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 1 FLRA No. 77
                                            JULY 5, 1979
 
 MR. JAMES L. NEUSTADT
 ASSISTANT GENERAL COUNSEL
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, N.W.
 WASHINGTON, D.C. 20005
 
                       RE:  AMERICAN FEDERATION OF GOVERNMENT
                            EMPLOYEES, LOCAL 2206, AFL-CIO AND
                            AMERICAN FEDERATION OF GOVERNMENT
                            EMPLOYEES, AFL-CIO, A/SLMR No. 1180,
                            Case No. 0-AS-8
 
 DEAR MR. NEUSTADT:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND
 COMPLAINANT'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
 
    THIS CASE RESULTED FROM A COMPLAINT FILED BY DONALD G. JOLLY, MARY G.
 WALDROP, AND ELLA S. PORTER (COMPLAINANTS) AGAINST THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AFGE LOCAL 2206 (THE
 UNION). THE COMPLAINT ALLEGED, IN PERTINENT PART, THAT THE UNION
 VIOLATED SECTION 204.2(A)(5) OF THE ASSISTANT SECRETARY'S STANDARDS OF
 CONDUCT REGULATIONS /1/ IMPLEMENTING SECTION 18 OF THE ORDER BY
 IMPROPERLY EXPELLING COMPLAINANTS FROM MEMBERSHIP IN THE UNION WITHOUT
 PROVIDING THEM WITH WRITTEN SPECIFIC CHARGES, NOT GIVING THEM A
 REASONABLE TIME TO PREPARE THEIR DEFENSE, AND NOT AFFORDING THEM A FULL
 AND FAIR HEARING.
 
    THE ADMINISTRATIVE LAW JUDGE (ALJ) CONCLUDED, IN RELEVANT PART, THAT
 THE UNION VIOLATED SECTION 204.2(A)(5) OF THE ASSISTANT SECRETARY'S
 REGULATIONS BY EXPELLING COMPLAINANTS AND RECOMMENDED, AMONG OTHER
 THINGS, THAT THEY BE REINSTATED TO FULL MEMBERSHIP.  THE ASSISTANT
 SECRETARY, IN AGREEMENT WITH THE ALJ, FOUND THAT THE UNION IMPROPERLY
 FAILED TO PROVIDE THE COMPLAINANTS WITH WRITTEN SPECIFIC CHARGES PRIOR
 TO THE TRIALS, AND THAT THE COMPLAINANTS' FAILURE TO ATTEND THE TRIALS
 DID NOT CONSTITUTE A WAIVER OF THEIR RIGHTS UNDER SECTION 204.2(A)(5) OF
 THE REGULATIONS.  IN SO CONCLUDING, THE ASSISTANT SECRETARY STATED:
 
    (T)HE EVIDENCE AND TESTIMONY SHOWS THAT THE ONLY DOCUMENT GIVEN TO
 (COMPLAINANTS) PRIOR TO
 
    THEIR TRIALS WAS A COPY OF THE CHARGES FILED BY A MEMBER OF LOCAL
 2206.  THOSE CHARGES MERELY
 
    QUOTED A NUMBER OF SUBSECTIONS OF THE AFGE CONSTITUTION AND CONTAINED
 NO INDICATION OF THE
 
    SPECIFIC ACTIONS WHICH ALLEGEDLY VIOLATED THOSE PROVISIONS.
 
    THE (UNION) RESPONDENTS DO NOT CONTEST THE FACT THAT THE
 (C)OMPLAINANTS WERE NOT GIVEN
 
    WRITTEN SPECIFIC CHARGES PRIOR TO THE TRIALS.  RATHER, THEY ARGUE
 THAT THE (C)OMPLAINANTS
 
    FAILED TO COOPERATE WITH THE INVESTIGATING COMMITTEE IN ITS ATTEMPTS
 TO PROVIDE INFORMATION
 
    REGARDING THE CHARGES, FAILED TO ATTEND THEIR TRIALS, AND FAILED TO
 SUPPLY ADDITIONAL
 
    INFORMATION OR ARGUMENTS FOR THE RECORD TO THE TRIAL COMMITTEE .  . .
 CONSEQUENTLY, THE
 
    RESPONDENTS URGE, THE (C)OMPLAINANTS REPUDIATED AND OBSTRUCTED THE
 CONSTITUTIONAL PROCEDURES
 
    WHICH WOULD HAVE PROVIDED THEM ALL THE SPECIFICS THEY NEEDED AND
 WOULD HAVE AFFORDED THEM
 
    THEIR RIGHTS OF DUE PROCESS.
 
