AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2060, AFL-CIO and IRA SIEGELMAN,

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2060, AFL-CIO Respondent
and IRA SIEGELMAN, AN INDIVIDUAL Charging Party	Case No. SF-CO-01-0152

Vanessa Lim, Esquire For the General Counsel
Ms. Joyce James For the Respondent Before: WILLIAM B. DEVANEY Administrative Law Judge

On April 18, 2001, General Counsel mailed, and served, a Motion For Summary Judgment, received on April 23, 2001. General Counsel's Motion was filed pursuant to § 2423.27 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.27; included the following attached Exhibits: General Counsel Exhibit 1 (charge filed on December 4, 2000)(hereinafter, General Counsel Exhibits will be designated, "G.C. Exh.", followed by the number); G.C. Exh. 2 (Amended charge, filed on February 23, 2001); G.C. Exh. 3 (Complaint and Notice of Hearing (hearing was set for May 22, 2001); G.C. Exh. 4 (Respondent's reply to Complaint); and G.C. Exh. 5 (affidavit of Ira Siegelman with attached print-outs of electronic messages between Mr. Siegelman and Ms. James, including her message of November 27, 2000 to Mr. Siegelman in which she stated, in part, ". . . the only growing number of persons who are complaining are the freeloading vermin who do not pay dues . . .", and, ". . . you can come to me for assistance if you have the nerve. Joyce James", President, AFGE L-2060). Accompanying the Motion was a Proposed Order and Notice, together with General Counsel's Brief in Support of the Motion For Summary Judgment.

On May 2, 2001, Respondent mailed and served an, "Opposition To The Motion For Summary Judgment" dated April 27, 2001, which was received on May 7, 2001. Respondent's Opposition was accompanied by a number of electronic mail messages including responses to Ms. James' request for assistance from Mr. Stanley L. Jaramillo; Ms. Kay Cappilla; Mr. Victor J. Ambe; Mr. Jack Sarjeant; Ms. Caleen Gillette; Mr. Joseph A. Abrano; Mr. Gerardo T. Samaniego; and Mr. Stephen M. Gangi.

1. The American Federation of Government Employees, Local 2060, AFL-CIO (hereinafter, "Respondent"), is a labor organization within the meaning of 5 U.S.C. § 7103(a)(4) and is the exclusive representative of certain employees at the Defense Contract Management Agency, Canoga Park, California (Complaint, G.C. Exh. 3, Par. 2).

2. The charge was filed on December 4, 2000 (G.C. Exh. 1); an amended charge was filed on February 23, 2001 (G.C. Exh. 2) and the Complaint and Notice of Hearing issued February 27, 2001 (G.C. Exh. 3).

3. During the period covered by the Complaint, Ms. Joyce James was President of Respondent and was acting on its behalf (Complaint, G.C. Exh. 3, Pars. 6 & 7).

4. During the time covered by the Complaint, the Charging Party, Ira Siegelman, was an employee under 5 U.S.C. § 7103(a)(2) and was employed in the bargaining unit represented by Respondent (Complaint, G.C. Exh. 3, Par. 8); but was not a dues paying member of Respondent (Complaint, G.C. Exh. 3, Par. 9).

5. On November 27, 2000, Respondent, by Ms. Joyce James, sent an e-mail to Mr. Siegelman in which she referred to non-dues paying employees as, "freeloading vermin" and stated that Mr. Siegelman could come to her, James, for assistance if he, "had the nerve" (Complaint, G.C. Exh. 3, Par. 10; G.C. Exh. 5, Affidavit of Mr. Ira Siegelman, Attachment).

6. On April 3, 2001, Respondent submitted a letter in response to the Complaint (G.C. Exh. 4). In its response, Respondent did not respond to the specific allegations of the Complaint; did not deny any factual allegation of the Complaint; and concedes that the statements alleged in Paragraph 5 above (Par. 10 of the Complaint) were made, stating,

". . . while admittedly the statement made by Ms James was a poor choice of words . . ." (G.C. Exh. 4, second page).

7. In its Opposition To The Motion For Summary Judgment, Respondent does not deny its failure to respond to the allegations of the Complaint; does not deny any allegation of the Complaint; but, rather, asserts that Local 2060's policy is, ". . . to assist all bargaining unit employees." (Opposition, p. 2); that Mr. Siegelman "baited the Union . . ." (Opposition, p. 2); asserts that she, James, ". . . did not refer to all non-union members of the bargaining unit as freeloading vermin" (Opposition, p. 2); and the enclosed, "letters from several non-dues paying members who are members of my bargaining unit who have been helped by my Local and me personally so you can see what I say is true." (Opposition, p. 2).

The issue in this case is whether the statements made by Union President James in her November 27, 2000 e-mail to unit employee Siegelman would tend to interfere with, restrain, or coerce an employee in the exercise of any right under the Statute. The standard for determining whether a union's statement violates § 7116(b)(1) is an objective standard based on whether, under the circumstances, an employee reasonably could have drawn a coercive inference from the statement. National Air Traffic Controllers Association, MEBA/AFL-CIO, 55 FLRA 601 (1999)(NATCA). Thus, the standard is similar to the standard developed for § 7116(a)(1) violations. The subjective perception of the employee and the subjective intent of the union official are irrelevant. id. The Authority has made clear that where the union conveys the impression that it will treat nonmembers differently than members, a violation § 16(b)(1) will be found. NATCA, supra; American Federation of Government Employees, Local 987, Warner Robins, Georgia, 35 FLRA 720 (1990).

James' statements in the November 27, 2000 e-mail to Siegelman clearly create the impression that the Union will treat Siegelman and other nonmembers differently than members. Although James begins her message by stating that if Siegelman came to the Union for assistance she would by law be expected to assist Siegelman, her begrudging concession is immediately countermanded by the comment that "the only growing number of persons who are complaining are the freeloading vermin who do not pay dues and who are the first in line to complain about others," a statement which conveys her utter disregard for Siegelman and the other nonmember employees. When combined with her challenge to "come to me for assistance if you have the nerve," the thrust of her message is undeniable--Siegelman and other non-dues paying bargaining unit employees will not receive the same assistance as members. The only conclusion a reasonable employee could draw from James' statements is that he, or she, must join the Union in order to be fairly and equally represented.

James' November 27, 2000 e-mail was part of a series of e-mail messages between James and Siegelman in which Siegelman was expressing his disagreement with the way the Union was handling the representation of another bargaining unit employee and James was defending the Union's actions. The exchange between Siegelman and James became hostile and accusatory as the messages continued. However, James went beyond the bounds of mere disagreement when, in the heat of the moment, she called Siegelman, and other non-dues paying employees who complained about the Union, vermin. James' further comment that Siegelman could come to