American Federation of Government Employees, Local 3354, AFL-CIO (Respondent) and Opal Lang (Charging Party)

[ v58 p184 ]

58 FLRA No. 48

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3354, AFL-CIO
(Respondent)

and

OPAL LANG
(Charging Party)

DE-CO-90981

_____

DECISION AND ORDER

November 14, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, 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 (GC). The Union filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated § 7116(b)(1), (2), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) acting in an arbitrary, discriminatory, or bad faith manner in its implementation of a Fair Labor Standards Act (FLSA) settlement agreement between the Union and the United States Department of Agriculture, Rural Development, St. Louis, Missouri (the Activity), resulting in the disparate treatment of unit employees; and (2) discriminating against unit employees, based on considerations of membership or status in the Union, in implementing the settlement agreement.

      The Judge concluded that the Union had not committed the violations as alleged, and dismissed the complaint.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II.     Background and Judge's Decision

A.          Background

      The facts in this case are set forth in detail in the Judge's decision, and are briefly summarized here.

      The Union and the Activity entered into a settlement agreement in which the Activity agreed to compensate unit employees who had worked overtime or compensatory time during a certain period. The agreement provided that unit employees had 30 days from the date of the agreement to submit their documentation in support of their claim to the Union, and the Union had 45 days to submit the information to the Activity. The Union had proposed the latter provision so that it would have a role in the claims procedure. The agreement also provided that the Activity would pay claims in seriatim and that the total amount of payment would not exceed $75,000. The Union president testified, without contradiction, that the Union recognized that $75,000 might not be enough to pay all of the claims, and that the Union would have to be careful that the process was first-come, first-served, and based on employee initiative. Transcript at 160.

      Based on these considerations, the Union established the principle of first-come, first-served, and set up a procedure to collect the claims. As part of the procedure, the Union required bargaining unit employees to complete a survey. There were separate surveys for Union members and nonmembers. [n1]  Nonmembers were asked, among other things,

Will you join AFGE Local 3354 by signing the Request for Payroll Deduction of Labor Organization Dues, giving your support, financial and personal, to AFGE for the purpose of strengthening our collective bargaining and political action?
If you answered NO, please tell us why?

ALJD at 5, quoting General Counsel Exh. 13 and 14.

      By memorandum dated February 16, the Union notified unit employees of the settlement and how to submit claims. [n2]  The notice informed employees that the Union's offices at 1520 Market Street and 4300 Goodfellow Street would be open the next day, from 9:00 a.m. until 1:00 p.m., and that the Market Street office would also be open on February 18 and 19 at the same time. The Union had a third office, at 2350 Market Street. On February 17, before the offices were open to receive claims, the Union was asked by management to send a representative to the 2350 Market Street location, which it agreed to do. [ v58 p185 ]

      When the claims were collected, the Union put the claims together on a master list. As found by the Judge, not all of the claims were put on the list consistent with the first-come, first-served policy announced in the Union's memorandum. For example, the Union accepted the claims of three night shift employees before 9:00 a.m. on February 17 and put them on the list; two of the employees were Union members and the other employee became a Union member that day. Their claims were paid.

      Four other employees who were not members of the Union (Lang, Cline, Hodgson and Unfried) arrived at the 1520 Market Street office shortly before 9:00 a.m. on February 17. They were told by the Union president that "the Union representatives were not ready to receive documentation," ALJD at 8, and their names and phone numbers were taken. Their claims were not paid, while claims of Union members who were in line while the four nonmembers were returning to their offices to await the Union's call were paid. [n3] 

      Six other employees who were Union members were given priority over other employees who were in line. The Judge stated "[w]ith regard to the allegation that the Union gave priority to the claims" of Union members, the Union "accepted . . . the documentation of the six individuals who were needed to assist . . . in collecting documentation from other employees." ALJD at 20-21.

