[ v05 p126 ]
05:0126(21)CA
The decision of the Authority follows:
5 FLRA No. 21
DEFENSE LOGISTICS AGENCY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-294
DEFENSE LOGISTICS AGENCY,
DEFENSE PROPERTY DISPOSAL SERVICE,
DEFENSE PROPERTY DISPOSAL REGION,
MEMPHIS, TENNESSEE, and
DEFENSE LOGISTICS AGENCY,
DEFENSE PROPERTY DISPOSAL SERVICE,
DEFENSE PROPERTY DISPOSAL REGION,
OGDEN, UTAH, and
DEFENSE LOGISTICS AGENCY,
DEFENSE PROPERTY DISPOSAL SERVICE,
DEFENSE PROPERTY DISPOSAL REGION,
COLUMBUS, OHIO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO,
AND METAL TRADES COUNCIL, AFL-CIO
Charging Parties
Case No. 3-CA-338
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENTS HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS, AND
RECOMMENDING THAT THEY CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER WERE FILED BY THE RESPONDENT
DEFENSE LOGISTICS AGENCY; BY THE CHARGING PARTY, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO; AND BY THE GENERAL COUNSEL.
THEREFORE, PURSUANT TO SEC. 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SEC. 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE
SUBJECT CASE, INCLUDING THE PARTIES' EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, AS MODIFIED BELOW.
IN CASE NO. 3-CA-294, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
RESPONDENT DEFENSE LOGISTICS AGENCY (DLA) VIOLATED SECTION 7116(A)(1)
AND (5) OF THE STATUTE BY REFUSING TO ACCORD RECOGNITION TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE) AS THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, AND BY REFUSING AFGE'S REQUEST TO
NEGOTIATE IN GOOD FAITH AS REQUIRED BY THE STATUTE. IN SO FINDING, THE
ADMINISTRATIVE LAW JUDGE SPECIFICALLY REJECTED DLA'S CONTENTION THAT
AFGE IS NOT A "LABOR ORGANIZATION" WITHIN THE MEANING OF SECTION
7103(A)(4) OF THE STATUTE, BUT REFUSED TO PASS UPON DLA'S FURTHER
CONTENTION THAT ITS CONCEDED REFUSAL TO RECOGNIZE AND BARGAIN WITH AFGE
WAS JUSTIFIED BY AFGE'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF
SECTION 7111(E) OF THE STATUTE. /1/ IN THIS LATTER REGARD, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT "A LABOR ORGANIZATION'S
COMPLIANCE WITH THE PROVISIONS OF (S)ECTION 7111(E) OF THE STATUTE IS AN
ADMINISTRATIVE MATTER WHICH IS NOT LITIGABLE IN AN UNFAIR LABOR PRACTICE
PROCEEDING" AND THAT "A QUESTION REGARDING A LABOR ORGANIZATION'S
COMPLIANCE WITH THE STANDARDS OF CONDUCT REQUIREMENTS BELONGS BEFORE
THE
ASSISTANT SECRETARY WHO ISSUED IMPLEMENTING REGULATIONS (PURSUANT TO
SECTION 7120(D) OF THE STATUTE) ON JULY 26, 1979 AT 5 C.F.R. PARTS
207-209." /2/ THE AUTHORITY EXPRESSLY ADOPTS THE FOREGOING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS FURTHER OBSERVED IN THIS CONNECTION THAT THE AUTHORITY IN THE
PREAMBLE TO ITS FINAL REGULATIONS (45 F.R. 3482 (1980)), STATED THAT:
"WITH RESPECT TO THE MANNER IN WHICH LABOR ORGANIZATIONS' ROSTERS OF
OFFICERS AND
REPRESENTATIVES, CONSTITUTIONS AND BYLAWS, AND STATEMENTS OF
OBJECTIVES WOULD BE OBTAINED,
SINCE SUCH MATTERS ARE FILED WITH THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT
RELATIONS, WHO HAS RESPONSIBILITY UNDER 5 U.S.C. 7120 FOR
ADMINISTERING THE STANDARDS OF
CONDUCT FOR LABOR ORGANIZATIONS, A SUGGESTED REQUIREMENT THAT THE
IDENTICAL AND READILY
AVAILABLE INFORMATION BE FILED WITH THE AUTHORITY WAS DEEMED MERELY
DUPLICATIVE. . ."
ALSO, IN REPRESENTATION PETITIONS FILED UNDER 5 C.F.R. 2422 (1980), A
LABOR ORGANIZATION IS REQUIRED TO CERTIFY THAT ". . . IT HAS SUBMITTED
TO THE ACTIVITY OR AGENCY AND THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS A ROSTER OF ITS OFFICERS AND REPRESENTATIVES,
A COPY OF ITS CONSTITUTION AND BYLAWS AND A STATEMENT OF ITS
OBJECTIVES." IN THE EVENT A QUESTION IS RAISED IN THE REPRESENTATION
CASE CONCERNING THE FILING OF THE DOCUMENTS WITH THE ASSISTANT SECRETARY
ADVERTED TO IN SECTION 7111(E) OF THE STATUTE, THE MATTER SHALL BE
RESOLVED IN AN APPROPRIATE MANNER ADMINISTRATIVELY BY THE REGIONAL
DIRECTOR.
IN CASE NO. 3-CA-338, THE ADMINISTRATIVE LAW JUDGE FURTHER FOUND THAT
THE ADMITTED FAILURE AND REFUSAL OF THREE COMPONENTS WITHIN DLA TO HONOR
42 UNIT EMPLOYEES' SIGNED DUES ALLOTMENT AUTHORIZATIONS IN FAVOR OF
AFGE, THEIR EXCLUSIVE BARGAINING REPRESENTATIVE, CONSTITUTED
NONCOMPLIANCE WITH SECTION 7115(A) OF THE STATUTE AND A VIOLATION OF
SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE. THE ADMINISTRATIVE LAW
JUDGE SPECIFICALLY RELIED UPON THE CLEAR LANGUAGE OF SECTION 7115(A) OF
THE STATUTE /3/ AND THE RELEVANT LEGISLATIVE HISTORY OF THAT PROVISION
/4/ IN CONCLUDING THAT AN AGENCY MUST HONOR AN EMPLOYEE'S WRITTEN
AUTHORIZATION TO HAVE PERIODIC DUES DEDUCTED AND PAID TO THE EXCLUSIVE
REPRESENTATIVE OF THE UNIT. IN SO CONCLUDING, THE ADMINISTRATIVE LAW
JUDGE FURTHER STATED THAT RESPONDENT'S UNILATERAL REFUSAL TO CONTINUE TO
RECOGNIZE AFGE AS THE EMPLOYEES' EXCLUSIVE BARGAINING REPRESENTATIVE
"CAN NOT BE USED AS A BASIS FOR ASSERTING AS A DEFENSE THAT AN AGENCY
MAY NOT CHECK OFF DUES TO A LABOR ORGANIZATION WHICH HAS NOT BEEN
"'RECOGNIZED'." THE AUTHORITY FULLY AGREES WITH AND THEREFORE ADOPTS THE
FOREGOING FINDINGS AND CONCLUSIONS OF THE ADMINISTRATIVE LAW JUDGE.
HOWEVER, THE AUTHORITY DISAGREES, IN PART, WITH THE EXTENT OF THE
REMEDY RECOMMENDED BY THE ADMINISTRATIVE LAW JUDGE IN CASE NO. 3-CA-338.
HAVING FOUND THAT RESPONDENTS VIOLATED THE STATUTORY MANDATE TO HONOR
THE UNIT EMPLOYEES' VALID DUES DEDUCTION AUTHORIZATIONS, THE
ADMINISTRATIVE LAW JUDGE ORDERED RESPONDENTS TO CEASE AND DESIST FROM
SUCH UNLAWFUL CONDUCT AND, "(C)OMMENCING WITH THE FIRST PAY PERIOD AFTER
THE DATE OF THIS ORDER, (TO) DEDUCT REGULAR AND PERIODIC DUES FROM THE
PAY OF EMPLOYEES . . . WHO HAVE EXECUTED VALID WRITTEN ALLOTMENTS AND
ALSO FROM ANY OTHER EMPLOYEE IN THE UNIT WHO MAY IN THE FUTURE MAKE
VOLUNTARY ALLOTMENTS FOR SUCH PURPOSE, AND REMIT SUCH DUES TO THE
EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO." HOWEVER, CITING TWO CASES ARISING AND DECIDED UNDER EXECUTIVE
ORDER 11491, AS AMENDED, THE ADMINISTRATIVE LAW JUDGE DECLINED TO ORDER
RESPONDENTS TO REIMBURSE AFGE FOR ANY LOSS IT MAY HAVE SUSTAINED AS A
RESULT OF THE UNLAWFUL REFUSAL TO HONOR VALID DUES DEDUCTION
AUTHORIZATIONS. WHILE HE STATED THAT SUCH REIMBURSEMENT ORDER WOULD BE
A REASONABLE WAY OF RESTORING THE STATUS QUO TO AFGE WHICH, BUT FOR
RESPONDENTS' UNLAWFUL ACTION, WOULD HAVE RECEIVED AND UTILIZED THE DUES
REVENUE IN FURTHERANCE OF ITS DUTIES AS EXCLUSIVE REPRESENTATIVE OF THE
UNIT EMPLOYEES, THE ADMINISTRATIVE LAW JUDGE NEVERTHELESS CONCLUDED THAT
HE WAS UNABLE TO GRANT SUCH A REMEDY INASMUCH AS HE WAS BOUND BY
DECISIONS OF THE ASSISTANT SECRETARY UNTIL THEY WERE OVERRULED OR FOUND
DISTINGUISHABLE BY THE AUTHORITY. /5/ FOR THE REASONS SET FORTH BELOW,
THE AUTHORITY CONCLUDES THAT THE REMEDIAL ORDER RECOMMENDED BY THE
ADMINISTRATIVE LAW JUDGE HEREIN SHOULD BE MODIFIED TO REQUIRE
RESPONDENTS TO REIMBURSE AFGE IN AN AMOUNT EQUAL TO THE DUES THAT AFGE
WOULD HAVE RECEIVED BUT DID NOT RECEIVE AS A RESULT OF THE UNLAWFUL
REFUSAL TO HONOR THE EMPLOYEES' VALID DUES DEDUCTION AUTHORIZATIONS.
SECTION 7118(A)(7) OF THE STATUTE PROVIDES, IN PART, THAT "(I) THE
AUTHORITY . . . DETERMINES . . . THAT THE AGENCY OR LABOR ORGANIZATION
NAMED IN THE COMPLAINT HAS ENGAGED IN OR IS ENGAGING IN AN UNFAIR LABOR
PRACTICE, (IT) . . . SHALL ISSUE . . . AN ORDER--
(A) TO CEASE AND DESIST FROM ANY SUCH UNFAIR LABOR PRACTICE IN WHICH
THE AGENCY OR LABOR
ORGANIZATION IS ENGAGED:
(B) REQUIRING THE PARTIES TO RENEGOTIATE A COLLECTIVE BARGAINING
AGREEMENT IN ACCORDANCE
WITH THE ORDER OF THE AUTHORITY AND REQUIRING THAT THE AGREEMENT, AS
AMENDED, BE GIVEN
RETROACTIVE EFFECT;
(C) REQUIRING REINSTATEMENT OF AN EMPLOYEE WITH BACKPAY IN ACCORDANCE
WITH SECTION 5596 OF
THIS TITLE; OR
(D) INCLUDING ANY COMBINATION OF THE ACTIONS DESCRIBED IN
SUBPARAGRAPHS (A) THROUGH (C) OF
THIS PARAGRAPH OR SUCH OTHER ACTION AS WILL CARRY OUT THE PURPOSE OF
THIS CHAPTER.
IN THE AUTHORITY'S VIEW, IT WOULD PROMOTE THE PURPOSES OF THE STATUTE
IN THE CIRCUMSTANCES OF THE INSTANT CASE TO MODIFY THE REMEDIAL ORDER
RECOMMENDED BY THE ADMINISTRATIVE LAW JUDGE SO AS TO REQUIRE RESPONDENTS
TO REIMBURSE AFGE IN THE MANNER STATED ABOVE. AS PREVIOUSLY NOTED
(SUPRA N. 4), THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 7115(A)
CLEARLY REFLECT THE INTENT OF CONGRESS TO GIVE EMPLOYEES IN UNITS OF
EXCLUSIVE RECOGNITION THE SOLE DISCRETION WHETHER TO AUTHORIZE UNION
DUES DEDUCTIONS FROM THEIR PAY, AND TO REQUIRE AGENCIES TO HONOR SUCH
AUTHORIZATIONS. IN THE WORDS OF THE HOUSE COMMITTEE REPORT, "(I)F THE
EMPLOYEE DECIDES TO HAVE DUES WITHHELD, THE AGENCY MUST HONOR THAT
DECISION." IN OUR VIEW, SUCH RIGHT TO HAVE UNION DUES WITHHELD -- NO
LONGER DEPENDENT UPON THE AGENCY'S AGREEMENT TO DO SO AS PART OF A
NEGOTIATED AGREEMENT WITH THE EXCLUSIVE REPRESENTATIVE -- IS AN INTEGRAL
PART OF AN EMPLOYEE'S RIGHT UNDER SECTION 7102 OF THE STATUTE "TO FORM,
JOIN, OR ASSIST (A) LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH
ACTIVITY . . . ." MOREOVER, IT IS CONSISTENT WITH THE FINDINGS AND
PURPOSE OF CONGRESS AS STATED IN SECTION 7101 OF THE STATUTE, MORE
SPECIFICALLY THAT "THE STATUTORY PROTECTION OF THE RIGHT OF EMPLOYEES TO
ORGANIZE, BARGAIN COLLECTIVELY, AND PARTICIPATE THROUGH LABOR
ORGANIZATIONS OF THEIR OWN CHOOSING . . . SAFEGUARDS THE PUBLIC
INTEREST, . . . CONTRIBUTES TO THE EFFECTIVE CONDUCT OF PUBLIC BUSINESS,
AND . . . FACILITATES AND ENCOURAGES THE AMICABLE SETTLEMENTS OF
DISPUTES BETWEEN EMPLOYEES AND THEIR EMPLOYERS INVOLVING CONDITIONS OF
EMPLOYMENT . . . ."
ORDER
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT RESPONDENT, DEFENSE LOGISTICS AGENCY, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO RECOGNIZE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, AS THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
(B) REFUSING TO NEGOTIATE IN GOOD FAITH WITH AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR WITH ANY
OTHER EXCLUSIVE
REPRESENTATIVE.
(C) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES BY
REFUSING TO RECOGNIZE AND
NEGOTIATE IN GOOD FAITH WITH AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH AMERICAN
FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, AS THE EXCLUSIVE REPRESENTATIVE FOR
ITS EMPLOYEES, IN TWO
NATIONWIDE CONSOLIDATED UNITS OF (1) NON-PROFESSIONAL EMPLOYEES AND
(2) PROFESSIONAL
EMPLOYEES, AS MORE FULLY DESCRIBED IN THE CERTIFICATIONS ISSUED IN
CASE NO. 22-09044 (UC) ON
MARCH 6, 1979, AND THEREAFTER AMENDED ON MAY 9, MAY 12, MAY 23 AND
JUNE 1.
