File 2: Opinionof Chairman Cabaniss
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Concurring Opinion of Chairman Cabaniss:
With respect to the sufficiency of the charge filed in this case, the dissent argues that the suitable clear and concise statement of facts required by 5 C.F.R. § 2423.4(a)(5) was made in this case without explaining how a statement of facts related to communication with a union president provided the Respondent with notice that it was being charged with a ULP based upon bypass. Under the plain terms of the above regulation, the majority's holding is the proper response to a failure to provide even the barest notice required by Authority regulation, precedent and due process.
The crux of a bypass allegation is the undermining of the exclusive representative by not communicating through the union's officers. Here, the charge accused the Agency of contacting the Union president, and yet the dissent would find that the charge actually gave the Agency adequate notice of a bypass allegation. The majority does not agree and finds the facts alleged to be insufficient to constitute notice of an unfair labor practice allegation based upon bypass.
Even if I were to find that the charge was sufficient to warrant the Authority entertaining the merits of this matter, I would find that the General Counsel failed to prove an allegation of bypass.
Here, the General Counsel argues that the bypass was premised on the Respondent's representatives direct communication with the bargaining unit in that the communication urged bargaining unit members to exert pressure on their exclusive representative to take a certain course of action. However, I disagree that the complained of communication undermined the status of the exclusive representative.
In this respect, as the Judge noted, the local president had already conducted a poll of the bargaining unit to determine whether the membership was in favor of maintaining/modifying HIMP. The results indicated that a majority of employees wanted the HIMP project to continue without having three inspectors at fixed locations. [*] G .C. Exh. 3. The Judge found that the results of the polling were sent to, among others, AFGE, AFL-CIO, and that the poll and the decision to send the results were not influenced by the Respondent. Judge's Decision at 8. In fact, the local president specifically stated that the decision to conduct the poll was entirely the decision of the local Union and that decision was not influenced by the Respondent. Tr. at 73. Moreover, the local president testified that after receiving the e-mail he did nothing to respond to it. Tr. at 80.
Additionally, the local president testified that it was not uncommon for him to get a variety of information concerning the status of the HIMP program in the plant from the Respondent's representative. Tr. at 69, 70. According to the Judge, this type of communication was consistent with the terms of the RBO which stated that, "Management will reemphasize to all supervisors the importance of having an open line of communication with employees." Judge's Decision at 7. In this respect, the Judge determined that the e-mail sent on September 6, 2000, was a continuation of the type of allowable exchange of information under the parties' RBO and it did not amount to the Respondent urging the local Union to pressure the Council to make concessions in order to save HIMP.
Turning to the content of the e-mail, the e-mail itself appears to do little more than pass along general information. While at one point the e-mail does state that it encourages the local to do "whatever you feel led to do regarding contacting upper union officials if you want to see HIMP continue" it also states that the information received from plant management, i.e., that it wants to pull out of HIMP, could be nothing more than a bluff. G.C. Exh. 2. As such, I agree with the Judge that the e-mail itself does not pressure any employees to take any action, and that the e-mail only passed along general information, leaving them to decide what action, if any, to take. Judge's Decision at 8.
Accordingly, upon review of the record, while the General Counsel's theory of the case was plausible, I would have found that the General Counsel did not meet its burden of proving bypass under the circumstances. Rather, the record supports the Judge's conclusion that the Union local did not act out of the pressure it felt from the Respondent's representatives e-mail. The action it did take, such as the self initiated polling and forwarding of those results, was readily explained by the desire of the local to make the Council aware that it wanted HIMP to remain in place given the uncertainties that the Circuit Court's decision presented. As such, had I found it necessary to review this case on the merits, I would have nonetheless found that on this record the General Counsel did not prove bypass.