      Another nonmember (Ivanovich) did not receive the memo notifying employees of the claims procedure. Nonetheless, she appeared and filed her claim between 10:00 and 10:30 a.m. on February 17 when she learned that claims were being collected. She was told by the Union representative collecting the claims that she would have to fill out a survey "to ensure your place in line." Id. at 10. She checked "no" to the question asking if she would become a Union member. Her claim was not paid. Similarly, another nonmember (Sloan) also was asked to complete the survey when the Union took her claim. She was asked if she would like to consider joining the Union, to which she answered, "No." Id. at 12. Her claim was not paid. In contrast, at least one Union member (Milton) who did not get the notice was allowed to file the next day, and she was paid. Id. at 21, 22. Further, another employee (Harris) who submitted her claim a day late, and who joined the Union at the same time that she submitted her claim, was paid. Id. at 22, Jt. Exh. 1.

      In total, of the 78 claims on the Union's list, 48 were paid before the $75,000 cap was reached. All 38 claims submitted by Union members were paid. ALJD at 15-16. Ten other claims filed by unit employees who were not Union members were also paid. All 30 claims that were not paid were filed by unit employees who were not Union members. Id. The processing of claims and the issuance of payments took place from June through August. The Union was aware at the time it submitted the list that only unit employees who were not Union members were among the claimants who would not be paid. Id. at 16.

      In August, the Union president sent a memo to employees. The memo included his "observation" that in processing the grievance that led to the Union's involvement in collecting the claims, Union members did not want to do "all that work" for the benefit of nonmembers. ALJD at 17. The memo also stated that if more unit employees became Union members, they would "be able to have full knowledge, voice, and vote on issues affecting their working conditions, such as whether to accept a settlement with a cap, or to go to arbitration." Id. at 18 (quoting the memo).

      The memo also described the settlement and procedures for making claims. It stated that "many union members . . . contacted the union - in advance of the general letter to bargaining unit employees, to make arrangements to have their claims processed at the top of the list. These requests were accommodated, especially for those employees who worked on second or third shift, or otherwise would not be available for the `cattle call' when all affected bargaining unit employees would bring their claims to the Union office." Id. at 17-18.

      The memo continued that the Union did its best to be fair to everyone in compiling the list seriatim, and stated that "[i]n some cases, this differed, but only slightly, from the order in which people lined up." Id. at 18.

      Thereafter, some employees who were not Union members questioned the description of the claims process in the August memo, asserting that it was different from the process set forth in the Union's February 16 memo. An employee who was not a Union member filed an unfair labor practice charge and the General Counsel issued a complaint.

B.          Judge's Decision

      The Judge addressed the two allegations of the complaint that the Union had acted in violation of its duty of fair representation. First, he rejected the allegation [ v58 p186 ] that the Union acted in an arbitrary, discriminatory, or bad faith manner in the implementation of the settlement agreement, resulting in disparate treatment of bargaining unit employees. [n4] 

      As to the allegation that the Union had violated its duty of fair representation by discriminating among unit employees based on whether or not they were Union members, the Judge stated that in NATCA, MEBA/AFL-CIO, 55 FLRA 601, 604 (1999) (NATCA), the Authority set forth the following two-prong test for determining whether a union violates its duty of fair representation where union membership is a factor: (1) whether the union's disputed activities were undertaken in the union's role as exclusive representative; and (2) whether the union discriminated on the basis of union membership.

      As to the Union's role, the Judge found that it was acting as exclusive representative, because the Union has a duty of fair representation as exclusive representative of all unit employees with regard to all stages of grievance processing, and the settlement negotiations had been undertaken as a result of a grievance alleging that unit employees were improperly classified as exempt from the FLSA.

      To determine whether the Union discriminated on the basis of union membership, the Judge used the framework for dual motive cases alleging union discrimination on the basis of union membership set out in Letterkenny Army Depot, 35 FLRA 113, 117-23 (1990) (Letterkenny). Under Letterkenny, the GC has at all times the burden of establishing by a preponderance of the evidence that: (1) the employee was engaged in protected activity; and (2) such activity was a motivating factor in the agency's or union's treatment of the employee in connection with conditions of employment. If the GC establishes a prima facie case, the Respondent can establish an affirmative defense by demonstrating that there was a legitimate justification for its action and that it would have taken the same action even in the absence of protected activity.