(B) POST AT ALL FACILITIES AND INSTALLATIONS OF THE DEFENSE LOGISTICS
AGENCY, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX A" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE DEFENSE
LOGISTICS AGENCY, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED WITH ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR OF REGION III, 1133 15TH STREET, N.W., ROOM 300,
WASHINGTON, D.C. 20005, IN
WRITING, WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKE
TO COMPLY HEREWITH.
ORDER
(CASE NO. 3-CA-338)
PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT RESPONDENTS DEFENSE LOGISTICS AGENCY, DEFENSE PROPERTY DISPOSAL
SERVICE, DEFENSE PROPERTY DISPOSAL REGION, MEMPHIS, TENNESSEE; OGDEN,
UTAH; AND COLUMBUS, OHIO SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO RECOGNIZE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, AND THE METAL
TRADES COUNCIL, AFL-CIO, THE
JOINTLY CERTIFIED EXCLUSIVE REPRESENTATIVE, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
(B) REFUSING TO NEGOTIATE IN GOOD FAITH WITH AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, OR METAL
TRADES COUNCIL, AFL-CIO,
THE JOINTLY CERTIFIED EXCLUSIVE REPRESENTATIVE, OR WITH ANY OTHER
EXCLUSIVE REPRESENTATIVE.
(C) REFUSING TO COMPLY WITH THE PROVISIONS OF SECTION 7115 OF THE
FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE BY REFUSING TO ACCEPT AND HONOR
VALID WRITTEN ASSIGNMENTS
FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR AND PERIODIC DUES TO
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
(D) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES BY
REFUSING TO RECOGNIZE AND
NEGOTIATE IN GOOD FAITH WITH THE EXCLUSIVE REPRESENTATIVE, AND BY
REFUSING TO ACCEPT AND HONOR
WRITTEN ASSIGNMENTS FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR
AND PERIODIC DUES TO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE.
(E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH AMERICAN
FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, AS EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, JOINTLY WITH THE
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, AND THE METAL
TRADES COUNCIL, AFL-CIO, IN
THE FOLLOWING APPROPRIATE UNITS:
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
COLUMBUS, OHIO, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
MEMPHIS, TENNESSEE,
EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND
SUPERVISORS AS DEFINED IN THE
ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
OGDEN, UTAH, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
(B) REIMBURSE THE EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, IN AN AMOUNT EQUAL TO THE REGULAR AND PERIODIC DUES IT WOULD
HAVE RECEIVED FROM THE
PAY OF EMPLOYEES NAMED IN APPENDIX C BUT DID NOT RECEIVE AS A RESULT
OF THE UNLAWFUL REFUSAL
TO HONOR THE EMPLOYEES' VALID WRITTEN ALLOTMENTS FOR SUCH PURPOSE.
(C) COMMENCING WITH THE FIRST PAY PERIOD AFTER THE DATE OF THIS
ORDER, DEDUCT REGULAR AND
PERIODIC DUES FROM THE PAY OF EMPLOYEES NAMED IN APPENDIX C WHO HAVE
EXECUTED VALID WRITTEN
ALLOTMENTS AND ALSO FROM ANY OTHER EMPLOYEE IN THE UNIT WHO MAY IN
THE FUTURE MAKE VOLUNTARY
ALLOTMENTS FOR SUCH PURPOSE, AND REMIT SUCH DUES TO THE EXCLUSIVE
REPRESENTATIVE, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
(D) POST AT ALL FACILITIES AND INSTALLATIONS OF THE DEFENSE LOGISTICS
AGENCY, DEFENSE
PROPERTY DISPOSAL SERVICE, DEFENSE PROPERTY DISPOSAL REGION, MEMPHIS,
TENNESSEE; OGDEN,
UTAH; AND COLUMBUS, OHIO, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX B" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE
SIGNED BY THE COMMANDING GENERAL OF THE DEFENSE PROPERTY DISPOSAL
SERVICE, AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDING GENERAL SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED WITH ANY
OTHER MATERIAL.
(E) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR OF REGION III, 1133 15TH STREET, N.W., ROOM 300,
WASHINGTON, D.C. 20005, IN
WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREWITH.
ISSUED, WASHINGTON, D.C., FEBRUARY 12, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES AT
DEFENSE LOGISTICS AGENCY BY REFUSING TO RECOGNIZE AND NEGOTIATE IN GOOD
FAITH WITH THEIR EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO.
WE WILL, UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AS EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES IN TWO NATIONWIDE CONSOLIDATED UNITS OF
(1) NON-SUPERVISORY NON-PROFESSIONAL EMPLOYEES, AND (2) NON-SUPERVISORY
PROFESSIONAL EMPLOYEES, AS MORE FULLY DESCRIBED IN THE ATTACHED UNIT
DESCRIPTIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C., 20005,
AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
APPENDIX B
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO, OR METAL TRADES COUNCIL, AFL-CIO,
THE JOINTLY CERTIFIED EXCLUSIVE REPRESENTATIVE, OR WITH ANY OTHER
EXCLUSIVE REPRESENTATIVE.
WE WILL NOT REFUSE TO RECOGNIZE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO,
AND METAL TRADES COUNCIL, AFL-CIO, AS THE JOINTLY CERTIFIED EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, BY REFUSING TO ACCEPT AND HONOR VALID
WRITTEN ASSIGNMENTS FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR AND
PERIODIC DUES TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, AND COERCE OUR EMPLOYEES BY
REFUSING TO RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH THE EXCLUSIVE
REPRESENTATIVE, AND BY REFUSING TO ACCEPT AND HONOR VALID WRITTEN
ASSIGNMENTS FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR AND PERIODIC
DUES TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO, AND METAL TRADES COUNCIL, AFL-CIO,
AS EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES IN THE FOLLOWING
APPROPRIATE UNITS:
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
COLUMBUS, OHIO, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
MEMPHIS, TENNESSEE,
EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND
SUPERVISORS AS DEFINED IN THE
ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
OGDEN, UTAH, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
WE WILL REIMBURSE THE EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, IN AN AMOUNT EQUAL TO THE REGULAR AND
PERIODIC DUES IT WOULD HAVE RECEIVED FROM THE PAY OF ALL EMPLOYEES WHO
EXECUTED VALID WRITTEN ALLOTMENTS FOR SUCH PURPOSE BUT DID NOT RECEIVE
AS A RESULT OF THE UNLAWFUL REFUSAL TO HONOR THE EMPLOYEES' VALID
WRITTEN ALLOTMENTS FOR THAT PURPOSE.
WE WILL DEDUCT REGULAR AND PERIODIC DUES FROM THE PAY OF OUR
EMPLOYEES WHO HAVE EXECUTED VALID WRITTEN ALLOTMENTS AND ALSO FROM ANY
OTHER EMPLOYEE IN THE UNITS WHO MAY IN THE FUTURE MAKE VOLUNTARY
ALLOTMENTS FOR SUCH PURPOSE, AND REMIT SUCH DUES TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR TO ANY OTHER EXCLUSIVE
REPRESENTATIVE DESIGNATED FOR THIS PURPOSE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FO4 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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C. 20005,
AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
APPENDIX C
NAMES OF EMPLOYEES WHO EXECUTED VALID WRITTEN ASSIGNMENTS OF REGULAR
AND PERIODIC DUES FOR PAYMENT TO AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO.
JAMES FELDER ROBERT B. BRINSON
WILLIAM HIGDON JACK BURMAN
RICHARD LARSEN RAYMOND GURULE
JACK BERRYMAN LEROY JACKSON
HOWARD J. BAKER WILLIE D. MULLEN
FLOYD BROOKS THEODORE J. POPLARCHIK
WILLIAM D. CARTER CRAIG E. RUSSELL
LOVELESS COFIELD FRANK J. SCHMIDT
MARY D. EMMONS LARRY JOE SCHULTZ
NANCY L. FISHER TIMOTHY W. SHAWGO
RALPH H. HARRIS JUDY M. SKINNER
JIMMY JOHNSON MARVIN C. SMITH
DORIS L. LANIER DEBORAH S. STRACNER
RICHARD L. LEWIS CHARLES E. TRYON
JOHN D. NIX RAYMOND VASQUEZ
ROBERT B. SHELTON ROY M. WEGER
ARTHUR C. SMALLS, SR. FRANK WHITE
SAMUEL TURNER LOIS J. WHITE
HOWARD O. WALKER JACQUELINE I. MARR
WILLIAM R. BARTLETT GEORGE E. SNOOK
THOMAS L. BITTMAN RALPH L. WILLIAMS
-------------------- ALJ$ DECISION FOLLOWS --------------------
PETER B. ROBB, ESQ.
SUSAN SHINKMAN, ESQ.
FOR THE GENERAL COUNSEL
WILSON R. HART
JOHN GREEN
FOR THE RESPONDENTS
BARBARA BRUNO
FOR THE CHARGING PARTY
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C 7101 ET SEQ. IT
WAS INSTITUTED BY THE ISSUANCE OF COMPLAINTS IN ACCORDANCE WITH SECTION
2423.11 OF THE INTERIM RULES AND REGULATIONS, 5 C.F.R. CHAPTER XIV,
JULY 30, 1979, BASED UPON CHARGES FILED AFTER JULY 11, 1979.
IN CASE NO. 3-CA-338, THE COMPLAINT AND NOTICE OF HEARING WAS ISSUED
ON NOVEMBER 8, 1979. IT ALLEGES /6/ THAT DEFENSE LOGISTICS AGENCY,
DEFENSE PROPERTY DISPOSAL SERVICE, DEFENSE PROPERTY DISPOSAL REGIONS OF
MEMPHIS, TENNESSEE, OGDEN, UTAH, AND COLUMBUS, OHIO (RESPONDENT DPDS)
VIOLATED SECTIONS 7116(A)(1)(5) AND (8) BY REFUSING TO RECOGNIZE OR
BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE. /7/ FURTHER, IT IS
SEPARATELY ALLEGED THAT THE REFUSAL TO HONOR EMPLOYEES' DUES ALLOTMENT
REQUESTS CONSTITUTES A REFUSAL AND FAILURE TO COMPLY WITH SECTION 7115
OF THE STATUTE AND A VIOLATION OF SECTION 7116(A)(1)(5) AND (8). /8/
IN CASE NO. 3-CA-294, THE COMPLAINT AND NOTICE OF HEARING WAS ISSUED
ON OCTOBER 3, 1979. IT ALLEGES THAT THE DEFENSE LOGISTICS AGENCY
(RESPONDENT DLA) REFUSED TO CONSULT AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO /9/ IN VIOLATION OF
SECTIONS 7116(A)(1) AND (5) OF THE STATUTE.
BY ORDER DATED NOVEMBER 19, 1979, THESE CASES WERE CONSOLIDATED FOR
HEARING BY REGIONAL DIRECTOR ALEXANDER T. GRAHAM.
THE ANSWERS FILED BY RESPONDENT DLA AND RESPONDENT DPDS DENY THAT
AFGE IS A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 7103(A)(4) OF
THE STATUTE. FURTHER, RESPONDENTS AFFIRMATIVELY ALLEGE THAT, UNDER
SECTION 7120(A) OF THE STATUTE, AN AGENCY IS NOT OBLIGATED TO ACCORD
RECOGNITION TO ANY EXCLUSIVE REPRESENTATIVE WHICH, IN THE AGENCY'S
OPINION, HAS NOT SATISFACTORILY COMPLIED WITH THE FILING REQUIREMENTS OF
SECTION 7111(E) OF THE STATUTE. /10/
AT THE HEARING IN THESE CASES IN WASHINGTON, D.C., ALL PARTIES WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND
CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. THEREAFTER, RESPONDENTS AND
THE GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED. /11/
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING:
FINDINGS AND CONCLUSIONS
I. THE ISSUES
A. WHETHER THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
IS A "LABOR ORGANIZATION" AS THAT TERM IS DEFINED AT SECTION 7103(A)(4)
OF THE STATUTE.
B. WHETHER AFGE'S ALLEGED NONCOMPLIANCE WITH THE FILING REQUIREMENTS
OF SECTION 7111 IS LITIGABLE IN AN UNFAIR LABOR PRACTICE PROCEEDING.
C. WHETHER RESPONDENT DPDS VIOLATED SECTIONS 7116(A)(1)(5) AND (8)
BY REFUSING TO BARGAIN, UPON REQUEST, WITH AFGE, THE EXCLUSIVE
REPRESENTATIVE.
D. WHETHER RESPONDENT DPDS FAILED TO COMPLY WITH SECTION 7115(A) BY
REFUSING TO HONOR VALID DUES DEDUCTION AUTHORIZATIONS SUBMITTED
SUBSEQUENT TO JANUARY 11, 1979.
1. IF SO, WHETHER SUCH CONDUCT CONSTITUTES A VIOLATION OF SECTIONS
7116(A)(1), (5) AND
(8).
2. IF SO, WHETHER REIMBURSEMENT OF THE BACK DUES, WITH INTEREST, IS
AN APPROPRIATE REMEDY.
E. WHETHER RESPONDENT DLA VIOLATED SECTIONS 7116(A)(1)(5) AND (8) BY
REFUSING TO BARGAIN WITH AFGE, THE EXCLUSIVE REPRESENTATIVE.
II. THE AGENCIES INVOLVED
A. THE COMPLAINTS ALLEGE, THE ANSWERS ADMIT, AND I FIND THAT
RESPONDENT DPDS AND RESPONDENT DLA ARE AGENCIES WITHIN THE MEANING OF
SECTION 7103(A)(3) OF THE STATUTE.
B. BY WAY OF BACKGROUND, IN ORDER TO PUT THESE CASES INTO PROPER
PERSPECTIVE, THE FOLLOWING INFORMATION HAS BEEN EXTRACTED FROM
RESPONDENT'S BRIEF AND ANSWER.
1. THE DLA IS A MAJOR COMPONENT-- A "PRIMARY NATIONAL SUBDIVISION"--
OF THE DEPARTMENT OF DEFENSE (DOD). IT IS THE FOURTH LARGEST COMPONENT
OF THE DOD IN TERMS OF THE SIZE OF ITS CIVILIAN WORK FORCE (FOLLOWING
THE ARMY, THE NAVY, AND THE AIR FORCE). IT RANKS TWELFTH (12) IN SIZE
AMONG THE MAJOR DEPARTMENTS AND AGENCIES OF THE EXECUTIVE BRANCH OF THE
FEDERAL GOVERNMENT. IT HAS APPROXIMATELY 46,000 EMPLOYEES WHO ARE
ASSIGNED EITHER TO THE DLA HEADQUARTERS IN ALEXANDRIA, VIRGINIA, OR TO
ONE OF THE 31 DLA PRIMARY LEVEL FIELD ACTIVITIES (PLFA'S), ALL OF WHICH
HAVE THEIR HEADQUARTERS IN THE CONTINENTAL UNITED STATES.
2. THE DPDS IS ONE OF THESE 31 PLFA'S. IT HAS ITS HEADQUARTERS IN
BATTLE CREEK, MICHIGAN. WITHIN THE DPDS THERE ARE FIVE DEFENSE PROPERTY
DISPOSAL REGIONS (DPDRS) AND 159 DEFENSE PROPERTY DISPOSAL OFFICES
(DPDOS). THREE OF THE FIVE DPDRS ARE IN THE CONTINENTAL UNITED STATES.
THEIR HEADQUARTERS ARE IN COLUMBUS, OHIO; MEMPHIS, TENNESSEE; AND
OGDEN, UTAH. THEY ARE COMMONLY REFERRED TO AS THE DPDR, COLUMBUS;
DPDR, MEMPHIS; AND THE DPDR, OGDEN.