    THIS ARGUMENT IS NOT CONVINCING.  THE REGULATIONS ARE CLEAR AND
 UNAMBIGUOUS ON THE
 
    REQUIREMENTS OF WRITTEN SPECIFIC CHARGES.  THE AFGE CONSTITUTION IS
 SIMILARLY CLEAR AND
 
    UNAMBIGUOUS.  /3/ . . . (I)T IS CLEARLY THE OBLIGATION OF LABOR
 ORGANIZATIONS TO PROVIDE
 
    SPECIFIC INFORMATION SO AS TO APPRISE MEMBERS OF THE CHARGES AGAINST
 THEM.  THE RESPONDENTS
 
    DID NOT FULFILL THIS OBLIGATION.
 
   .          .          .          .
 
 
    CONSEQUENTLY, I AGREE WITH THE CONCLUSION OF THE (ALJ) THAT LOCAL
 2206 VIOLATED (S)ECTION
 
    204.2(A)(5) OF THE REGULATIONS BY NOT PROVIDING THE (C)OMPLAINANTS
 WITH WRITTEN SPECIFIC
 
    CHARGES PRIOR TO THE TRIALS.  WITHOUT SPECIFIC INFORMATION AS TO THE
 CHARGES AGAINST THEM,
 
    THEY WERE UNABLE TO PREPARE THEIR DEFENSE AND WERE NOT AFFORDED A
 FULL AND FAIR HEARING.
 
    FURTHER, THE ASSISTANT SECRETARY REJECTED THE UNION'S ARGUMENT THAT
 COMPLAINANT JOLLY COULD NOT BE REINSTATED TO MEMBERSHIP BECAUSE HE HAD
 BEEN TERMINATED FROM FEDERAL EMPLOYMENT AND THUS NO LONGER MET THE
 MEMBERSHIP REQUIREMENTS SET FORTH IN AFGE'S CONSTITUTION, STATING:
 
    (J)OLLY WAS TERMINATED . . . OVER ONE YEAR BEFORE HIS EXPULSION ON
 DIFFERENT GROUNDS
 
    . . . DURING THIS PERIOD, THE RESPONDENTS ACCEPTED HIS DUES,
 CONSIDERED HIM TO BE A MEMBER,
 
    AND TOOK NO ACTION TO HAVE HIM REMOVED FROM MEMBERSHIP BECAUSE OF HIS
 EMPLOYMENT STATUS.  NO
 
    EXPLANATION IS MADE AS TO WHY (THEY) DID NOT TAKE ANY ACTION DURING
 OR AFTER THIS PERIOD OR
 
    WHAT FACTORS IN JOLLY'S EMPLOYMENT SITUATION MAY HAVE CHANGED SINCE
 HIS EXPULSION THAT RELATE
 
    TO HIS ELIGIBILITY FOR MEMBERSHIP.
 
    UNDER THESE CIRCUMSTANCES, THE RESPONDENTS HAVE NOT PRESENTED
 CONVINCING EVIDENCE TO SHOW
 
    THAT JOLLY IS NOT AT THE PRESENT TIME ELIGIBLE FOR MEMBERSHIP.  THEY
 HAD CHOSEN NOT TO
 
    INTERPRET AND APPLY THE CONSTITUTIONAL REQUIREMENTS TO JOLLY
 DIRECTLY, AND WE CANNOT DO SO IN
 
    THE CONTEXT OF REVIEWING HIS EXPULSION ON DIFFERENT GROUNDS.
 