      The Judge found that it was unnecessary to determine whether the GC had made a prima facie case, because he determined that the Union had shown by a preponderance of the evidence that it had a legitimate reason for its actions and that it would have so acted even in the absence of the protected activity.

      In reaching his conclusion that the Union had established an affirmative defense, the Judge stated that "[t]he numbers cited by the General Counsel of nonmembers who were not paid are suspicious. However, suspicion is not evidence and speculation is not proof." ALJD at 25. He noted that 10 nonmembers were among the 48 employees on the list who were paid. He rejected several of the GC's arguments, including an argument that the Union had made hostile statements to nonmembers and that the contents of the August memorandum also demonstrated hostility, and the argument that the Union's failure to follow its principle of first-come, first-served was not done in good faith, based on credibility resolutions. He also found that the Union's collection of claims and merging them into a master list of persons to be paid by the Agency in seriatim, while "far from perfect," had a rational basis. Id. at 26. He concluded that "Union membership played no part" in any deviations from the Union's first-come, first-served policy. Id.

      Accordingly, the Judge found that the second allegation in the complaint had not been proved, and he dismissed the complaint.

III.     Positions of the Parties

A.          General Counsel's Exceptions

      As to the Judge's dismissal of the allegation that the Union discriminated on the basis of Union membership, the GC asserts that it made a prima facie case, and the GC disputes the Judge's finding that the Union established an affirmative defense under Letterkenny.

      The GC relies primarily on the undisputed fact that all 30 of the unit employees whose claims were not paid were not members of the Union, while all 38 Union members,including 8 employees who joined the Union within two weeks or less of submitting their claims, were paid. The GC also asserts that the Union gave priority to 6 Union members who served as Union representatives, "despite the fact that other employees were in line to submit their claims before these [U]nion representatives." Exceptions at 5. According to the GC, "[t]hese facts alone establish a pattern by the Union of favoring [U]nion members over non-members and support a conclusion that the Union discriminated against the thirty (30) non-members by causing their claims not to be paid." Id.

      The GC also contends that the sequence and timing of events demonstrate the link between the Union's "decision to exclude the thirty (30) non-members from the employees who were to be paid and the employees' pursuit of protected activity, i.e., to refrain from joining [ v58 p187 ] the union." Id. at 8. As a basis for this contention, the GC points to the 8 recently-joined employees whose claims were all paid, as well as surveys used by the Union that asked different questions of Union member and nonmember employees.

      The GC also asserts that the Union displayed open hostility toward employees who were not Union members, as shown by the August memorandum from the Union president in which he discussed the processing of the claims. As noted above, the memorandum referred to comments by Union stewards that they did not want to do work for employees who "won't pay union dues." Exceptions at 7. The GC argues that the Judge erroneously discounted statements that were made in the memorandum.

      The GC further disputes the Judge's conclusion that Union membership did not play a part in the priority given to members' claims to the detriment of nonmembers. The GC argues that the Union failed to show a legitimate justification for its failure in several instances to follow its first-come, first-served principle.

      As an example of the allegedly improper deviations from the Union's own principle, the GC contends that the Union improperly gave priority consideration to several Union members' claims. In this regard, the GC contends that the Union allowed 3 Union members to file their claims early, but refused to allow 4 nonmembers in similar circumstances to file their claims early. The GC also contends that the Union improperly gave 6 Union members priority in line over nonmembers because they were needed to help collect unit employees' claims, yet the Judge improperly failed to note that only Union members were given the opportunity to assist the Union in collecting claims. Further, the GC asserts that the Union gave 3 other Union members priority simply because they were Union members. Finally, as another example of an allegedly improper deviation from the Union's first-come, first-served principle, the GC asserts that 4 nonmembers were the only employees in line to submit claims before the designated time, and they were told the Union was not ready.