3. THE COMMANDERS OF THESE THREE DPDRS ALL REPORT TO THE COMMANDING
GENERAL OF THE DPDS IN BATTLE CREEK, MICHIGAN, WHO, IN TURN, REPORTS TO
THE DIRECTOR OF THE DLA, A COMPONENT AGENCY OF THE DOD, WITH
HEADQUARTERS IN ALEXANDRIA, VIRGINIA.
C. THE DLA UNIT (CASE NO. 3-CA-294)
1. ON MARCH 6, 1979, PURSUANT TO A PETITION FOR UNIT CONSOLIDATION
IN CASE 22-09044(US), THE AUTHORITY CERTIFIED AFGE AS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN NON-PROFESSIONAL EMPLOYEES OF RESPONDENT DLA
(G.C. EXH. NO. 5). THE AUTHORITY AMENDED THIS CERTIFICATION ON MAY 9,
MAY 23 AND JUNE 1 (G.C. EXH. NOS. A(K), 1(M)).
2. ALSO ON MARCH 6, THE AUTHORITY, AGAIN PURSUANT TO A PETITION FOR
UNIT CONSOLIDATION IN CASE 22-09044(UC), CERTIFIED AFGE AS THE EXCLUSIVE
REPRESENTATIVE OF CERTAIN PROFESSIONAL EMPLOYEES OF RESPONDENT (DLA
(G.C. EXH. NO. 21).
3. ON MAY 9, THE AUTHORITY AMENDED THE CERTIFICATION OF PROFESSIONAL
EMPLOYEES (G.C. EXH. NO. 1(K), 1(M)).
4. BY LETTER DATED MAY 24, AFGE REQUESTED RESPONDENT DLA TO MEET AND
BEGIN NEGOTIATIONS FOR A COLLECTIVE-BARGAINING AGREEMENT CONCERNING ITS
EMPLOYEES (G.C. EXH. NO. 15).
5. AFGE REPEATED ITS BARGAINING DEMAND ON MAY 30 AND, AGAIN, ON MAY
31 (G.C. EXH. NOS. 16, 17).
6. BY LETTER DATED JUNE 8, RESPONDENT DLA REFUSED TO MEET AND
NEGOTIATE WITH AFGE (G.C. EXH. NO. 18).
D. THE DPDS UNIT (CASE NO. 3-CA-338)
1. ON MAY 3, 1977, AFGE, THE INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS (AFL-CIO) AND THE METAL TRADES DEPARTMENT
(AFL-CIO) WERE CERTIFIED JOINTLY AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR EMPLOYEES AT RESPONDENT DPDS' COLUMBUS, OHIO AND
MEMPHIS, TENNESSEE LOCATIONS (G.C. EXH. NOS. 2, 3);
2. ON JUNE 30, 1977, THESE SAME THREE UNIONS WERE CERTIFIED JOINTLY
AS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR EMPLOYEES AT RESPONDENT
DPDS' OGDEN, UTAH LOCATION (G.C. EXH. NO. 4).
3. BY LETTERS DATED JANUARY 25, 1978, BOTH THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS (AFL-CIO) AND THE METAL
TRADES DEPARTMENT (AFL-CIO) DESIGNATED AFGE AS THE UNION /12/ FOR
PURPOSES OF REPRESENTING EMPLOYEES IN THE THREE CERTIFIED BARGAINING
UNITS (G.C. EXH. NO. 6).
4. THESE LETTERS WERE FORWARDED TO RESPONDENT DPDS ON FEBRUARY 7,
1978 (G.C. EXH. NO. 6, TR. 8).
5. ON JANUARY 17, AFGE INFORMED RESPONDENT DPDS OF THE INDIVIDUALS
WHO WERE AUTHORIZED TO APPROVE REQUESTS FOR DUES AUTHORIZATIONS AND
COLLECT CORRESPONDING DUES MONIES FOR THOSE PERSONS IN THE CERTIFIED
UNITS WHO CHOSE TO HAVE THEIR DUES DEDUCTED FROM THEIR PAYROLL CHECKS
(G.C. EXH. NOS. 7, 8, 9, RESP. EXH. NOS. 14, 15, 16).
6. BETWEEN JANUARY 11 AND THE PRESENT, FORTY-TWO (42) EMPLOYEES HAVE
SUBMITTED REQUESTS AUTHORIZING RESPONDENT DPDS TO DEDUCT THE PERIODIC
DUES FOR THE UNION FROM THEIR PAYROLL CHECKS (G.C. EXH. NOS. 20(A) -
20(III)).
7. RESPONDENT DPDS HAS REFUSED TO MAKE ANY SUCH DEDUCTIONS (G.C.
EXH. NOS. 1(N), 10).
8. ON MAY 29, AFGE REQUESTED RESPONDENT DPDS TO MEET AND BEGIN
NEGOTIATIONS FOR A COLLECTIVE-BARGAINING AGREEMENT CONCERNING THE
EMPLOYEES IN EACH OF THE THREE CERTIFIED BARGAINING UNITS (G.C. EXH.
NOS. 11, 12, 13).
9. ON JUNE 13, RESPONDENT DPDS REFUSED TO BARGAIN WITH AFGE (G.C.
EXH. NO. 14).
I. THE LABOR ORGANIZATIONS INVOLVED
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO IS THE
CHARGING PARTY IN CASE NO. 3-CA-294 AND ONE OF THREE CHARGING PARTIES IN
CASE NO. 3-CA-338. ITS STATUS AS A "LABOR ORGANIZATION" WITHIN THE
MEANING OF SECTION 7103(A)(4) OF THE STATUTE IS CONTESTED BY RESPONDENTS
IN BOTH CASES. /13/
A. PROCEDURAL ISSUE
AT THE OUTSET, I WOULD POINT OUT THAT RESPONDENTS PARTICIPATED FULLY
IN THE REPRESENTATION PROCEEDINGS BEFORE THE ASSISTANT SECRETARY AND THE
AUTHORITY, AS DETAILED ABOVE, AND FAILED TO CHALLENGE AFGE'S STATUS AS A
LABOR ORGANIZATION PRIOR TO THE ISSUANCE OF THE CERTIFICATION OF
REPRESENTATIVE WHEN IT WOULD HAVE BEEN TIMELY TO DO SO. ALTHOUGH THE
GENERAL COUNSEL DID NOT QUESTION THE RIGHT OF RESPONDENT TO LITIGATE
THIS ISSUE IN THIS PROCEEDING, I REGARD IT AS A THRESHOLD ISSUE
DESERVING OF SOME DISCUSSION.
THE NATIONAL LABOR RELATIONS BOARD, IN TEXAS INDUSTRIES, INC., 199
NLRB 671, STATED AS FOLLOWS:
IT IS WELL SETTLED THAT IN THE ABSENCE OF NEWLY DISCOVERED OR
PREVIOUSLY UNAVAILABLE
EVIDENCE OR SPECIAL CIRCUMSTANCES A RESPONDENT IN A PROCEEDING
ALLEGING A VIOLATION OF SECTION
8(A)(5) IS NOT ENTITLED TO RELITIGATE ISSUES WHICH WERE OR COULD HAVE
BEEN LITIGATED IN A
PRIOR REPRESENTATION PROCEEDING.
CITING THE SUPREME COURT'S DECISION IN PITTSBURGH PLATE GLASS CO. V.
N.L.R.B., 313 U.S. 146, 162 (1941), AND ITS OWN REGULATIONS, THE BOARD
WENT ON TO SAY:
ALL ISSUES RAISED BY THE RESPONDENT IN THIS PROCEEDING WERE OR COULD
HAVE BEEN LITIGATED IN
THE PRIOR REPRESENTATION PROCEEDING, AND THE RESPONDENT DOES NOT
OFFER TO ADDUCE AT A HEARING
ANY NEWLY DISCOVERED OR PREVIOUSLY UNAVAILABLE EVIDENCE, NOR DOES IT
ALLEGE THAT ANY SPECIAL
CIRCUMSTANCES EXIST HEREIN WHICH WOULD REQUIRE THE BOARD TO REEXAMINE
THE DECISION MADE IN THE
REPRESENTATION PROCEEDING. WE THEREFORE FIND THAT THE RESPONDENT HAS
NOT RAISED ANY ISSUE
WHICH IS PROPERLY LITIGABLE IN THIS UNFAIR LABOR PRACTICE PROCEEDING.
WE SHALL, ACCORDINGLY,
GRANT THE MOTION FOR SUMMARY JUDGMENT.
IN MY OPINION, THIS NLRB PRECEDENT WHICH HAS BEEN TESTED IN THE
COURTS AND RECEIVED SUPREME COURT APPROVAL HAS APPLICABILITY TO THE
PRESENT CASE.
IN ADDITION, SECTION 2422.2(G) OF THE AUTHORITY'S INTERIM RULES AND
REGULATIONS FOR REPRESENTATION PROCEEDINGS CLEARLY STATES AS FOLLOWS:
(G) CHALLENGE TO STATUS OF A LABOR ORGANIZATION. ANY PARTY
CHALLENGING THE STATUS OF A
LABOR ORGANIZATION UNDER CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE MUST FILE ITS
CHALLENGE WITH THE REGIONAL DIRECTOR AND SUPPORT THE CHALLENGE WITH
EVIDENCE.
IT SEEMS CLEAR TO ME, THEREFORE, THAT THE RESPONDENT SHOULD HAVE
CHALLENGED THE STATUS OF AFGE AS A LABOR ORGANIZATION IN THE
REPRESENTATION PROCEEDINGS IN THESE CASES. NOT HAVING DONE SO,
RESPONDENTS HAD THE BURDEN OF CARRYING FORWARD WITH NEWLY DISCOVERED OR
PREVIOUSLY UNAVAILABLE EVIDENCE, OR SPECIAL CIRCUMSTANCES TO WARRANT
REEXAMINATION BY THE AUTHORITY. IN MY VIEW THE RESPONDENTS HAVE NOT
SUSTAINED THIS BURDEN. HOWEVER, I NEED NOT RESOLVE THIS ISSUE ON SUCH A
NARROW GROUND BECAUSE, IN FACT, THE ISSUE WAS LITIGATED BY THE GENERAL
COUNSEL AND THERE IS SUFFICIENT RECORD EVIDENCE UPON WHICH TO MAKE A
DETERMINATION.
B. FACTS
THE FACTS BEARING ON THIS ISSUE WERE PRESENTED BY THE GENERAL COUNSEL
THROUGH THE UNCONTRADICTED TESTIMONY OF MS. BARBARA BRUNO, A LABOR
RELATIONS SPECIALIST FOR THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES. BASED UPON HER TESTIMONY, I MAKE THE FOLLOWING FINDINGS:
1. AFGE IS AN ORGANIZATION COMPOSED, IN PART, OF EMPLOYEES OF THE
FEDERAL GOVERNMENT, WHO PAY DUES AND PARTICIPATED IN AFGE IN A VARIETY
OF WAYS. AFGE IS DIVIDED INTO FIFTEEN DISTRICTS EACH HEADED BY A
NATIONAL VICE-PRESIDENT WHO IS ELECTED BY FEDERAL EMPLOYEES. MS. BRUNO
ALSO TESTIFIED THAT FEDERAL EMPLOYEES ELECT THE OFFICIALS WHO ATTEND
AFGE'S NATIONAL CONVENTIONS AT WHICH THE CONSTITUTION AND BYLAWS ARE
ESTABLISHED. A PURPOSE OF AFGE IS TO HANDLE GRIEVANCES AND MATTERS OF
CONCERN AFFECTING CONDITIONS OF EMPLOYMENT FOR FEDERAL EMPLOYEES
THROUGH
UNIFIED ACTION. AFGE DOES NOT BY ITS CONSTITUTION, BYLAWS OR AGREEMENTS
AMONG ITS MEMBERS DENY MEMBERSHIP BECAUSE OF RACE, COLOR, CREED,
NATIONAL ORIGIN, SEX, AGE, PREFERENTIAL OR NONPREFERENTIAL CIVIL SERVICE
STATUS, POLITICAL AFFILIATION, MARITAL STATUS, OR HANDICAPPING
CONDITION. THE PURPOSES OF AFGE DO NOT INCLUDE ADVOCATING THE OVERTHROW
OF THE CONSTITUTIONAL FORM OF GOVERNMENT OF THE UNITED STATES. AFGE IS
NOT SPONSORED BY AN AGENCY OF THE FEDERAL GOVERNMENT AND HAS NOT
PARTICIPATED IN THE CONDUCT OF A STRIKE AGAINST THE FEDERAL GOVERNMENT
OR ANY AGENCY THEREOF AND HAS NEVER IMPOSED A DUTY OR OBLIGATION ON ITS
MEMBERS TO CONDUCT, ASSIST OR PARTICIPATE IN SUCH A STRIKE.
C. DISCUSSION AND CONCLUSIONS
THE EVIDENCE PRESENTED BY THE GENERAL COUNSEL IS CREDIBLE AND
COMPLETELY UNCONTRADICTED.
SECTION 7103(A)(4) OF THE STATUTE DEFINES "LABOR ORGANIZATION" AS ".
. . AN ORGANIZATION COMPOSED IN WHOLE OR IN PART OF EMPLOYEES, IN WHICH
EMPLOYEES PARTICIPATE AND PAY DUES, AND WHICH HAS AS A PURPOSE THE
DEALING WITH AN AGENCY CONCERNING GRIEVANCES AND CONDITIONS OF
EMPLOYMENT. . ." AS NOTED ABOVE, THE COMPOSITION OF AFGE INCLUDES
EMPLOYEES OF THE FEDERAL GOVERNMENT; THESE EMPLOYEES PARTICIPATE
THROUGH A NATIONAL CONVENTION AND THROUGH THE ORGANIZATION'S DIVISION
INTO FIFTEEN DISTRICTS; THE EMPLOYEES PAY DUES; AND THE PURPOSE IS TO
PROVIDE PROTECTION THROUGH UNIFIED ACTION OR TO HANDLE MATTERS OF
CONCERN AFFECTING CONDITIONS OF EMPLOYMENT AND GRIEVANCES OF FEDERAL
EMPLOYEES. IN ADDITION, MS. BRUNO TESTIFIED THAT THE UNION DOES NOT
PARTICIPATE IN ANY OF THE ACTIVITIES PROHIBITED BY SECTION 7103(A)(4),
I.E., DISCRIMINATION, ADVOCATING THE OVERTHROW OF THE GOVERNMENT,
SPONSORSHIP BY AN AGENCY, OR STRIKING (TR. 20, 21).
ACCORDINGLY, I FIND AND CONCLUDE THAT AFGE IS A LABOR ORGANIZATION
WITHIN THE MEANING OF SECTION 7103(A)(4) OF THE STATUTE.