    THE FACTS INDICATE THAT JOLLY WAS CONSIDERED TO BE A MEMBER UNTIL THE
 TIME OF HIS
 
    EXPULSION, AND WE HAVE CONCLUDED THAT HIS EXPULSION WAS IN VIOLATION
 OF (S)ECTION 204.2(A)(5)
 
    OF THE REGULATIONS.  IT IS ALSO OUR CONCLUSION THAT THE PROVISIONS OF
 (S)ECTION 18 OF THE
 
    EXECUTIVE ORDER AND PART 204 OF THE REGULATIONS ARE NOT CONFINED TO
 FEDERAL EMPLOYEES, BUT ARE
 
    APPLICABLE TO ALL MEMBERS OF LABOR ORGANIZATIONS WHICH ARE SUBJECT TO
 THE EXECUTIVE
 
    ORDER.  THE AUTHORITY TO ORDER REINSTATEMENT OF AN IMPROPERLY
 EXPELLED MEMBER IS THEREFORE
 
    WELL WITHIN THE PURVIEW OF THE EXECUTIVE ORDER.
 
    THE ASSISTANT SECRETARY ACCORDINGLY ORDERED THE UNION TO CEASE AND
 DESIST FROM THE CONDUCT FOUND VIOLATIVE AND TO TAKE CERTAIN AFFIRMATIVE
 REMEDIAL ACTIONS, INCLUDING REINSTATING COMPLAINANTS TO FULL MEMBERSHIP,
 AND CONSIDERING THEM AS FULL MEMBERS THROUGHOUT THE PERIOD OF THEIR
 EXPULSIONS WITH ALL RIGHTS AND PRIVILEGES FLOWING THEREFROM.
 
    IN THE UNION'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
 SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS IN THAT "NO WEIGHT WAS
 GIVEN TO THE CLEAR RECORD EVIDENCE SHOWING THE COMPLAINANTS'
 DELIBERATELY EVASIVE ACTIONS, ESPECIALLY THOSE BEFORE (LOCAL 2206'S)
 INVESTIGAT(ING) COMMITTEE, WHICH PRECLUDED NOTICE OF THE SPECIFIC
 CHARGES AGAINST THEM . . .," AND THAT THE ASSISTANT SECRETARY THEREFORE
 IMPROPERLY SET ASIDE COMPLAINANTS' EXPULSIONS WHICH STEMMED FROM
 "APPROPRIATE DUE PROCESS DISCIPLINARY PROCEEDINGS CONDUCTED IN
 ACCORDANCE WITH AFGE'S CONSTITUTIONAL PROCEDURES." IT IS FURTHER ALLEGED
 THAT THE ASSISTANT SECRETARY'S DECISION "RAISES A MAJOR POLICY ISSUE AS
 TO WHETHER THE CLEAR AND UNEQUIVOCAL LANGUAGE OF A UNION'S CONSTITUTION
 PROHIBITING MEMBERSHIP TO NON-EMPLOYEES PREVENTS REINSTATEMENT OF FORMER
 EMPLOYEES TO MEMBERSHIP, AND SPECIFICALLY FOR (C)OMPLAINANT JOLLY, A
 NON-EMPLOYEE."
 
    IN THE AUTHORITY'S OPINION, THE UNION'S PETITION FOR REVIEW OF THE
 ASSISTANT SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION
 2400.3 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY
 REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES.  THAT IS, THE DECISION
 OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR
 RAISE ANY MAJOR POLICY ISSUES.
 
    WITH RESPECT TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S
 DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
 HIS DECISION IN THE CIRCUMSTANCES OF THIS CASE.  IN THIS REGARD, THE
 APPEAL FAILS TO SET FORTH ANY MATERIAL EVIDENCE THAT THE ASSISTANT
 SECRETARY DID NOT CONSIDER IN REACHING HIS DECISION, BUT INSTEAD
 CONSTITUTES IN EFFECT NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT
 SECRETARY'S DETERMINATION THAT THE UNION VIOLATED SECTION 204.2(A)(5) OF
 THE ASSISTANT SECRETARY'S REGULATIONS IMPLEMENTING SECTION 18 OF THE
 ORDER BY NOT PROVIDING THE COMPLAINANTS WITH WRITTEN SPECIFIC CHARGES
 PRIOR TO THEIR TRIALS, AND THEREFORE PROVIDES NO BASIS FOR AUTHORITY
 REVIEW.
 