      The GC contends that all of the variances from the first-come, first-served principle benefitted Union members. According to the GC, these variances demonstrate that the Union lacked legitimate justification for its actions, contrary to the Judge's conclusion.

      Finally, the GC argues that the Judge's credibility resolutions that led to his dismissal of the complaint should be reviewed under the standard in Dep't of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins AFB, Ga., 55 FLRA 1201, 1204 (2000) (Warner Robins). The GC argues that the Judge "failed to specifically identify the existence of any credibility disputes, the particular witness testimony he credited, or the basis upon which he determined the respective credibility of the witnesses." Exceptions at 14-15.

B.          Union's Opposition

      The Union asserts that the GC has not established that the Judge erred in dismissing the complaint.

      Concerning the allegation that the Union discriminated on the basis of Union membership, the Union argues that the GC's stipulation that several of the 48 employees who were paid were not Union members proves that the Union did not discriminate on the basis of Union membership against nonmembers. The Union claims that the GC "simply failed to meet its burden of proof" to make a prima facie case that would have warranted shifting the burden to the Union to show that its actions were legitimate. Opposition at 35. With respect to the GC's argument that the Union's animus towards nonmembers is demonstrated by its failure to give nonmembers an opportunity to assist in the claims process, the Union contends that this argument is not properly before the Authority under § 2429.5 of the Authority's Regulations because it was not raised before the Judge.

      In response to the GC's allegation of open hostility by the Union toward nonmembers, the Union argues that there is no instance cited wherein this alleged hostility was manifested. The Union also argues that the GC does not explain attempts by the Union to raise the $75,000 cap, a move that could only benefit nonmembers since only nonmembers had not been paid.

      The Union also contests the GC's assertion that the Judge did not properly weigh the evidence.

IV.     Analysis and Conclusions

A.          Legal Standard

      Section 7114(a)(1) of the Statute states 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). The duty of fair representation obligates unions to represent all bargaining unit employees, requiring that "representational activities grounded in [ v58 p188 ] the union's status as exclusive representative must be undertaken without discrimination and without regard to labor organization membership." NFFE, Local 1827, 49 FLRA 738, 746 (1994).

      As set forth above, the complaint alleges that the Respondent violated its duty of fair representation in two ways: (1) by acting in an arbitrary, discriminatory, or bad faith manner in implementing the settlement agreement, resulting in the disparate treatment of unit employees; and (2) by discriminating against unit employees, based on considerations of Union membership, in implementing the settlement agreement. We address the second allegation.

      Where it is alleged that a union violated its duty of fair representation by discriminating on the basis of membership in the union, the Authority first determines whether the union's disputed activities were undertaken in its role as exclusive representative. If so, the duty of fair representation attaches, and the Authority determines whether the union discriminated on the basis of union membership. NATCA, 55 FLRA at 604.

      Where the GC alleges that a union violated its duty of fair representation by discriminating on the basis of membership in the union, and the union contends that its actions were taken for legitimate motives, the Authority applies the Letterkenny framework. AFGE Local 1345, Ft. Carson, CO (In Trusteeship) and AFGE, AFL-CIO, 53 FLRA 1789, 1793-95 (1998). If the GC establishes that an employee was engaged in protected activity and that the activity was a motivating factor in the union's treatment of the employee, the GC has made a prima facie case of improper discrimination. Once a prima facie case is established, the respondent may seek to establish an affirmative defense by showing that there was a legitimate justification for its action and that it would have acted in the same way even in the absence of the protected activity. Id. at 1793.

B.          The GC Established A Prima Facie Case Of
Discrimination Based On Union Membership

      The Judge found, and it is undisputed, that the Union's participation in arrangements for implementing the settlement agreement was undertaken in its role as exclusive representative. Therefore, the Union's duty of fair representation attaches. We next examine whether the Union discriminated on the basis of union membership against unit employees who were not members of the Union. Such employees were engaged in the protected activity of refraining from joining or assisting a labor organization, as provided in § 7102 of the Statute. The Judge found it unnecessary to determine whether the GC established a prima facie case.