RESPONDENTS' CONCERN IS NOT WHETHER AFGE IS COMPOSED OF DLA AND DPDS
EMPLOYEES (TR. 48, 49), BUT RATHER THAT AFGE IS THE "NATIONAL OFFICE"
AND NOT A "LOCAL" OR "COUNCIL OF LOCALS." IN THIS REGARD, THEN, THE
GENERAL COUNSEL IS CORRECT WHEN HE ASSERTS IN HIS BRIEF THAT RESPONDENTS
"APPEAR TO HAVE SOME DIFFICULTY WITH THE CONCEPT OF NATIONAL UNIONS
BEING LABOR ORGANIZATIONS." HOWEVER, THIS CONCEPT IS WIDELY ACCEPTED IN
THE PRIVATE SECTOR BASED ON AN INTERPRETATION OF THE TERM "LABOR
ORGANIZATION." SECTION 2(5) OF THE LABOR MANAGEMENT RELATIONS ACT (LMRA)
CONTAINS A DEFINITION OF LABOR ORGANIZATION SIMILAR TO THE ONE FOUND IN
SECTION 7103(A)(4) OF THE STATUTE. RELYING ON THAT DEFINITION THE NLRB
HAS HELD THAT A COUNCIL COMPOSED OF REPRESENTATIVES OF DIFFERENT LABOR
ORGANIZATIONS IS ITSELF A LABOR ORGANIZATION SINCE IT IS AN ORGANIZATION
IN WHICH EMPLOYEES PARTICIPATE AND IT EXISTS AT LEAST IN PART TO DEAL
WITH EMPLOYEES CONCERNING CONDITIONS OF WORK, ESSEX COUNTY BUILDING
TRADES COUNCIL, 243 NLRB NO. 25, 101 LRRM 1400 (1979). THIS IS TRUE
EVEN IF INDIVIDUAL EMPLOYEES DO NOT HOLD DIRECT MEMBERSHIP IN SUCH A
COUNCIL, HALLIBURTON CO., 142 NLRB NO. 73, 53 LRRM 1106 (1963). PRIOR
TO THEIR MERGER BOTH THE AMERICAN FEDERATION OF LABOR /14/ AND THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS /15/ WERE FOUND TO BE LABOR
ORGANIZATIONS. WHILE NLRB PRECEDENT IS NOT BINDING, THE MEANING
ATTACHED TO A SIMILAR TERM IN SIMILAR CONTEXTS SETS FORTH A WELL
ESTABLISHED PRINCIPLE THAT NATIONAL UNIONS MEET THE DEFINITION OF LABOR
ORGANIZATION. /16/
HAVING MET THE STATUTORY REQUIREMENTS OF A "LABOR ORGANIZATION" AFGE
MUST BE ACCORDED ALL THE RIGHTS TO WHICH SUCH AN ORGANIZATION IS
ENTITLED UNDER THE STATUTE, INCLUDING THE RIGHT TO ACT AS AN EXCLUSIVE
REPRESENTATIVE.
IV. ALLEGED NONCOMPLIANCE WITH THE FILING REQUIREMENTS OF SECTION
7111(E) IS NOT LITIGABLE
IN AN UNFAIR LABOR PRACTICE PROCEEDING
SECTION 7111(E) OF THE STATUTE PROVIDES AS FOLLOWS:
"(E) A LABOR ORGANIZATION SEEKING EXCLUSIVE RECOGNITION SHALL SUBMIT
TO THE AUTHORITY AND
THE AGENCY INVOLVED A ROSTER OF ITS OFFICERS AND REPRESENTATIVES A
COPY OF ITS CONSTITUTION
AND BYLAWS, AND A STATEMENT OF ITS OBJECTIVES."
THE CENTRAL ISSUE IN THIS CASE IS NOT THE ADMITTED FACT THAT
RESPONDENTS REFUSED TO RECOGNIZE AND BARGAIN WITH AFGE BUT, RATHER,
THEIR REASON FOR DOING SO. IT IS CLEAR FROM ALL THE EVIDENCE THAT
RESPONDENTS SIMPLY HAVE BEEN SEEKING A FORUM IN WHICH TO LITIGATE THE
QUESTION OF WHETHER OR NOT AFGE HAS FULLY AND PROPERLY COMPLIED WITH THE
REQUIREMENTS OF SECTION 7111(E) OF THE STATUTE. I BELIEVE THAT
PRECEDENT IN THE PRIVATE SECTOR, PRECEDENT UNDER THE EXECUTIVE ORDER,
AND AN ANALYSIS OF THE STATUTE AND THE REGULATIONS, ALL LEAD TO THE
CONCLUSION THAT A LABOR ORGANIZATION'S COMPLIANCE WITH THE PROVISIONS OF
SECTION 7111(E) OF THE STATUTE IS AN ADMINISTRATIVE MATTER WHICH IS NOT
LITIGABLE IN AN UNFAIR LABOR PRACTICE PROCEEDING.
A. PRIVATE SECTOR PRECEDENT
THE GENESIS FOR IMPOSING FILING REQUIREMENTS ON A UNION IS SECTION 9
OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, AS AMENDED. SECTION 9(F)
REQUIRED A LABOR UNION DESIRING THE COVERAGE, PROTECTION AND BENEFITS OF
THAT LAW TO FILE WITH THE SECRETARY OF LABOR COPIES OF ITS CONSTITUTION
AND BYLAWS AND A REPORT SHOWING CERTAIN REQUIRED INFORMATION. SECTION
9(G) PROVIDED THAT ANY UNION FAILING TO COMPLY WITH THE FILING
REQUIREMENTS WOULD NOT BE CERTIFIED AND NO COMPLAINT WOULD BE ISSUED ON
AN UNFAIR LABOR PRACTICE CHARGE FILED BY IT. THESE NEW SECTIONS OF THE
LAW WERE PROMPTLY PUT TO A TEST BY EMPLOYERS IN NUMEROUS CASES, LEADING
THE NATIONAL LABOR RELATIONS BOARD TO ADOPT THE POLICY THAT A UNION'S
COMPLIANCE WITH THE SECTION 9 FILING REQUIREMENTS WAS "AN ADMINISTRATIVE
MATTER" NOT LITIGABLE IN EITHER A REPRESENTATION PROCEEDING OR AN UNFAIR
LABOR PRACTICE PROCEEDING. PAULS VALLEY MILLING CO., 82 NLRB 1266;
LION OIL COMPANY, 76 NLRB 565. I AM OF THE OPINION THAT A SIMILAR
POLICY SHOULD BE APPLICABLE TO CASES ARISING UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
B. EXECUTIVE ORDER PRECEDENT
IN CHARLESTON NAVAL SHIPYARD, CASE NO. 40-1926(RO), OCT. 16, 1970,
ASST. SECRETARY RULINGS ON REQUESTS FOR REVIEW, VOL. 1, P. 77, IT WAS
HELD THAT SECTION 202.2(G), WHICH PROVIDES FOR CHALLENGES TO THE STATUS
OF A LABOR ORGANIZATION IN THE COURSE OF A REPRESENTATION PROCEEDING,
DID NOT CONTEMPLATE CHALLENGES BASED UPON ALLEGED VIOLATIONS OF THE
STANDARDS OF CONDUCT. THE ASSISTANT SECRETARY FURTHER STATED:
AS REGIONAL ADMINISTRATOR CHENNAULT INFORMED YOU, THE PROCEDURES FOR
ENFORCING THE
STANDARDS OF CONDUCT ARE SET FORTH IN PART 204 OF THE REGULATIONS.
COMPLAINTS OF ALLEGED
VIOLATIONS OF THE BILL OF RIGHTS OF MEMBERS OF LABOR ORGANIZATIONS
(SECTION 204.2) AND THE
PROVISIONS RELATING TO THE ELECTION OF OFFICERS (SECTION 204.29) MAY
BE BROUGHT ONLY BY A
MEMBER OF THE LABOR ORGANIZATION.
IF YOU HAVE CONCRETE EVIDENCE OF AN ACTUAL VIOLATION OF THE OTHER
PROVISIONS OF THE
REGULATIONS (PART 204) IMPLEMENTING THE STANDARDS OF CONDUCT, YOU
SHOULD PRESENT IT TO AN AREA
ADMINISTRATOR IN ACCORDANCE WITH SECTION 204.53. HOWEVER, THE
PROCESSING OF REPRESENTATION
CASES WILL NOT BE DELAYED PENDING INVESTIGATION AND RESOLUTION OF
COMPLAINTS, FILED AS
PROVIDED IN THE REGULATIONS, ALLEGING VIOLATIONS OF PART 204.
THE SIGNIFICANCE OF THIS DECISION IS THAT IT (1) CLEARLY TREATS THE
REPRESENTATION PROCEDURES AS SEPARATE AND APART FROM THE PROCEDURES
DEALING WITH STANDARDS OF CONDUCT, AND (2) CLEARLY STATES THAT CERTAIN
TYPES OF VIOLATIONS OF THE STANDARDS OF CONDUCT PROVISIONS MAY ONLY BE
RAISED BY UNION MEMBERS, AS CONTENDED HEREIN BY THE GENERAL COUNSEL.
THE STANDARDS OF CONDUCT PROVISIONS IN SECTION 18 OF THE EXECUTIVE
ORDER ARE ESSENTIALLY THE SAME AS THE SECTION 7120 PROVISIONS OF THE
STATUTE AND WILL BE DISCUSSED LATER. SUFFICE TO SAY, I AM AWARE OF NO
DECISIONS UNDER THE ORDER WHICH WOULD SUPPORT THE VIEW THAT ISSUES
RELATING TO "STANDARDS OF CONDUCT" CAN BE LITIGATED IN AN UNFAIR LABOR
PRACTICE PROCEEDING.
C. THE STATUTE
THE SECTIONS OF THE STATUTE WHICH ARE OF MAJOR CONCERN HERE ARE
SECTIONS 7116, 7120, AND 7111. THEY WILL BE DISCUSSED IN THAT ORDER.
1. SECTION 7116 CONTAINS THE UNFAIR LABOR PRACTICE PROVISIONS. THE
RELATED RULES AND REGULATIONS ARE IN PART 2423 OF THE AUTHORITY'S RULES
AND REGULATIONS. I FIND NOTHING IN THE SECTION 7116 OR PART 2423 WHICH
EXPRESSLY OR IMPLIEDLY PERMITS AN ADMINISTRATIVE LAW JUDGE TO EXAMINE
THE CONSTITUTION AND BYLAWS OF A UNION IN ORDER TO DETERMINE ITS
COMPLIANCE WITH THE REQUIREMENTS OF SECTION 7111(E) OF SECTION 7120.
YET, THIS IS PRECISELY WHAT WOULD BE REQUIRED IF I WERE TO PERMIT
RESPONDENT TO LITIGATE THIS ISSUE BEFORE ME. THEREFORE, I CONCLUDE THAT
I AM WITHOUT AUTHORITY TO ENTERTAIN THIS ISSUE. IN ADDITION, I AGREE
WITH THE GENERAL COUNSEL THAT ARE MORE APPROPRIATE FORUMS IN WHICH THIS
ISSUE CAN BE LITIGATED AND RESOLVED.
2. SECTION 7120 OF THE STATUTE PROVIDES GUIDELINES FOR ASSURING THAT
LABOR ORGANIZATIONS ARE FREE FROM CORRUPT INFLUENCES. IT IS ALMOST
IDENTICAL TO SECTION 18 OF EXECUTIVE ORDER 11491, AS AMENDED.
RESPONDENT FOCUSES ALMOST EXCLUSIVELY ON SECTION 7120(A) WHICH STATES
THAT, "AN AGENCY SHALL ONLY ACCORD RECOGNITION TO A LABOR ORGANIZATION
THAT IS FREE FROM CORRUPT INFLUENCES AND INFLUENCES OPPOSED TO BASIC
DEMOCRATIC PRINCIPLES. . ." RESPONDENT INTERPRETS THIS SENTENCE AS
GIVING IT THE AUTHORITY TO DETERMINE WHETHER A LABOR ORGANIZATION IS
FREE FROM CORRUPT INFLUENCES AND REFUSE TO BARGAIN IF IT DETERMINES THAT
IT IS NOT. HOWEVER, IT IS THE POSITION OF COUNSEL FOR THE GENERAL
COUNSEL, WITH WHICH I AGREE, THAT THERE IS NO SUCH AUTHORITY OR DUTY
PLACED UPON THE AGENCY UNDER SECTION 7120 OF THE STATUTE AND THAT THE
ENFORCEMENT OF STANDARDS OF CONDUCT RESTS WITH THE ASSISTANT SECRETARY.
/17/
SECTION 7120 SETS FORTH NOT ONLY THE STANDARDS OF CONDUCT FOR LABOR
ORGANIZATION BUT ALSO THE PROCEDURES FOR SEEING THAT THEY ARE
MAINTAINED. AS TO THE ENFORCEMENT OR ADMINISTRATION OF STANDARDS OF
CONDUCT, SECTION 7120(D) PROVIDES:
"THE ASSISTANT SECRETARY SHALL PRESCRIBE SUCH REGULATIONS AS ARE
NECESSARY TO CARRY OUT THE
PURPOSES OF THIS SECTION. SUCH REGULATIONS SHALL CONFORM GENERALLY
TO THE PRINCIPLES APPLIED
TO LABOR ORGANIZATIONS IN THE PRIVATE SECTOR. COMPLAINTS OF
VIOLATIONS OF THIS SECTION SHALL
BE FILED WITH THE ASSISTANT SECRETARY. IN ANY MATTER ARISING UNDER
THIS SECTION, THE
ASSISTANT SECRETARY MAY REQUIRE A LABOR ORGANIZATION TO CEASE AND
DESIST FROM VIOLATIONS OF
THIS SECTION AND REQUIRE IT TO TAKE SUCH ACTIONS AS HE CONSIDERS
APPROPRIATE TO CARRY OUT THE
POLICIES OF THIS SECTION."
CLEARLY, A QUESTION REGARDING A LABOR ORGANIZATION'S COMPLIANCE WITH
THE STANDARDS OF CONDUCT REQUIREMENTS BELONGS BEFORE THE ASSISTANT
SECRETARY WHO ISSUED IMPLEMENTING REGULATIONS ON JULY 26, 1979 AT 5
C.F.R. PARTS 207-209. NOT ONLY IS A FORUM SPECIFICALLY PROVIDED, BUT A
REMEDY OF CEASE AND DESIST OR OTHER AFFIRMATIVE ACTION ON THE PART OF
THE LABOR ORGANIZATION MAY BE ORDERED. THE FACT THAT A FORUM HAS BEEN
ESTABLISHED BY STATUTE IN WHICH STANDARDS OF CONDUCT ISSUES WILL BE
INVESTIGATED AND DECIDED BY THE ASSISTANT SECRETARY IS, IN MY OPINION,
PERSUASIVE EVIDENCE TO SUPPORT MY CONCLUSION THAT SUCH ISSUES ARE NOT
LITIGABLE IN AN UNFAIR LABOR PRACTICE PROCEEDING. INDEED, I CONCLUDE
THAT IN THE ABSENCE OF EXPRESS AUTHORITY PROMULGATED IN THE RULES AND
REGULATIONS BY THE AUTHORITY, I WOULD BE USURPING THE FUNCTIONS OF THE
ASSISTANT SECRETARY WERE I TO PERMIT LITIGATION OF THIS ISSUE HEREIN.
