffic Controllers Association, MEBA/AFL-CIO, or any other labor organization, freely and without fear of penalty or reprisal.
(c) In any like manner, interfering with, restraining or coercing unit employees in the exercise of their rights assured by the 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 its local business office of the Western Pacific Region, at its normal meeting places, and at all other places where notices to members and to employees of the Western Pacific Region, are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the Respondent and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and other employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the Notices are not altered, defaced, or covered by any other material.
(b) Submit appropriate signed copies of the Notice to the Federal Aviation Administration, for posting in conspicuous places where unit employees represented by the Respondent are located. Copies of the Notice should 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 Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v55 p608 ]
NOTICE TO ALL OUR MEMBERS
AND TO ALL OTHER AIR TRAFFIC CONTROLLERS
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the National Air Traffic Controllers Association, MEBA/AFL-CIO, Washington, D.C., 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 ALL OTHER AIR TRAFFIC CONTROLLERS EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION THAT:
WE WILL NOT create the impression that non-members are excluded from any influence over delegates who determine policies concerning conditions of employment.
WE WILL NOT interfere with, restrain, or coerce unit employees in the exercise of their right to join or to refrain from joining the National Air Traffic Controllers Association, MEBA/AFL-CIO, or any other labor organization, freely and without fear of penalty or reprisal.
WE WILL NOT in any like manner, interfere with, restrain, or coerce unit employees in the exercise of their rights assured by the Statute.
____________________
Date: ___________ By: ____________________
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 provision, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Regional Office, whose address is: Tech World Plaza, 800 K Street, NW., Suite 910, Washington, DC 20001, and whose telephone number is: (202) 482-6700.
Opinion of Member Cabaniss, dissenting in part:
I respectfully dissent to the conclusion that the Respondent did not violate the Statute by the manner in which it excluded non-union member involvement in the process of formulating a seniority policy. Rather, and as found by the Judge, I would find the Respondent's conduct conflicts with the Authority's holding in Bratton. Additionally, I would also find a violation of the duty of fair representation to the extent that Union representatives sought input from local Union members but not non-Union members. As the majority notes, there are clearly instances where input from non-union members need not be sought: the circumstances of this case, however, would not be one of those instances.
Opinion of Member Wasserman, dissenting in part.
I disagree with the approach taken by my colleagues in footnote 3, above, wherein they avoid addressing the Respondent's exception to the Judge's failure to grant their motion to dismiss the agency's DFR claim against the union. Even though the issue is not outcome determinative, I would grant the exception.
The concept of duty of fair representation is designed to protect employees and to permit them to vindicate their rights in relation to the union. Duty of fair representation is not a claim made by employers against unions. The Authority's regulations cannot reasonably be interpreted to permit DFR claims by an agency against a union, and can be read only to permit other types of ULPs by agencies against unions, e.g., bad faith bargaining. Accordingly, I would hold that the agency lacked standing to file a DFR charge against the union.
I dissent with respect to the determination that the Regional VP committed a ULP by telling non-members that they could have affected the policy had they joined the union. As a practical matter, unions use employee complaints to try to leverage membership, and I do not think the Regional VP went overboard in this case. There was no statement that if the employee did not join, his views would not be considered. The majority decision implies that if the Regional VP had said "if you were elected convention delegate," the letter simply would have been accurate and not a coercive statement. I do not think the union officer should be held to such a high standard of precision, especially where one must "stretch" to read coercion into the representative's letter.
What the Regional VP did write was perfectly reasonable and non-coercive in the context of this case. The Respondent's constitution has a ratification clause, Resp. Exceptions at 8 n.4, so that joining the union, in [ v55 p609 ] fact, could have a dispositive effect on the seniority policy. The CBA left to the union the ability to determine seniority, and the members could refuse to ratify the next agreement that did not contain a satisfactory seniority clause. In addition, the Judge noted that union "members" submitted seniority resolutions to the Constitution Committee, Decision at 5, which suggests that membership does provide a vehicle for putting forward resolutions at the convention. Accordingly, I do not think that the VP's statements served as a basis for a coercive inference, and I would find that the union did not violate the Statute in this regard.
55 FLRA No. 103 - #1 of 2 Web Documents
Footnote # 1 for 55 FLRA No. 103 - #1 of 2 Web Documents
The opinions of Member Cabaniss, dissenting in part, and Member Wasserman, dissenting in part, appear at the end of this decision.
Footnote # 2 for 55 FLRA No. 103 - #1 of 2 Web Documents
The arbitration award issued subsequent to the Judge's decision in this case.
Footnote # 3 for 55 FLRA No. 103 - #1 of 2 Web Documents
The Respondent also excepts, without explanation, to the Judge's failure to dismiss the Agency's charge for lack of standing. However, the Respondent has not challenged the standing of any other charging party. Accordingly, as only one party in a consolidated case need have standing, we find it unnecessary to resolve this exception. See Bowsher v. Synar, 478 U.S. 714, 721 n.1 (1986).
Footnote # 4 for 55 FLRA No. 103 - #1 of 2 Web Documents
Because it is undisputed that the delegates to the convention acted in a representative capacity, the fact that a members- only poll was conducted by the Respondent at its Orlando facility does not establish a violation of the Statute. The polled members at that facility were not exercising the delegated decision-making power of the Respondent, which is an element necessary to trigger the violation described in Bratton and Letter Carriers.
Footnote # 5 for 55 FLRA No. 103 - #1 of 2 Web Documents
Because we do not believe that the decision in Bratton controls the outcome in this case, we do not address the Respondent's contention that Bratton was incorrectly decided. Nevertheless, we do not agree with Respondent's characterization of Bratton as requiring that employees who are not union members be included in internal union deliberations. In Bratton , the Authority adopted the reasoning of the Court of Appeals for the District of Columbia Circuit in Letter Carriers II. Letter Carriers II explicitly provides that a wide variety of union decision-making, including polling of members, may exclude non-members of the union. Letter Carriers II, 595 F.2d at 812. The Bratton/Letter Carriers II line of cases does not disapprove members-only ratification, and holds only that a union commits a violation of the duty of fair representation under the narrow circumstances where it delegates to its members the right to determine a condition of employment, without any subsequent exercise of decision-making responsibility on the part of the union or any safeguards assuring that the members are, in fact, acting as a representative "committee of the whole," rather than simply voting their personal, individual interests. Id.
Footnote # 6 for 55 FLRA No. 103 - #1 of 2 Web Documents
In this case, the Respondent's National Executive Board recommended unanimously against the adoption of a national seniority policy by the convention. Decision at 6. Nevertheless, the delegates to the Respondent's convention, after extensive consultation with employees in the bargaining unit, see Decision at 6-13, 15-16, rejected this position.
Footnote # 7 for 55 FLRA No. 103 - #1 of 2 Web Documents
Undisputed facts establish that the vote on the seniority system was taken by delegates to the convention, not members of the union generally.
Footnote # 8 for 55 FLRA No. 103 - #1 of 2 Web Documents
The finding, above, that the Respondent Union did not, in fact, conduct an improper vote of members to determine seniority rules does not excuse the impropriety of the Regional President's letter. By informing the recipient of the letter that he had, because of his non-member status, been denied a vote offered to all union member to set the seniority policy, the letter created an improper coercive inference.
Footnote # 9 for 55 FLRA No. 103 - #1 of 2 Web Documents
To be sure, unions may attempt to "use employee complaints to try to leverage membership[.]" Member Wasserman Dissent at 20. Nothing we hold here today should discourage those efforts. We hold only that, in so doing, unions must observe the requirements of the Statute.