      There is no dispute that all of the Union members who submitted claims were paid, and that all of the employees who submitted claims but were not paid were nonmembers. Similarly, there is no dispute that 8 employees who joined the Union at about the time that their claims were submitted were also paid. In addition, 6 other Union members who also served as Union representatives were paid, despite the fact that other employees, including non-members, were in line to submit their claims before these Union representatives. This evidence is sufficient to establish a prima facie case of discrimination based on protected activity; that is, based on the employees' exercise of their right to refrain from joining or assisting a labor organization as provided in § 7102 of the Statute. [n5] 

      We reject the Union's assertion that since several employees who were not Union members were among the unit employees who were paid, there was no prima facie case. This does not alter the fact that all of the Union members who submitted claims were paid, and all of the employees who submitted claims but were not paid were not Union members. Similarly, the Union's argument that it attempted to have the $75,000 ceiling raised does not change the fact that given the limit that the Union agreed to and was unsuccessful in changing, all Union members who filed claims were paid, while all of those who were not paid were nonmembers.

      In these circumstances, we conclude that the GC established a prima facie case that the Union discriminated on the basis of Union membership.

C.          The Union Has Failed To Establish An Affirmative Defense

      In order to refute the prima facie case, the Union must demonstrate that there was a legitimate reason for its action and that it would have acted in the same way absent the protected activity.

      As noted above, in connection with the allegation that the Union discriminated on the basis of Union membership, the Judge applied the Letterkenny test to determine whether the Union had established an affirmative defense, assuming, without finding, that the GC [ v58 p189 ] had established a prima facie case of a violation. He concluded that the Union had established an affirmative defense by demonstrating by a preponderance of the evidence that it had a legitimate basis for its disparate treatment of Union members and nonmembers, and concluded that Union membership played no part in any deviations from the first come, first served principle. He noted that although the numbers were "suspicious," ALJD at 25, 10 nonmembers were among those whose claims were paid.

      The Judge rejected the GC's arguments that the Union made hostile remarks to nonmembers about their nonunion status; that the Union's August memorandum demonstrated hostility to nonmembers; and that the failure to honor the first-come, first-served principle was not done in good faith.

      The GC contests the Judge's finding that the Union established an affirmative defense. In support, the GC argues that the Union deviated from its first-come, first-served principle so as to benefit 12 Union members, and no nonmembers. The Union acknowledges that it did not follow its first-come, first-served policy in all instances, but asserts that it had a legitimate reason for each of its actions. We now examine the reasons asserted by the Union for its actions, as found not to be discriminatory by the Judge, and the GC's contentions that the favoritism of Union members is evidence of discrimination against nonmembers.

      The Union allowed 3 employees who were Union members to file their claims before the opening time stated in the memo. It allowed these employees to file early because they were on the night shift. ALJD at 21.

      Six Union members who were asked by the Union to assist in collecting the claims information were given priority over other employees, including non-members, who were in line at the designated time. Id. at 6-8, 21.

      Three additional Union members (Buffington, Harris, and Milton) were given special treatment by being put on the list before actually filing their claims. The Union accepted Buffington's claim late when she said she was sick and asked to bring her documentation the next day. Id. The Union permitted Harris to bring in her information the next day when she said she left her documentation home. Id. Finally, the Union gave Milton extra time because she had not received the notice of filing. We note that Harris and Milton joined the Union on February 18. Jt. Exh. 1. There is no indication that the Union granted similar consideration to nonmembers. [n6] 

      However, other unit employees, who were not Union members, arrived early but were not allowed to file until later, depriving them of being high enough on the list to be among those whose claims were paid. In this regard, 4 employees who were not Union members (Cline, Hodgson, Lang, and Unfried) arrived shortly before 9:00 a.m. on February 19 at the 1520 Market Street office. ALJD at 8. They were told that the Union was not ready to receive their information and were asked to leave their names and telephone numbers. Id. Lang testified that while she was waiting for Cline to provide his name and telephone number, 15 to 20 employees formed a line. Tr. at 265-66. These employees were not told, unlike Cline and the other individuals mentioned, to come back later. Id. at 265-66, 268. Some of those identified were Union members.