3. IN PERTINENT PART, SECTION 7111(F) OF THE STATUTE STATES AS
FOLLOWS:
"(F) EXCLUSIVE RECOGNITION SHALL NOT BE ACCORDED TO A LABOR
ORGANIZATION--
"(1) IF THE AUTHORITY DETERMINES THAT THE LABOR ORGANIZATION IS
SUBJECT TO CORRUPT
INFLUENCES OR INFLUENCES OPPOSED TO DEMOCRATIC PRINCIPLES;
RESPONDENTS CONTEND THAT BECAUSE SECTION 7111(E) REQUIRES A LABOR
ORGANIZATION TO SUBMIT ITS CONSTITUTION AND BYLAWS "TO THE AUTHORITY AND
THE AGENCY" IT NECESSARILY FOLLOWS THAT THE AGENCY HAS SOME ROLE OTHER
THAN SIMPLY RECEIVING THE DOCUMENTS FOR THE INFORMATION CONTAINED
THEREIN. THE ANSWER IS THAT THE AGENCY HAS NO ROLE AND IT IS
MISCHIEVOUS TO SERIOUSLY CONTEND THAT CONGRESS INTENDED THAT ANY
GOVERNMENT AGENCY SIT IN JUDGMENT TO DETERMINE WHETHER A LABOR
ORGANIZATION SEEKING EXCLUSIVE RECOGNITION OF ITS EMPLOYEES WAS IN
COMPLIANCE WITH SECTION 7111(E). IF THAT THEORY WERE FOLLOWED TO ITS
LOGICAL CONCLUSION THERE WOULD BE AS MANY STANDARDS FOR "ADEQUACY OF
COMPLIANCE" AS THERE ARE GOVERNMENT AGENCIES. MOREOVER, WITH THIS
APPROACH, A LABOR ORGANIZATION COULD OBTAIN ITS SHOWING OF INTEREST,
FILE A REPRESENTATION PETITION, WIN A SECRET BALLOT ELECTION, RECEIVE A
CERTIFICATION OF EXCLUSIVE REPRESENTATIVE FROM THE AUTHORITY, REQUEST
THE AGENCY TO BARGAIN, AND THEN BE MET WITH THE REPLY THAT THERE WILL BE
A DELAY IN GRANTING RECOGNITION WHILE THE AGENCY CONDUCTS ITS OWN
INDEPENDENT INVESTIGATION OF THE UNION'S COMPLIANCE WITH THE FILING
REQUIREMENTS OF SECTION 7111(E). IN MY OPINION, IT WOULD CLEARLY BE
INIMICAL TO THE VERY PURPOSES OF THE STATUTE, IF AN AGENCY WERE
PERMITTED TO USURP THE ROLE OF THE ASSISTANT SECRETARY OR THE AUTHORITY
IN THESE MATTERS.
RESPONDENT FURTHER CONTENDS THAT ONE OF ITS REASONS FOR ASSERTING
THAT AN AGENCY HAS A ROLE, IS THAT IT HAS BEEN UNABLE TO CONVINCE THE
AUTHORITY THAT THE AUTHORITY ITSELF HAS A VITAL ROLE TO PLAY IN THE
CERTIFICATION PROCEDURES OF SECTION 7111. THUS, RESPONDENT ARGUES THAT
THE FILING REQUIREMENTS OF THE STATUTE ARE DIFFERENT FROM THE EXECUTIVE
ORDER IN THAT SECTION 7111(E) REQUIRES A LABOR ORGANIZATION TO FILE A
COPY OF ITS CONSTITUTION AND BYLAWS WITH THE AUTHORITY AND, SECTION
7111(F) SEEMS TO "REQUIRE" THE AUTHORITY TO MAKE A DETERMINATION IN
EVERY CASE THAT THE LABOR ORGANIZATION IS OR "IS NOT" SUBJECT TO CORRUPT
INFLUENCES OPPOSED TO DEMOCRATIC PRINCIPLES. RESPONDENT, THEREFORE,
CONTENDS THAT IN EVERY REPRESENTATION CASE WHERE A LABOR ORGANIZATION
SEEKS A CERTIFICATION AS EXCLUSIVE REPRESENTATIVE, THE AUTHORITY MUST -
AS A CONDITION PRECEDENT TO GRANTING THE CERTIFICATE - MAKE AN
AFFIRMATIVE DETERMINATION THAT THE LABOR ORGANIZATION "IS FREE FROM
CORRUPT INFLUENCES OR INFLUENCES OPPOSED TO DEMOCRATIC PRINCIPLES."
WHILE I HAVE GONE TO SOME LENGTH TO FAIRLY SET FORTH RESPONDENTS'
PRINCIPAL ARGUMENT, I MAKE NO FINDING AS TO ITS MERITS. ASSUMING,
ARGUENDO, THAT CONGRESS INTENDED TO PLACE THIS ADDITIONAL STEP INTO THE
CERTIFICATION PROCEDURE, IT WOULD BE UP TO THE AUTHORITY TO DETERMINE
WHETHER IT WOULD EXERCISE THIS RESPONSIBILITY (1) IN A REPRESENTATION
PROCEEDING, (2) A COLLATERAL ADMINISTRATIVE INVESTIGATION BY THE
AUTHORITY, (3) DEFERENCE TO AN ASSISTANT SECRETARY DETERMINATION UNDER
SECTION 7120, OR (4) SOME OTHER METHOD. IN ANY EVENT, I CONCLUDE THAT
WHATEVER RESPONSIBILITY THE AUTHORITY MAY OR MAY NOT HAVE UNDER SECTION
7111(F)(1), I FIND NO SUPPORT IN SECTION 7111 FOR HOLDING THAT A LABOR
ORGANIZATION'S COMPLIANCE WITH SECTION 7111(E) IS LITIGABLE IN AN UNFAIR
LABOR PRACTICE PROCEEDING.
4. WHEN IS THE PROPER TIME TO RAISE ISSUES CONCERNING COMPLIANCE
WITH SECTION 4111(E)? I AGREE WITH THE GENERAL COUNSEL THAT RESPONDENT
SHOULD HAVE RAISED THIS ISSUE PRIOR TO THE ISSUANCE OF THE
CERTIFICATIONS. WHETHER OR NOT THE ISSUE WOULD BE RAISED UNDER PART
2422 OF THE INTERIM RULES AND REGULATIONS, AS ASSERTED BY THE GENERAL
COUNSEL, IS A MATTER FOR THE AUTHORITY TO DECIDE. CLEARLY, HOWEVER, IT
WOULD HAVE BEEN LOGICAL FOR THE RESPONDENT AT LEAST TO HAVE ATTEMPTED TO
RAISE THIS ISSUE DURING THE REPRESENTATION PROCEEDING, THE PURPOSE OF
WHICH WAS TO DECIDE WHETHER THE LABOR ORGANIZATIONS SEEKING EXCLUSIVE
REPRESENTATIONS WERE ENTITLED TO RECOGNITION. IF ANY AGENCY WERE TO BE
PERMITTED TO CHALLENGE A LABOR ORGANIZATION'S COMPLIANCE WITH SECTION
4111(E), IT SEEMS TO ME THAT THE APPROPRIATE TIME TO DO THIS WOULD BE
PRIOR TO THE CERTIFICATION, AND NOT AFTERWARDS.
THE SUPREME COURT, IN RAY BROOKS V. NLRB, 348 U.S. 96, UPHELD THE
BOARD'S ONE-YEAR CERTIFICATION RULE AND FOUND THE EMPLOYEE GUILTY OF A
REFUSAL TO BARGAIN WHEN IT SOUGHT "TO VINDICATE THE RIGHTS OF ITS
EMPLOYEES" TO DESERT THE CERTIFIED UNION. THE COURT STATED THAT:
ALTHOUGH THE BOARD MAY, IF THE FACTS WARRANT, REVOKE A CERTIFICATION
OR AGREE NOT TO PURSUE
A CHARGE OF AN UNFAIR LABOR PRACTICE, THESE ARE MATTERS FOR THE
BOARD; THEY DO NOT JUSTIFY
EMPLOYER SELF-HELP OR JUDICIAL INTERVENTION. THE UNDERLYING PURPOSE
OF THIS STATUTE IS
INDUSTRIAL PEACE. TO ALLOW EMPLOYERS TO RELY ON EMPLOYEES' RIGHTS IN
REFUSING TO BARGAIN WITH
THE FORMALLY DESIGNATED UNION IS NOT CONDUCIVE TO THAT END, IT IS
INIMICAL TO IT.
IN THE PRESENT CASE, THE RESPONDENTS FAILED TO TIMELY RAISE THIS
ISSUE. FURTHERMORE, SINCE ONLY THE AUTHORITY MAY REVOKE A CERTIFICATION
- WHICH HAS NOT BEEN DONE IN THIS MATTER - RESPONDENT MAY NOT USURP THAT
AUTHORITY AND REFUSE TO TREAT WITH AFGE AS IF THE CERTIFICATIONS HAD
BEEN REVOKED. TO DO SO IS TO ENGAGE IN THE VERY KIND OF "SELF-HELP"
CONDEMNED BY THE SUPREME COURT.
WHILE IT IS TRUE THAT AFGE PETITIONED THE FEDERAL LABOR RELATIONS
COUNCIL FOR A RULING ON A "MAJOR POLICY ISSUE" AFTER THE CERTIFICATIONS
AND WHILE THE COUNCIL IN FLRC NO. 78P-1 (AUGUST 16, 1978) DENIED THE
REQUEST AND SEEMED TO SUGGEST THE MATTERS COULD BE RESOLVED IN A SECTION
19(A) HEARING UNDER THE ORDER, I DO NOT FIND THIS TO BE DISPOSITIVE ON
THE QUESTION OF WHETHER RESPONDENT (AND NOT AFGE) SHOULD HAVE RAISED
THIS ISSUE IN A PROCEEDING BEFORE THE ASSISTANT SECRETARY PRIOR TO
CERTIFICATION. ACCORDINGLY, I REJECT RESPONDENTS CONTENTION THAT IT
RAISED THIS ISSUE AT THE EARLIEST OPPORTUNITY; I.E., IN THE UNFAIR
LABOR PRACTICE PROCEEDING.
IN VIEW OF THIS DETERMINATION, I NEED NOT DISCUSS THE GENERAL
COUNSEL'S CONTENTION THAT THE CERTIFICATIONS ISSUED IN CASE NO. 3-CA-338
WERE ISSUED IN 1977, PRIOR TO ENACTMENT OF THE STATUTE WHEN THERE WAS NO
PROVISION COMPARABLE TO SECTION 7111(E) REQUIRING THE SUBMISSION OF SUCH
DOCUMENTS, AND THAT THE STATUTE SHOULD NOT BE APPLIED RETROACTIVELY.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. RESPONDENT DPDS REFUSED TO BARGAIN WITH THE EXCLUSIVE
REPRESENTATIVE, THE UNION.
SECTION 7116(A)(5) OF THE STATUTE MAKES IT AN UNFAIR LABOR PRACTICE
"TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED BY THIS CHAPTER." SECTION 7111 IMPOSES AN
OBLIGATION ON AN AGENCY TO "ACCORD EXCLUSIVE RECOGNITION" TO A LABOR
ORGANIZATION CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE PURSUANT TO THAT
SECTION.
CERTIFICATIONS OF REPRESENTATIVES WERE ISSUED IN EACH OF THE THREE
DPDS REGIONS IN CASE 3-CA-338 IN MAY AND JUNE, 1977 (G.C. EXH. NOS. 2,
3, 4). THESE CERTIFICATIONS SPECIFICALLY PROVIDE THAT PURSUANT TO
SECTION 10(E) OF EXECUTIVE ORDER 11491, AS AMENDED, THE UNION,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
AND METAL TRADES DEPARTMENT, AFL-CIO ARE THE EXCLUSIVE REPRESENTATIVE OF
ALL THE EMPLOYEES IN APPROPRIATE UNITS. PURSUANT TO SECTION 7135(A)(1)
OF THE STATUTE THESE CERTIFICATIONS UNDER THE EXECUTIVE ORDER CONTINUE
UNDER THE STATUTE. THESE CERTIFICATIONS ARE NOT SUBJECT TO COLLATERAL
ATTACK IN THIS PROCEEDING.
WHEN THE UNION REQUESTED BARGAINING IN THE THREE REGIONS ON MAY 29,
1979, IT WAS ACTING AS THE LEAD UNION PURSUANT TO DELEGATIONS BY THE
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
AND METAL TRADES DEPARTMENT, AFL-CIO WHICH WERE FORWARDED TO RESPONDENT
DPDS ON FEBRUARY 7, 1979 (G.C. EXH. NO. 6). THEREFORE, THE UNION WAS
ACTING AS THE LEAD UNION OF THE EXCLUSIVE REPRESENTATIVE OF THE
EMPLOYEES IN THE APPROPRIATE UNITS.
YET, RESPONDENT DPDS REFUSED TO BARGAIN AS REQUESTED (G.C. EXH. NO.
14). SECTION 7114(A)(4) OF THE STATUTE PROVIDES THAT, "ANY AGENCY AND
ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE UNIT IN THE AGENCY,
THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD
FAITH FOR THE PURPOSES OF ARRIVING AT A COLLECTIVE-BARGAINING AGREEMENT
. . ." THE PRINCIPLE OF EXCLUSIVE REPRESENTATIVE, THAT THE EMPLOYER MUST
BARGAIN WITH THE CERTIFIED UNION AND ONLY WITH THAT BODY, HAS BEEN WELL
ESTABLISHED IN THE PRIVATE SECTOR, J.I. CASE CO. V. N.L.R.B., 321 U.S.
332, 64 S.CT. 576, 88 L.ED. 762 (1944); EMPORIUM CAPWELL CO. V. WESTERN
ADDITION COMMUNITY ORGANIZATION, 420 U.S. 50, 95 S.CT. 977, 43 L.ED.2D
12 (1975) AND THE DUTY TO BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE HAS
ALSO BEEN RECOGNIZED BY THE AUTHORITY.
ON THE BASIS OF THE FOREGOING, I CONCLUDE THAT RESPONDENT DPDS HAS
VIOLATED SECTION 7116(A)(5) IN TWO RESPECTS: FIRST, RESPONDENT HAS
REFUSED TO ACCORD RECOGNITION TO AFGE AS THE EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES. SECOND, RESPONDENT HAS REFUSED AFGE'S REQUEST TO
NEGOTIATE IN GOOD FAITH AS REQUIRED BY THE STATUTE.
IN ADDITION, UNDER THE ASSISTANT SECRETARY'S DECISIONS IT IS WELL
SETTLED THAT "A VIOLATION OF ANY SUBSECTION OF SECTION 19(A), OTHER THAN
SECTION 19(A)(1), NECESSARILY TENDS TO INTERFERE WITH, RESTRAIN, OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER
AND, THEREFORE, ALSO IS VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER,"
SMALL BUSINESS ADMINISTRATION, RICHMOND, VIRGINIA, DISTRICT OFFICE,
A/SLMR NO. 674, 6 A/SLMR 350 (1976). THE SAME REASONING IS APPLICABLE
TO VIOLATIONS UNDER THE STATUTE. ACCORDINGLY, I FIND AND CONCLUDE THAT
RESPONDENT DPDS ALSO VIOLATED SECTION 7116(A)(1) WHICH MAKES IT AN
UNFAIR LABOR PRACTICE "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS
CHAPTER."
IN HIS BRIEF, THE GENERAL COUNSEL DOES NOT CONTEND THAT A REFUSAL TO
BARGAIN VIOLATION OF SECTION 7116(A)(5) ALSO CONSTITUTES A VIOLATION OF
SECTION 7116(A)(8). /18/ ACCORDINGLY, I MAKE NO FINDING IN THIS RESPECT
BUT NOTE, IN PASSING, THAT IF A VIOLATION OF SECTION 7116(A)(8) WERE
FOUND, IT IS ALREADY ADEQUATELY REMEDIED BY THE REMEDIAL PROVISION OF
THE RECOMMENDED ORDER HEREIN.