    WITH REGARD TO THE FURTHER CONTENTION THAT THE LANGUAGE IN THE
 UNION'S CONSTITUTION PROHIBITING MEMBERSHIP TO NON-EMPLOYEES PREVENTED
 REINSTATEMENT TO MEMBERSHIP OF FORMER EMPLOYEES, ESPECIALLY COMPLAINANT
 JOLLY, IN THE AUTHORITY'S OPINION NO MAJOR POLICY ISSUE IS PRESENTED
 WARRANTING REVIEW.  IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THE
 ASSISTANT SECRETARY'S FACTUAL DETERMINATION THAT JOLLY HAD BEEN
 TERMINATED FROM FEDERAL EMPLOYMENT OVER A YEAR BEFORE HIS EXPULSION FROM
 THE UNION ON OTHER GROUNDS, DURING WHICH TIME THE UNION "ACCEPTED HIS
 DUES, CONSIDERED HIM TO BE A MEMBER, AND TOOK NO ACTION TO HAVE HIM
 REMOVED FROM MEMBERSHIP BECAUSE OF HIS EMPLOYMENT STATUS." ACCORDINGLY,
 THE UNION'S RELIANCE ON THE LANGUAGE OF ITS CONSTITUTION CONSTITUTES
 ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING
 THAT, "(U)NDER THE CIRCUMSTANCES, THE (UNION HAS) NOT PRESENTED
 CONVINCING EVIDENCE TO SHOW THAT JOLLY IS NOT . . . ELIGIBLE FOR
 MEMBERSHIP" AND THEREFORE PRESENTS NO BASIS FOR REVIEW.
 
    SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
 AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
 THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.3 OF THE
 AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  ACCORDINGLY, THE PETITION FOR REVIEW IS
 HEREBY DENIED, AND THE REQUEST FOR A STAY IS ALSO DENIED.  /2/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  C. E. CHAMBLEE
 
    C. ROLNICK
 
    LABOR
 
    A/SLMR
 
    LABOR
 
    /1/ SECTION 204.2(A)(5) PROVIDES, IN PERTINENT PART:
 
    (5) SAFEGUARDS AGAINST IMPROPER DISCIPLINARY ACTION.  (A) NO MEMBER
 OF ANY LABOR ORGANIZATION MAY BE FINED, SUSPENDED, EXPELLED, OR
 OTHERWISE DISCIPLINED, EXCEPT FOR NONPAYMENT OF DUES BY SUCH
 ORGANIZATION OR BY ANY OFFICER THEREOF UNLESS SUCH MEMBER HAS BEEN (I)
 SERVED WITH WRITTEN SPECIFIC CHARGES;  (II) GIVEN A REASONABLE TIME TO
 PREPARE HIS DEFENSE;  (III) AFFORDED A FULL AND FAIR HEARING.
 
    (B) ANY PROVISION OF THE CONSTITUTION AND BYLAWS OF ANY LABOR
 ORGANIZATION WHICH IS INCONSISTENT WITH THE PROVISIONS OF THIS SECTION
 SHALL NOT BE A DEFENSE TO ANY PROCEEDING INSTITUTED AGAINST THE LABOR
 ORGANIZATION UNDER THIS PART OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    /3/ UNDER ARTICLE XIV, SECTION 3 OF THE AFGE CONSTITUTION ADOPTED IN
 1974, IF THE INVESTIGATING COMMITTEE FINDS PROBABLE CAUSE AND CANNOT
 SETTLE THE MATTER INFORMALLY, THE ACCUSED ARE TO BE SERVED WITH WRITTEN
 CHARGES BY REGISTERED OR CERTIFIED MAIL WHICH "SHALL CONTAIN AN
 ALLEGATION OF THE FACTS DESCRIBING THE NATURE OF THE OFFENSES CHARGED."
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
 
 

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