      Other Union conduct demonstrates that it treated nonmembers differently in unexplained ways. When Sloan was asked to complete the survey when the Union finally did take her claim, she was asked if she would like to consider joining the Union, to which she answered, "No." ALJD at 12. Nonmember Ivanovich was required to fill out the survey before her claim would be considered. However, not all Union members were required to fill out a survey in order to have their claims considered. Id. at 6.

      In our view, the record as a whole demonstrates that the Union has not met its burden under Letterkenny of establishing that it had legitimate reasons for disregarding the first-come, first-served principle to the benefit of 12 Union members and disadvantage of nonmembers for whom the Union did not take similar action.

      In addition to arguing that the Union discriminated by the above specific acts of favoring its members, the GC also contends that the Union's method of compiling its list generally was inconsistent with the first-come, first-served principle. The Union acknowledged that it did not keep track of the specific times at which employees submitted claims at each location, but stated that it kept track of the order in which claims were submitted. The Union compiled the master list by inserting 2 or 3 employees from 1520 Market Street on the list for each employee from 4300 Goodfellow Street or 2350 Market Street, without regard to which claims were filed first. However, the claim of at least one nonmember [ v58 p190 ] (Sloan) was not paid, even though she had submitted her claim before a particular member, whose claim was honored. ALJD at 21. Sloan signed her name after another nonmember (Senter) whose claim was not paid. Id. at 12. This indicates that both of these nonmember employees would have been high enough on the list to be paid, based on the Judge's finding that it appeared "likely" that they submitted their documentation before the Union member. See id. at 21.

      Finally, we note the GC's argument that further evidence of the Union's discriminatory motive is that the Union "was openly hostile toward non-members." Exceptions at 7. The GC notes, in this regard, the Union's August memorandum. The memo stated that Union members did not want to do all the work for the benefit of nonmembers, and that if more unit employees became Union members, they would "be able to have full knowledge, voice, and vote on issues affecting their working conditions, such as whether to accept a settlement with a cap, or to go to arbitration." ALJD at 18 (quoting the memo). The memo also stated that "many union members . . . contacted the union -in advance of the general letter to bargaining unit employees, to make arrangements to have their claims processed at the top of the list. These requests were accommodated." Id. at 17. Finally, the memo explained that the Union did its best to be fair to everyone in compiling the list seriatim, but stated that "[i]n some cases, this differed, but only slightly, from the order in which people lined up." Id. at 18.

      These statements indicate that Union membership would confer the benefit of "full knowledge" concerning matters that the Union is obligated to inform all unit members about, ALJD at 18, quoting Union memorandum, and that members were given favored treatment in filing claims when requested. This supports a conclusion that the Union violated the Statute.

      In view of the foregoing, we are not persuaded that the Union has established a legitimate justification for the difference in its treatment of employees who were Union members and those who were not. In sum, we conclude that the Union has not established an affirmative defense to the GC's showing of a prima facie case that the Union discriminated in the administration of the settlement agreement on the basis of Union membership. [n7] 

      In view of this conclusion, we find it unnecessary to address the other allegation in the complaint; namely, that the Union further violated the Statute by discriminating among unit employees in an arbitrary, discriminatory, or bad faith manner in its implementation of the settlement agreement.

V.     Remedy

A.           General Counsel's Requested Remedy

      In addition to a notice posting, the GC proposes alternative make-whole remedies. First, the GC requests that the Union make whole all 30 nonmembers "whose claims under the settlement agreement were not processed after being timely submitted to the Union as a result of the unlawful allocations." Exceptions at 27. Alternatively, the GC asks that the Union be ordered to make whole 8 specified employees "who clearly should have been paid based on the time they submitted, or attempted to submit their documentation," by paying them a total of $10,750, which represents the total of their claims. Id. at 27-28.