B. THE REFUSAL BY RESPONDENT DPDS TO HONOR THE DUES DEDUCTION
AUTHORIZATIONS SUBMITTED SUBSEQUENT TO JANUARY 11, 1979.
THE GENERAL COUNSEL CONTENDS THAT THE REFUSAL BY RESPONDENT DPDS TO
HONOR THE 42 SEPARATE REQUESTS AND AUTHORIZATIONS TO DEDUCT DUES BY
EMPLOYEES IN THE DPDS REGIONAL UNITS CONSTITUTES NONCOMPLIANCE WITH
RESPONDENT'S STATUTORY OBLIGATIONS UNDER SECTION 7115(A) WHICH IN
PERTINENT PART, STATES AS FOLLOWS:
SEC. 7115. ALLOTMENTS TO REPRESENTATIVES
(A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
A WRITTEN ASSIGNMENT
WHICH AUTHORIZES THE AGENCY TO DEDUCT FROM THE PAY OF THE EMPLOYEE
AMOUNTS FOR THE PAYMENT OF
REGULAR AND PERIODIC DUES OF THE EXCLUSIVE REPRESENTATIVE OF THE
UNIT, THE AGENCY SHALL HONOR
THE ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE
ASSIGNMENT. ANY SUCH
ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE REPRESENTATIVE OR
THE EMPLOYEE. . . .
AND, SINCE SECTION 7116(A)(8) OF THE STATUTE MAKES IT AN UNFAIR LABOR
PRACTICE FOR AN AGENCY "TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY
PROVISIONS OF THIS CHAPTER," THE GENERAL COUNSEL FURTHER CONTENDS THAT
RESPONDENT DPDS, BY REFUSING TO COMPLY WITH SECTION 7115(A) HAS
COMMITTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECTION 7116(A)(8).
THERE IS NO DISPUTE THAT 42 EMPLOYEES SIGNED DUES WITHHOLDING
AUTHORIZATION REQUESTS AND THAT THESE WERE SUBMITTED TO RESPONDENT DPDS
WHICH REFUSED TO HONOR THEM. THERE IS NO DISPUTE THAT THE EMPLOYEES
BELONG TO AN APPROPRIATE UNIT WHICH IS REPRESENTED BY A CERTIFIED
EXCLUSIVE REPRESENTATIVE, I.E., AFGE, IAM AND MTC, JOINTLY. AND I HAVE
FOUND THAT AFGE, THE LEAD UNION, IS A LABOR ORGANIZATION AS DEFINED IN
THE STATUTE. THE FACT THAT RESPONDENT DPDS HAS VOLUNTARILY ELECTED NOT
TO "RECOGNIZE" AFGE CANNOT BE USED AS A BASIS FOR ASSERTING AS A DEFENSE
THAT AN AGENCY MAY NOT CHECK OFF DUES TO A LABOR ORGANIZATION WHICH HAS
NOT BEEN "RECOGNIZED."
THE FACT THAT IAM AND MTC CHOSE TO DESIGNATE AFGE AS THE LEAD UNION
IN NEGOTIATIONS IS NONE OF THE AGENCY'S CONCERN. THE AMOUNT OF THE DUES
AND THE METHOD OF DISBURSEMENT IS ALSO NONE OF THE AGENCY'S CONCERN.
/19/ IT HAS BEEN HELD UNDER THE EXECUTIVE ORDER THAT SUCH MATTERS
INVOLVE THE INTERNAL AFFAIRS OF THE UNION, AN AREA IN WHICH AGENCIES ARE
NOT ALLOWED TO INTERFERE. /20/ THE PROHIBITION AGAINST AGENCY
INTERFERENCE INTO UNION INTERNAL TRANSACTIONS PROTECTS AND PROMOTES THE
BARGAINING PROCESS AND SHOULD BE CONTINUED AS A POLICY MATTER UNDER THE
STATUTE.
BY WAY OF BACKGROUND IT SHOULD BE NOTED THAT UNDER THE EXECUTIVE
ORDER DUES WITHHOLDING ARRANGEMENTS WERE CARRIED OUT IN ACCORDANCE WITH
THE CONTRACTUAL ARRANGEMENTS BETWEEN THE PARTIES. AN AGENCY WAS ONLY
REQUIRED TO HONOR DUES ALLOTMENT REQUESTS IF THE CONTRACT PROVIDED FOR
THEM. HOWEVER, ONCE A DUES STATUS AND AN EMPLOYER'S UNLAWFUL REVOCATION
OF DUES ALLOTMENT HAS BEEN HELD TO BE PART AND PARCEL OF A FAILURE TO
CONTINUE TO ACCORD APPROPRIATE RECOGNITION CONSTITUTING A VIOLATION OF
SECTION 19(A)(5) UNDER THE ORDER. SEE U.S. DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS, TENN.,
A/SLMR NO. 106, 1 A/SLMR 490 (1917).
TODAY, IN SITUATIONS LIKE THAT PRESENTED HERE, AN AGENCY'S OBLIGATION
TO DEDUCT DUES IS BASED, NOT UPON A CONTRACTUAL OBLIGATION, BUT RATHER,
UPON AN OBLIGATION IMPOSED BY THE STATUTE. MOREOVER, THE OBLIGATION IS
MANDATORY. THIS CONCLUSION FOLLOWS FROM THE MANDATORY TERMINOLOGY USED
IN THE PHRASE "SHALL HONOR THE ASSIGNMENT" AS WELL AS THE FOLLOWING
LEGISLATIVE HISTORY EXCERPTED FROM HOUSE REPORT NO. 95-1403 (JULY 31,
1978) WHICH ACCOMPANIED H.R. 11280. /21/
ALLOTMENTS TO REPRESENTATIVES
SECTION 7115 PROVIDES FOR THE WITHHOLDING OF LABOR ORGANIZATION DUES
THROUGH PAYROLL
DEDUCTIONS. THE SECTION REFLECTS A COMPRISE BETWEEN TWO SHARPLY
CONTRASTING POSITIONS WHICH
THE COMMITTEE CONSIDERED: NO GUARANTEE OF WITHHOLDING FOR ANY UNIT
EMPLOYEE AND MANDATORY
PAYMENT BY ALL UNIT EMPLOYEES ("AGENCY SHOP"). THE COMMITTEE
BELIEVES SECTION 7115 TO BE A
FAIR RESOLUTION FOR AGENCIES, LABOR ORGANIZATIONS, AND EMPLOYEES.
SUBSECTION (A) PROVIDES THAT IF AN EMPLOYEE IN AN EXCLUSIVELY
REPRESENTED UNIT PRESENTS TO
THE AGENCY A WRITTEN ASSIGNMENT AUTHORIZING THE AGENCY TO DEDUCT THE
LABOR ORGANIZATION'S DUES
FROM THE EMPLOYEES' PAY EACH PAY PERIOD, THE AGENCY MUST HONOR THE
ASSIGNMENT AND MUST DEDUCT
THE DUES. THE DECISION TO PAY, OR NOT TO PAY IS SOLELY THE
EMPLOYEE'S. IF THE EMPLOYEE
DECIDES TO HAVE DUES WITHHELD, THE AGENCY MUST HONOR THAT DECISION.
THE ALLOTMENTS ARE TO BE
MADE AT NO COST TO THE EMPLOYEES OR TO THE LABOR ORGANIZATION.
ASSIGNMENTS NORMALLY ARE TO BE
IRREVOCABLE FOR ONE YEAR.
SINCE CONGRESS HAS SAID THAT THE AGENCY (1) "MUST HONOR THE
ASSIGNMENT," (2) "MUST DEDUCT THE DUES," AND (3) "MUST HONOR THE
EMPLOYEE'S DECISION, I CAN ONLY CONCLUDE THAT THE AGENCY'S OBLIGATION IS
MANDATORY AND ITS ROLE IS MINISTERIAL IN NATURE.
BASED UPON MY REVIEW OF THE RECORD, I FIND IN AGREEMENT WITH THE
GENERAL COUNSEL, THAT RESPONDENT DPDS HAS FAILED AND REFUSED TO COMPLY
WITH SECTION 7115(A). HAVING SO CONCLUDED, THE QUESTION REMAINS WHETHER
RESPONDENT DPDS HAS COMMITTED ANY UNFAIR LABOR PROVISION IN SECTION 7116
OF THE STATUTE.
SECTION 7116(A)(8) IS A NEW STATUTORY PROVISION IN THE SENSE THAT
THERE IS NO PARALLEL PROVISION IN THE EXECUTIVE ORDER OR, BY ANALOGY TO
THE PRIVATE SECTOR, IN THE LABOR-MANAGEMENT RELATIONS ACT, AS AMENDED.
SECTION 7116(A)(8), AS PREVIOUSLY NOTED, MAKES IT AN UNFAIR LABOR
PRACTICE FOR AN AGENCY "TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY
PROVISION OF THIS CHAPTER." THE USE OF THE WORD "ANY" SUPPORTS AN
INTERPRETATION THAT THIS SECTION MAY HAVE BEEN INTENDED TO BE CONSTRUED
BROADLY. RESEARCH OF THE LEGISLATIVE HISTORY, HOWEVER, REVEALS VERY
LITTLE INFORMATION TO EXPLAIN WHAT CONGRESS INTENDED TO BE ENCOMPASSED
WITHIN THE BROAD LANGUAGE OF SECTION 7116(A)(8), WHICH, AT AN EARLIER
STAGE IN THE LEGISLATIVE PROCESS, WAS NUMBERED 7117(A)(7). HOUSE REPORT
NO. 95-1403 (JULY 31, 1978) WHICH ACCOMPANIED H.R. 11280 STATES AT PAGE
50 AS FOLLOWS: /22/
THE LANGUAGE "FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER" USED IN SECTION
7116(A)(7) AND SECTION 7116(B)(8) IS INTENDED TO INCLUDE THE FAILURE
OR REFUSAL ON THE PART OF
AN AGENCY OR A LABOR ORGANIZATION TO COMPLY WITH ANY ORDER OR
DECISION ISSUED IN ACCORDANCE
WITH CHAPTER 71 SUCH AS THE FINAL ORDER OF THE AUTHORITY IN AN UNFAIR
LABOR PRACTICE
PROCEEDING. THIS DOES NOT IN ANY WAY AFFECT THE RIGHTS OF THE
AUTHORITY OR ANY PERSON UNDER
SECTION 7123, BELOW (JUDICIAL REVIEW; ENFORCEMENT).
THE USE OF THE WORD "INCLUDE" SUGGESTS THAT FAILURE TO COMPLY WITH AN
ORDER OR DECISION OF THE AUTHORITY WAS ONLY ONE EXAMPLE OF WHAT WAS
INTENDED TO BE COVERED BY THIS STATUTORY PROVISION. IN THE ABSENCE OF
LEGISLATIVE HISTORY TO THE CONTRARY, IT SEEMS REASONABLE TO ASSUME THAT
CONGRESS INTENDED THAT THE FEDERAL LABOR RELATIONS AUTHORITY WOULD USE
ITS EXPERTISE TO DETERMINE, ON A CASE-BY-CASE BASIS, THE SCOPE OF
SECTION 7116(A)(8). THE INSTANT PROCEEDING PRESENTS SUCH AN
OPPORTUNITY.
UNDER THE EXECUTIVE ORDER, IT WAS AN UNFAIR LABOR PRACTICE FOR AN
AGENCY TO REFUSE TO HONOR CHECKOFF AUTHORIZATIONS WHEN SUCH OBLIGATION
WAS IMPOSED BY CONTRACT. CERTAINLY, AN OBLIGATION IMPOSED BY STATUTE
ALSO MUST BE AN UNFAIR LABOR PRACTICE. FURTHERMORE, SINCE CONGRESS
INTENDED SECTION 7116(A)(8) TO INCLUDE NONCOMPLIANCE WITH AN ORDER OF
THE AUTHORITY, CERTAINLY THERE SHOULD BE LITTLE DOUBT THAT NONCOMPLIANCE
WITH A CLEAR STATUTORY PROVISION IS ALSO COVERED. ACCORDINGLY, I FIND
THAT RESPONDENT DPDS, BY FAILING TO COMPLY WITH SECTION 7120(A), HAS
COMMITTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECTION 7116(A)(8) OF
THE STATUTE.
THE GENERAL COUNSEL ALLEGES IN HIS COMPLAINT /23/ THAT RESPONDENT
DPDS HAS ALSO VIOLATED SECTIONS 7116(A)(1) AND (5) BY ITS REFUSAL TO
HONOR EMPLOYEES' DUES ALLOTMENT REQUESTS. I AGREE. RESPONDENT'S
OBLIGATION IN THIS RESPECT IN NOT ONLY DERIVED FROM SECTION 7115(A) BUT
ALSO FROM SECTION 7111 WHICH REQUIRES AN AGENCY TO ACCORD EXCLUSIVE
RECOGNITION TO A LABOR ORGANIZATION LAWFULLY SELECTED AS EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES. TO REFUSE TO HONOR DUES ALLOTMENT
REQUESTS IS, IN MY OPINION, TANTAMOUNT TO REFUSING TO ACCORD RECOGNITION
TO THE EXCLUSIVE REPRESENTATIVE. IT IS AN INTEGRAL PART OF THE
RECOGNITION PROCESS. JUST AS IT WAS A VIOLATION UNDER THE EXECUTIVE
ORDER TO WITHDRAW RECOGNITION BY DISCONTINUING THE CHECKOFF OF DUES, I
CONCLUDE THAT IT IS A VIOLATION OF SECTION 7116(A)(5) OF THE STATUTE TO
REFUSE TO ACCORD RECOGNITION AB INITIO, BY REFUSING TO HONOR DUES
WITHHOLDING ALLOTMENTS TO THE EXCLUSIVE REPRESENTATIVE.
FURTHERMORE, SINCE SUCH IMPROPER CONDUCT BY RESPONDENT DENIGRATES THE
STATUS OF THE LABOR ORGANIZATION IN THE EYES OF THE EMPLOYEES, IT IS MY
VIEW THAT SUCH CONDUCT HAS THE CONCOMITANT EFFECT OF INTERFERING WITH,
RESTRAINING, AND COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS
UNDER THE STATUTE TO ASSIST A LABOR ORGANIZATION. ACCORDINGLY, I FIND
AN INDEPENDENT VIOLATION OF SECTION 7116(A)(1) BASED UPON THIS CONDUCT.
C. THE REFUSAL BY RESPONDENT DLA TO BARGAIN, UPON REQUEST, WITH
AFGE, THE EXCLUSIVE REPRESENTATIVE.
THE UNION WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF ALL THE
EMPLOYEES OF RESPONDENT DLA IN CONSOLIDATED UNITS OF NON-PROFESSIONALS
(G.C. EXH. NO. 5) AND PROFESSIONALS (G.C. EXH. NO. 21) ON MARCH 6, 1979.
/24/ THESE CONSOLIDATIONS WERE AFFECTED PURSUANT TO SECTION 7112(D) OF
THE STATUTE BY WHICH THE AUTHORITY HAS CERTIFIED THE UNION AS THE
EXCLUSIVE REPRESENTATIVE OF A NEW LARGER UNIT. IT WAS IN THIS CAPACITY
THAT THE UNION WAS ACTING WHEN IT REQUESTED, AND RESPONDENT DLA REFUSED,
TO COMMENCE CONTRACT NEGOTIATIONS ON MAY 24, 1979, MAY 30, 1979 AND MAY
31, 1979.
FOR THE SAME REASONS DISCUSSED ABOVE IN CONNECTION WITH RESPONDENT
DPDS, I FIND AND CONCLUDE THAT RESPONDENT DLA HAS VIOLATED SECTION
7116(A)(5) BY REFUSING TO ACCORD RECOGNITION TO AFGE AND BY REFUSING TO
NEGOTIATE IN GOOD FAITH WITH AFGE, THE EXCLUSIVE REPRESENTATIVE. BY SO
DOING, RESPONDENT DLA HAS THEREBY VIOLATED SECTION 7116(A)(1). /25/
VI. THE REMEDY
THE GENERAL COUNSEL REQUESTS THAT RESPONDENT DPDS BE ORDERED TO MAKE
THE UNION WHOLE FOR ANY LOSS IT MAY HAVE SUSTAINED AS A RESULT OF THE
UNLAWFUL REFUSAL TO HONOR VALID DUES DEDUCTION AUTHORIZATIONS. IN VIEW
OF RESPONDENT'S VIOLATION OF THE STATUTORY MANDATE TO HONOR DUES
ALLOTMENT REQUESTS, THE GENERAL COUNSEL'S REQUEST APPEARS TO BE A
REASONABLE WAY OF RESTORING THE STATUS QUO TO AFGE WHICH, BUT FOR
RESPONDENT'S UNLAWFUL ACTION, WOULD HAVE RECEIVED THESE DUES AND BEEN
ABLE TO UTILIZE SUCH MONEY IN FURTHERANCE OF ITS DUTIES AS CERTIFIED
EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES. CLEARLY THEN, SUCH REMEDY
WOULD BE COMPENSATORY RATHER THAN PUNITIVE. MOREOVER, SUCH REMEDY
WOULD
BE AN EFFECTIVE DETERRENT TO SIMILAR VIOLATIONS BY AGENCIES IN THE
FUTURE. IN THE PRIVATE SECTOR, THERE IS PRECEDENT FOR THIS REMEDY.
/26/
WHEN RESPONDENT ELECTED TO KNOWINGLY VIOLATE THE STATUTE IT ACTED AS
IT" PERIL AND RAN THE RISK OF BEING WRONG. ASSUMING ARGUENDO, THAT
RESPONDENT BELIEVED ITS ACTIONS WERE LAWFUL, IT COULD HAVE CHECKED OFF
THE DUES ANYWAY AND PLACED THE MONEY IN ESCROW WHILE AWAITING A
DETERMINATION FROM THE FEDERAL LABOR RELATIONS AUTHORITY AS TO WHETHER
IT ACTED PROPERLY AND LAWFULLY. THERE IS PRECEDENT FOR VOLUNTARILY
ESTABLISHING AN ESCROW ACCOUNT IN A CASE ARISING UNDER THE EXECUTIVE
ORDER. /27/ THERE IS ALSO PRECEDENT UNDER THE LABOR MANAGEMENT
RELATIONS ACT. /28/
HOWEVER, I AM BOUND BY THE DECISIONS OF THE ASSISTANT SECRETARY UNTIL
SUCH TIME AS THOSE DECISIONS ARE OVERRULED BY THE AUTHORITY OR FOUND TO
BE DISTINGUISHABLE, FOR SOME PERSUASIVE REASON. /29/ BASED UPON THE
APPLICABLE PRECEDENT, I MUST REJECT THE GENERAL COUNSEL'S REQUEST. IN
1971, /30/ THE ASSISTANT SECRETARY FULLY CONSIDERED THIS ISSUE IN A CASE
INVOLVING THE DEPARTMENT OF DEFENSE AND STATED AS FOLLOWS:
THE RESPONDENT'S ACTION IN REVOKING THE DUES DEDUCTION ALLOTMENTS
PROVIDES A NOVEL REMEDIAL
QUESTION. WHILE AN ORDER THAT THE RESPONDENT ACCORD RECOGNITION TO
THE COMPLAINANT AND GIVE
EFFECT TO THE PARTIES NEGOTIATED AGREEMENT AND ANY DUES DEDUCTION
AUTHORIZATIONS WOULD APPEAR
TO REMEDY THE UNFAIR LABOR PRACTICES FOUND IN THIS CASE, IT MAY BE
ARGUED THAT THE COMPLAINANT
HAS NOT BEEN "MADE WHOLE" BECAUSE IT DID NOT RECEIVE RETROACTIVELY
THE "CHECKED OFF" DUES FROM
THE DATE OF REVOCATION. THE HEARING EXAMINER CONSIDERED THIS
POSSIBLE CONTENTION AND
RECOMMENDED THAT A REMEDY INCLUDING THE RETROACTIVE CHECKOFF OF DUES
WOULD IMPOSE AN UNDUE
HARDSHIP ON THE EMPLOYEES. THE COMPLAINANT DID NOT TAKE EXCEPTION TO
THIS RECOMMENDATION. I
AGREE WITH THE HEARING EXAMINER'S CONCLUSION IN THIS REGARD. WHILE
SECTION 21 OF THE
EXECUTIVE ORDER PROVIDES FOR THE ALLOTMENT OF DUES, THE OBLIGATIONS
OF MEMBERSHIP, SUCH AS THE
PAYMENT OF DUES, ARE STILL THE RESPONSIBILITY OF THE EMPLOYEE. IN MY
VIEW, THE REINSTITUTION
OF DUES DEDUCTIONS IN THIS CASE SATISFACTORILY REMEDIES THE IMPROPER
CONDUCT OF THE RESPONDENT
WITH RESPECT TO THE COMPLAINANT.
MORE RECENTLY, ON JUNE 18, 1979, AN ADMINISTRATIVE LAW JUDGE, RELIED
ON THE ABOVE CITED DECISION TO REJECT THE COMPLAINANT'S REQUEST FOR
REIMBURSEMENT OF BACK DUES BY THE AGENCY, AT NO EXPENSE TO THE
EMPLOYEES. ON APPEAL, THE JUDGE'S DECISION ON THIS ISSUE WAS ADOPTED BY
THE AUTHORITY, WITHOUT COMMENT, AS RECENTLY AS FEBRUARY 29, 1980. /31/
SINCE I AM UNABLE TO ORDER REIMBURSEMENT, I DO NOT REACH THE FURTHER
ISSUE PRESENTED BY GENERAL COUNSEL'S REQUEST "THAT INTEREST, AT THE
CURRENT RATE, BE ADDED TO ANY SUM AWARDED TO THE UNION."
HAVING FOUND THAT RESPONDENT DPDS HAS VIOLATED SECTIONS 7116(A)(1)(5)
AND (8) OF THE STATUTE AND HAVING FURTHER FOUND THAT RESPONDENT DLA HAS
VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND THAT
THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING SEPARATE
ORDERS, WHICH ARE DESIGNED TO REMEDY THE UNFAIR LABOR PRACTICES IN EACH
CASE IN THIS CONSOLIDATED PROCEEDING AND TO EFFECTUATE THE PURPOSES OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. /32/
ORDER
(CASE NO. 3-CA-294)
PURSUANT TO SECTIONS 7105(G)(3) AND 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT RESPONDENT, DEFENSE LOGISTICS AGENCY,
SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO RECOGNIZE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, AS THE
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
(B) REFUSING TO NEGOTIATE IN GOOD FAITH WITH AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, THE EXCLUSIVE REPRESENTATION OF ITS EMPLOYEES, OR WITH ANY
OTHER EXCLUSIVE
REPRESENTATIVE.
(C) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES BY
REFUSING TO RECOGNIZE AND
NEGOTIATE IN GOOD FAITH WITH AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH AMERICAN
FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, AS THE EXCLUSIVE REPRESENTATIVE FOR
ITS EMPLOYEES, IN TWO
NATIONWIDE CONSOLIDATED UNITS OF (1) NON-PROFESSIONAL EMPLOYEES AND
(2) PROFESSIONAL
EMPLOYEES, AS MORE FULLY DESCRIBED IN THE CERTIFICATIONS ISSUED IN
CASE NO. 22-09044 (UC) ON
MARCH 6, 1979, AND THEREAFTER AMENDED ON MAY 9, MAY 12, MAY 23, AND
JUNE 1. /33/
(B) POST AT ALL FACILITIES AND INSTALLATIONS OF THE DEFENSE LOGISTICS
AGENCY, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX A" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE DEFENSE
LOGISTICS AGENCY, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED WITH ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING, WITHIN
THIRTY (30) DAYS FROM
THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.
ORDER
(CASE NO. 3-CA-338)
PURSUANT TO SECTIONS 7105(G)(3) AND 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT RESPONDENT, DEFENSE LOGISTICS AGENCY,
DEFENSE PROPERTY DISPOSAL SERVICE, DEFENSE PROPERTY DISPOSAL REGION,
MEMPHIS, TENNESSEE, OGDEN, UTAH, AND COLUMBUS, OHIO, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO RECOGNIZE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, AND THE METAL
TRADES COUNCIL, AFL-CIO, THE
JOINTLY CERTIFIED EXCLUSIVE REPRESENTATIVE, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
(B) REFUSING TO NEGOTIATE IN GOOD FAITH WITH AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, OR METAL
TRADES COUNCIL, AFL-CIO,
THE JOINTLY CERTIFIED EXCLUSIVE REPRESENTATIVE, OR WITH ANY OTHER
EXCLUSIVE REPRESENTATIVE.
(C) REFUSING TO COMPLY WITH THE PROVISIONS OF SECTION 7115 OF THE
FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE BY REFUSING TO ACCEPT AND HONOR
VALID WRITTEN ASSIGNMENTS
FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR AND PERIODIC DUES TO
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
(D) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES BY
REFUSING TO RECOGNIZE AND
NEGOTIATE IN GOOD FAITH WITH THE EXCLUSIVE REPRESENTATIVE, AND BY
REFUSING TO ACCEPT AND HONOR
WRITTEN ASSIGNMENTS FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR
AND PERIODIC DUES TO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE.
(E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH AMERICAN
FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, AS EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, JOINTLY WITH THE
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, AND THE METAL
TRADES COUNCIL, AFL-CIO, IN
THE FOLLOWING APPROPRIATE UNITS:
ALL EMPLOYEES ASSIGNED TO DEFENSE PROPERTY DISPOSAL REGION, COLUMBUS,
OHIO, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
MEMPHIS, TENNESSEE,
EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND
SUPERVISORS AS DEFINED IN THE
ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
OGDEN, UTAH, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
(B) COMMENCING WITH THE FIRST PAY PERIOD AFTER THE DATE OF THIS
ORDER, DEDUCT REGULAR AND
PERIODIC DUES FROM THE PAY OF EMPLOYEES NAMED IN APPENDIX C WHO HAVE
EXECUTED VALID WRITTEN
ALLOTMENTS AND ALSO FROM ANY OTHER EMPLOYEE IN THE UNIT WHO MAY IN
THE FUTURE MAKE VOLUNTARY
ALLOTMENTS FOR SUCH PURPOSE, AND REMIT SUCH DUES TO THE EXCLUSIVE
REPRESENTATIVE, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
(C) POST ALL FACILITIES AND INSTALLATIONS OF THE DEFENSE LOGISTICS
AGENCY, DEFENSE PROPERTY
DISPOSAL SERVICE, DEFENSE PROPERTY DISPOSAL REGION, MEMPHIS,
TENNESSEE, OGDEN, UTAH, AND
COLUMBUS, OHIO, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX B" ON
FORMS TO BE FURNISHED BY
THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE
COMMANDING GENERAL OF THE DEFENSE PROPERTY DISPOSAL SERVICE, AND
SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDING GENERAL SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED WITH ANY
OTHER MATERIAL.
(D) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 2, 1980
WASHINGTON, D.C.
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT REFUSE TO RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES AT
DEFENSE LOGISTICS AGENCY BY REFUSING TO RECOGNIZE AND NEGOTIATE IN GOOD
FAITH WITH THEIR EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO.
WE WILL, UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AS EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES IN TWO NATIONWIDE CONSOLIDATED UNITS OF
(1) NON-SUPERVISORY NON-PROFESSIONAL EMPLOYEES, AND (2) NON-SUPERVISORY
PROFESSIONAL EMPLOYEES, AS MORE FULLY DESCRIBED IN THE ATTACHED UNIT
DESCRIPTIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1730 K STREET, N.W., ROOM 401, WASHINGTON, D.C., 20006; AND WHOSE
TELEPHONE NUMBER IS: (202) 653-7213.
APPENDIX B
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT REFUSE TO RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO, OR METAL TRADES COUNCIL, AFL-CIO,
THE JOINTLY CERTIFIED EXCLUSIVE REPRESENTATIVE, OR WITH ANY OTHER
EXCLUSIVE REPRESENTATIVE.
WE WILL NOT REFUSE TO RECOGNIZE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL ASSOCIATION OF MACHINISTS AND METAL
TRADES COUNCIL, AFL-CIO, AS THE JOINTLY CERTIFIED EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES, BY REFUSING TO ACCEPT AND HONOR VALID
WRITTEN ASSIGNMENTS FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR AND
PERIODIC DUES TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, AND COERCE OUR EMPLOYEES BY
REFUSING TO RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH THE EXCLUSIVE
REPRESENTATIVE, AND BY REFUSING TO ACCEPT AND HONOR VALID WRITTEN
ASSIGNMENTS FROM UNIT EMPLOYEES FOR THE PAYMENT OF REGULAR AND PERIODIC
DUES TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST, RECOGNIZE AND NEGOTIATE IN GOOD FAITH WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL-CIO, AND METAL TRADES COUNCIL, AFL-CIO,
AS EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES IN THE FOLLOWING
APPROPRIATE UNITS:
ALL EMPLOYEES ASSIGNED TO DEFENSE PROPERTY DISPOSAL REGION, COLUMBUS,
OHIO, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
ALL EMPLOYEES ASSIGNED TO DEFENSE PROPERTY DISPOSAL REGION, MEMPHIS,
TENNESSEE, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
ALL EMPLOYEES ASSIGNED TO THE DEFENSE PROPERTY DISPOSAL REGION,
OGDEN, UTAH, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, GUARDS AND SUPERVISORS AS
DEFINED IN THE ORDER.
WE WILL DEDUCT REGULAR AND PERIODIC DUES FROM THE PAY OF OUR
EMPLOYEES WHO HAVE EXECUTED VALID WRITTEN ALLOTMENTS AND ALSO FROM ANY
OTHER EMPLOYEE IN THE UNITS WHO MAY IN THE FUTURE MAKE VOLUNTARY
ALLOTMENTS FOR SUCH PURPOSE, AND REMIT SUCH DUES TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OR TO ANY OTHER EXCLUSIVE
REPRESENTATIVE DESIGNATED FOR THIS PURPOSE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 QUESTION CONCERNING THE NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1730 K STREET, N.W., ROOM 401, WASHINGTON, D.C., 20006; AND WHOSE
TELEPHONE NUMBER IS: (202) 653-7213.