      The GC contends that the Authority may find a union liable for monetary damages if an employee's lost earnings are due to the union's breach of its duty of fair representation. The GC cites AFGE Local 1857, AFL-CIO, 28 FLRA 677 (1987), where a union was ordered to make whole an employee whose name it deleted from a list of employees eligible for back pay, if the employer would not agree to include the employee in the settlement.

B.          Union's Opposition

      The Union asserts that requiring payment for 30 employees, as sought by the GC, would void the $75,000 cap agreed to by the parties in the settlement agreement, and claims that the remedy sought would shift to the Union the responsibility for the Agency's failure to properly compensate employees under the FLSA. The Union also argues that the GC has not explained why the 8 employees identified in the requested alternative remedy should receive money, because the GC has not shown why those employees are in any different position from the other employees who were not paid under the settlement agreement. [ v58 p191 ]

      In addition, the Union also claims that it is illegal to seek money damages from a union for an employer's violation of the FLSA. Further, the Union claims that the financial remedies sought by the GC would adversely affect the Union's ability to perform its representational functions. Accordingly, the Union argues that if a ULP is found, the remedy should be limited to the posting of a notice.

C.          Analysis and Conclusions

      The Authority has previously issued remedies holding a union liable for losses suffered by employees due to the union's failure to comply with its duty of fair representation. For example, the Authority has required a union to make whole an employee who suffered a monetary loss due to the union's failure to meet its duty of fair representation. NFFE Local 1827, 49 FLRA 738, 748-49 (1994). Where it was clear that a union's unlawful conduct interfered with employees' terms and conditions of employment, the union was ordered to make whole any employee who was determined to have suffered a loss of pay, benefits or differentials as a result of the unlawful conduct. Id.

      In this case, we reject as unsupported the GC's requested remedy that the Union make whole all 30 nonmembers whose claims under the settlement agreement were not processed. Because there is nothing inherently wrong about the principle of first-come, first-served, the GC has not established that, in light of the $75,000 cap, all 30 nonmembers would have received payment even if the Union had processed their claims without violating its duty of fair representation.

      However, the General Counsel has established that, if the Union had adhered to its announced principle in processing the claims, the 8 named employees would have received payment. Thus, Lang, Unfried, Cline and Hodgson were prepared to file their claims before others lined up. The Union delayed taking their claims, and some of those later arrivals were Union members who were paid. Ivanovich did not file on time because she did not receive notice of the sign-up procedure, but Union members were given priority, and were paid, while Ivanovich was not. Sloan and Senter would have been high enough on the list to be paid before some Union members who signed up after they did. [n8] 

      Accordingly, we will order the Union to make whole those 8 employees who lost pay as a result of the Union's violation of its duty of fair representation.

      The Union's claim that the remedy sought would shift responsibility for the Agency's illegal FLSA non-payments to the Union is without merit. The remedy is for the Union's ULP violation of its duty of fair representation by discriminating in the enforcement of the settlement agreement, not for any violation of the FLSA. For the same reason, the Union's argument that it is illegal to seek money damages from a union for an employer's violation of the FLSA is without merit. Our order does not require the Union to pay damages. The Union will be required to make whole certain unit employees for their losses due to the Union's violation of its duty of fair representation in enforcing the settlement agreement. We also reject as unsupported the Union's claim that the financial remedies sought by the GC would adversely affect the Union's ability to perform its representational functions.

      Determination of the correct amount of backpay for the named employees is appropriate for the compliance stage. See Dep't of the Air Force, Nellis Air Force Base, Nevada, 41 FLRA 1011, 1018 (1991). Therefore, we will order the Respondent to make whole the 8 named employees who suffered a loss of pay, upon satisfactory completion of the compliance process.

VI.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the American Federation of Government Employees, Local 3354, AFL-CIO, shall:

      1.     Cease and desist from:

      (a)     Failing to perform its duty of fairly representing bargaining unit employees by discriminating in the processing of claims pursuant to a Fair Labor Standards Act settlement agreement.

      (b)     Interfering with, restraining, or coercing employees of the bargaining unit it represents in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal. [ v58 p192 ]

      (c)     In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

      (a)     Represent the interests of all employees in the exclusive bargaining unit that the Union represents without discrimination and without regard to labor organization status or membership.

      (b)     Make whole eight (8) bargaining unit employees (Lang, Unfried, Cline, Hodgson, Ivanovich, Sloan, Senter and Kun) whose claims were not processed after the claims were timely submitted under the terms of the Fair Labor Standards Act settlement agreement.

      (c)     Post at the business office of the American Federation of Government Employees, AFL-CIO, Local 3354, and in normal meeting places, including all places where notices to employees exclusively represented by the American Federation of Government Employees, AFL-CIO Local 3354, 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 American Federation of Government Employees, AFL-CIO, Local 3354, 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.

      (d)     Submit signed copies of said Notice to the U.S. Department of Agriculture, Rural Development, St. Louis, Missouri, for posting in conspicuous places where unit employees represented by American Federation of Government Employees, AFL-CIO, Local 3354, are located, where they shall be maintained for 60 consecutive days from the date of posting.

      (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver 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.


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, AFL- CIO, Local 3354, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail to fairly represent bargaining unit employees by discriminating in the processing of claims pursuant to a Fair Labor Standards Act settlement agreement.

WE WILL NOT interfere with, restrain, or coerce employees in the bargaining unit we represent in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101.

WE WILL represent the interests of all employees in the unit we represent without discrimination and without regard to labor organization status or membership.

WE WILL make whole eight (8) bargaining unit employees (Lang, Unfried, Cline, Hodgson, Ivanovich, Sloan, Senter and Kun) whose claims were not processed after the claims were timely submitted to us under the terms of the Fair Labor Standards Act settlement agreement.

      _______________________
(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 for the Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado, and whose telephone number is (303) 844-5224.


File 1: Authority's Decision in 58 FLRA No. 48
File 2: ALJ's Decision


Footnote # 1 for 58 FLRA No. 48 - Authority's Decision

   The Union representatives knew, for the most part, which employees were Union members. ALJD at 5.


Footnote # 2 for 58 FLRA No. 48 - Authority's Decision

   Unless otherwise specified, all dates refer to 1999.


Footnote # 3 for 58 FLRA No. 48 - Authority's Decision

   All Union members who filed claims were paid. Among those mentioned as having been observed in line were Union members Lewis and Risk. See Jt. Exh 1.


Footnote # 4 for 58 FLRA No. 48 - Authority's Decision

   The Judge's discussion regarding this allegation is set forth at pp. 19-24 of his decision. Since, as we discuss below, we find it unnecessary to pass on his determination regarding this allegation, we do not summarize his reasoning here.


Footnote # 5 for 58 FLRA No. 48 - Authority's Decision

   We have not considered the GC's argument that the Union's animus towards nonmembers is demonstrated by its failure to give nonmembers an opportunity to assist in the claims process, since this argument was not raised before the Judge and is not properly before the Authority under § 2429.5 of the Authority's Regulations.


Footnote # 6 for 58 FLRA No. 48 - Authority's Decision

   The Union did claim that if nonmember Ivanovich, who did not receive timely notice, had requested accommodation, the Union would have granted such a request. ALJD at 22. However, the fact remains that the Union did not accommodate Ivanovich.


Footnote # 7 for 58 FLRA No. 48 - Authority's Decision

   As reflected above, our conclusions are based on a review of the record as a whole, and do not rely on evidence that resulted from credibility resolutions. Credibility resolutions concerning statements that go to legal conclusions, such as testimony that Union membership played no part in the priority given or in preparation of the master list, ALJD at 26, are not dispositive. See, e.g., United States Dep't of Justice, Immigration and Naturalization Service, New York Office of Asylum, Rosedale, N.Y., 55 FLRA 1032, 1037 (1999) (testimony regarding legal and statutory interpretation not given dispositive weight). Accordingly, we do not address further th