APPENDIX C
NAMES OF EMPLOYEES WHO EXECUTED VALID WRITTEN ASSIGNMENTS
OF REGULAR AND PERIODIC DUES FOR PAYMENT TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
JAMES FELDER ROBERT B. BRINSON
WILLIAM HIGDON JACK BURMAN
RICHARD LARSEN RAYMOND GURULE
JAKE BERRYMAN LEROY JACKSON
HOWARD J. BAKER WILLIE D. MULLEN
FLOYD BROOKS THEORDORE J. POPLARCHIK
WILLIAM D. CARTER CRAIG E. RUSSELL
LOVELESS COFIELD FRANK J. SCHMIDT
MARY D. EMMONS LARRY JOE SCHULTZ
NANCY L. FISHER TIMOTHY W. SHAWGO
RALPH H. HARRIS JUDY M. SKINNER
JIMMY JOHNSON MARVIN C. SMITH
DORIS L. LANIER DEBORAH S. STRACNER
RICHARD L. LEWIS CHARLES E. TRYON
JOHN D. NIX RAYMOND VASQUEZ
ROBERT B. SHELTON ROY M. WEGER
ARTHUR C. SMALLS, SR. FRANK WHITE
SAMUEL TURNER LOIS J. WHITE
HOWARD O. WALKER JACQUELINE I. MARR
WILLIAM R. BARTLETT GEORGE E. SNOOK
THOMAS L. BITTMAN RALPH L. WILLIAMS
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7111(E) OF THE STATUTE PROVIDES AS FOLLOWS:
(E) A LABOR ORGANIZATION SEEKING EXCLUSIVE RECOGNITION SHALL SUBMIT
TO THE AUTHORITY AND
THE AGENCY INVOLVED A ROSTER OF ITS OFFICERS AND REPRESENTATIVES, A
COPY OF ITS CONSTITUTION
AND BYLAWS, AND A STATEMENT OF ITS OBJECTIVES.
NOT AT ISSUE IN THE INSTANT CASE IS ANY ALLEGATION THAT THE AFGE HAS
FAILED TO PROVIDE THE
RESPONDENT THE INFORMATION REQUIRED BY SEC. 7111(E) OF THE STATUTE.
/2/ THE AUTHORITY NOTES THAT SEC. 208.50 OF THE ASSISTANT SECRETARY'S
REGULATIONS (29 CFR 208.50) PROVIDES AS FOLLOWS:
SEC. 208.50 INVESTIGATIONS.
WHEN HE BELIEVES IT NECESSARY IN ORDER TO DETERMINE WHETHER ANY
PERSON HAS VIOLATED OR IS
ABOUT TO VIOLATE ANY PROVISIONS OF THIS PART (OTHER THAN SEC. 208.2,
BILL OF RIGHTS OF MEMBERS
OF LABOR ORGANIZATIONS OR SEC. 208.37, PROHIBITION OF CERTAIN
DISCIPLINE) THE DIRECTOR SHALL
HAVE THE AUTHORITY TO CAUSE AN INVESTIGATION TO BE CONDUCTED.
THE AUTHORITY TO INVESTIGATE POSSIBLE VIOLATIONS OF THIS PART (OT4ER
THAN SECS. 208.2 OR
208.37) SHALL NOT BE CONTINGENT UPON RECEIPT OF A COMPLAINT.
/3/ SECTION 7115(A) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 7115. ALLOTMENTS TO REPRESENTATIVES
(A) IF AN AGENCY HAS RECEIVED FROM AN EMPLOYEE IN AN APPROPRIATE UNIT
A WRITTEN ASSIGNMENT
WHICH AUTHORIZES THE AGENCY TO DEDUCT FROM THE PAY OF THE EMPLOYEE
AMOUNTS FOR THE PAYMENT OF
REGULAR AND PERIODIC DUES OF THE EXCLUSIVE REPRESENTATIVE OF THE
UNIT, THE AGENCY SHALL HONOR
THE ASSIGNMENT AND MAKE AN APPROPRIATE ALLOTMENT PURSUANT TO THE
ASSIGNMENT. ANY SUCH
ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVE REPRESENTATIVE OR
THE EMPLOYEE . . . .
/4/ THE HOUSE COMMITTEE REPORT ACCOMPANYING H.R. 11280 STATED, WITH
RESPECT TO SECTION 7115(A) AS REPORTED OUT OF COMMITTEE AND SUBSEQUENTLY
ENACTED AND SIGNED INTO LAW WITHOUT CHANGE, AS FOLLOWS:
ALLOTMENTS TO REPRESENTATIVES
SECTION 7115 PROVIDES FOR THE WITHHOLDING OF LABOR ORGANIZATION DUES
THROUGH PAYROLL
DEDUCTIONS. THE SECTION REFLECTS A COMPROMISE BETWEEN TWO SHARPLY
CONTRASTING POSITIONS WHICH
THE COMMITTEE CONSIDERED: NO GUARANTEE OF WITHHOLDING FOR ANY UNIT
EMPLOYEE AND MANDATORY
PAYMENT BY ALL UNIT EMPLOYEES ("AGENCY SHOP"). THE COMMITTEE
BELIEVES SECTION 7115 TO BE A
FAIR RESOLUTION FOR AGENCIES, LABOR ORGANIZATIONS, AND EMPLOYEES.
SUBSECTION (A) PROVIDES THAT IF AN EMPLOYEE IN AN EXCLUSIVELY
REPRESENTED UNIT PRESENTS TO
THE AGENCY A WRITTEN ASSIGNMENT AUTHORIZING THE AGENCY TO DEDUCT THE
LABOR ORGANIZATION'S DUES
FROM THE EMPLOYEE'S PAY EACH PAY PERIOD, THE AGENCY MUST HONOR THE
ASSIGNMENT AND MUST DEDUCT
THE DUES. THE DECISION TO PAY, OR NOT TO PAY, IS SOLELY THE
EMPLOYEE'S. IF THE EMPLOYEE
DECIDES TO HAVE DUES WITHHELD, THE AGENCY MUST HONOR THAT DECISION.
THE ALLOTMENTS ARE TO BE
MADE AT NO COST TO THE EMPLOYEES OR TO THE LABOR ORGANIZATION.
ASSIGNMENTS NORMALLY ARE TO BE
IRREVOCABLE FOR ONE YEAR. H.R. REP. NO. 95-1403, 95TH CONG., 2D
SESS. 48(1978).
SEE ALSO THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON
CONFERENCE, H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS. 155(1978), AS
FOLLOWS:
RIGHTS AND DUTIES OF LABOR ORGANIZATIONS AND AGENCIES
A. WITHHOLDING OF DUES
BOTH SENATE SECTION (7)231 AND HOUSE SECTION 7115(A) AUTHORIZE AN
AGENCY TO DEDUCT DUES
FROM THE PAY OF MEMBERS OF A LABOR ORGANIZATION. THE SENATE MAKES
THE OBLIGATIONS OF THE
AGENCY TO DEDUCT DUES FROM MEMBERS OF AN EXCLUSIVELY RECOGNIZED LABOR
ORGANIZATION DEPENDENT
UPON ITS AGREEMENT TO DO SO AS PART OF A NEGOTIATED AGREEMENT. HOUSE
SECTION 7115(A) STATES
THAT THE AGENCY SHALL MAKE SUCH DEDUCTION WHENEVER IT RECEIVES FROM
AN EMPLOYEE IN THE
APPROPRIATE UNIT A WRITTEN ASSIGNMENT AUTHORIZING IT. FURTHER, THE
HOUSE SPECIFIES THAT THE
ALLOTMENT SHALL BE MADE AT NO COST TO THE EXCLUSIVELY RECOGNIZED
LABOR ORGANIZATION OR THE
EMPLOYEE. THE SENATE RECEDES.
/5/ THE ONLY DECISION OF THE ASSISTANT SECRETARY RELIED UPON BY THE
ADMINISTRATIVE LAW JUDGE IN THIS REGARD IS UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE NAVY, NAVAL AIR RESERVE TRAINING UNIT,
MEMPHIS, TENNESSEE, 1 A/SLMR 490(1971), WHICH AROSE UNDER AND WAS
DECIDED PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.
AS PREVIOUSLY NOTED, THE INSTANT CASE ARISES UNDER THE STATUTE, THE
PROVISIONS OF WHICH ARE SIGNIFICANTLY DIFFERENT IN TERMS OF AN
EMPLOYEE'S RIGHT TO AUTHORIZE UNION DUES DEDUCTIONS AND THE EMPLOYER'S
OBLIGATION TO HONOR SUCH REQUEST. ADDITIONALLY, THE CASES ARE
DISTINGUISHABLE ON THEIR FACTS. THUS, IN 1 A/SLMR 490, MANAGEMENT
WITHDREW EXCLUSIVE RECOGNITION FROM THE UNION AND REVOKED DUES ALLOTMENT
AFTER AN EXTENSIVE REORGANIZATION WHICH RESULTED IN A DRASTIC DIMINUTION
IN THE SIZE OF THE BARGAINING UNIT. IN THE INSTANT CASE, BY CONTRAST,
THE RECORD DOES NOT REFLECT ANY CHANGED CIRCUMSTANCES ANTEDATING
RESPONDENTS' WITHDRAWAL OF RECOGNITION FROM AFGE AND CANCELLATION OF THE
EMPLOYEES' VALID DUES DEDUCTION AUTHORIZATION. THE OTHER CASE CITED BY
THE ADMINISTRATIVE LAW JUDGE, THE ADJUTANT GENERAL-GEORGIA, GEORGIA
NATIONAL GUARD, DEPARTMENT OF DEFENSE, ATLANTA, GEORGIA, 2 FLRA NO. 92
(1980), WHICH SIMILARLY AROSE UNDER THE EXECUTIVE ORDER, ALSO IS
FACTUALLY DISTINGUISHABLE FROM THE INSTANT CASE. THUS, AS NOTED ABOVE,
WHILE THE RECORD IN THE INSTANT CASE DOES NOT REFLECT ANY CHANGED
CIRCUMSTANCES PRIOR TO RESPONDENT'S WITHDRAWAL OF RECOGNITION FROM AFGE
AND CANCELLATION OF THE EMPLOYEES' VALID DUES DEDUCTION AUTHORIZATIONS,
IN GEORGIA NATIONAL GUARD THE AUTHORITY FOUND THAT CHANGED CIRCUMSTANCES
HAD OCCURRED WHICH JUSTIFIED MANAGEMENT'S SUBSEQUENT SUSPENSION OF UNION
DUES WITHHOLDING FOR CERTAIN INDIVIDUALS. IN THIS LATTER REGARD, THE
AUTHORITY FOUND THAT MANAGEMENT'S ASSIGNMENT OF CERTAIN SUPERVISORY
RESPONSIBILITIES TO 21 OF THE 22 "SMALL SHOP CHIEFS" AT ISSUE THEREIN
HAD RESULTED IN THEIR EXCLUSION FROM THE BARGAINING UNIT AS
"SUPERVISORS" UNDER THE EXECUTIVE ORDER, AND THAT THE SUBSEQUENT
SUSPENSION OF THEIR UNION DUES WITHHOLDING AUTHORIZATIONS THEREFORE WAS
PROPER.
/6/ PARAGRAPH 11 OF THE COMPLAINT IS HEREBY AMENDED TO CONFORM TO THE
EVIDENCE BY INCORPORATING A REFERENCE TO PARAGRAPH 9, WHICH APPEARS TO
HAVE BEEN INADVERTENTLY OMITTED.
/7/ HEREIN REFERRED TO INDIVIDUALLY AS AFGE, IAM, MTC OR COLLECTIVELY
AS UNIONS OR JOINT PETITIONER.
/8/ PARAGRAPH 11 OF THE COMPLAINT.
/9/ HEREIN REFERRED TO AS AFGE OR UNION
/10/ I RULED AT THE HEARING THAT THIS "DEFENSE" WAS NOT AVAILABLE TO
RESPONDENTS IN AN UNFAIR LABOR PRACTICE PROCEEDING AND REJECTED EVIDENCE
AND TESTIMONY WITH RESPECT TO THIS ISSUE. FOR REASONS DISCUSSED LATER,
I ADHERE TO THAT RULING. DOCUMENTARY EVIDENCE RELATIVE TO THIS ISSUE
HAS BEEN PLACED IN A REJECTED EXHIBIT FILE.
/11/ TO THE MAXIMUM EXTENT POSSIBLE, I HAVE ADOPTED VERBATIM THE
PROPOSED FINDINGS OF FACT SUBMITTED IN THE BRIEF FILED BY COUNSEL FOR
THE GENERAL COUNSEL.
/12/ FOR THIS REASON, THE TERM UNION IN ITS SINGULAR FORM REFERS TO
AFGE AS THE LEAD UNION IN THE DPDS CASE AS WELL AS TO AFGE, THE ONLY
UNION IN THE DLA CASE.
/13/ I FIND THAT IAM AND MTC ARE LABOR ORGANIZATIONS WITHIN THE
MEANING OF SECTION 7103(A)(4).
/14/ N.L.R.B. V. WESTEX BOOT & SHOE CO., 190 F.2D 12 (5TH CIR.
1951), REHEARING DENIED 190 F.2D 556 (5TH CIR. 1951)
/15/ N.L.R.B. V. HIGHLAND PARK MANUFACTURING CO., 71 S.CT. 758, 341
U.S. 322, 95 L.ED. 969(1951).
/16/ SEE ALSO GENERAL MOTORS, 120 NLRB 1215. THERE, THE BOARD
CONCLUDED THAT THE EMPLOYER AND THE UAW INTERNATIONAL UNION, BY THE
COURSE OF THEIR MULTIPLANT BARGAINING OVER A PERIOD OF YEARS HAD MERGED
120 INDIVIDUAL PLANT CERTIFICATIONS INTO ONE SINGLE COMPANY-WIDE UNIT.
HERE, DLA AND AFGE HAVE ACCOMPLISHED THE SAME CONSOLIDATION, WITH
AUTHORITY APPROVAL, THROUGH THE REPRESENTATION PROCEDURES PROVIDING FOR
CONSOLIDATION OF UNITS.
/17/ IN ITS BRIEF AT P. 37, RESPONDENT ASSERTS THAT IT DOES NOT
ALLEGE, AND NEVER HAS ALLEGED, THAT THE AFGE, OR ANY OFFICER OR
REPRESENTATIVE OF AFGE IS OR EVER HAS BEEN GUILTY OF ANY OVERT VIOLATION
OF ANY OF THE STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS.
/18/ FROM THIS I CONCLUDE THAT THE SECTION 7116(A)(8) ALLEGATION IN
PARAGRAPH 11 OF THE COMPLAINT WAS ONLY INTENDED TO ENCOMPASS THE REFUSAL
TO HONOR DUES WITHHOLDING REQUESTS.
/19/ EVEN ASSUMING, ARGUENDO, THAT THE RESPONDENT DPDS MAY LOOK
BEYOND THE CLEAR AUTHORIZATION TO DEDUCT THE DUES OF THE EXCLUSIVE
REPRESENTATIVE, THE AFGE, RESPONDENT DPDS OFFERED NO EVIDENCE THAT THE
DUES ARE BEING DEDUCTED BY OR FOR ANYONE BUT THE EXCLUSIVE
REPRESENTATIVE.
/20/ U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
F-1, JACKSON LAUNDRY FACILITY, FT. JACKSON, SOUTH CAROLINA, A/SLMR NO.
242(1973), A A/SLMR 60, 62; UTAH ARMY NATIONAL GUARD, SALT LAKE CITY,
UTAH, A/SLMR NO. 966(1978), 8 A/SLMR 69; INTERNAL REVENUE SERVICE,
OMAHA DISTRICT OFFICE, A/SLMR NO. 417, 4 A/SLMR 493, 496(1974).
/21/ LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978,
COMMITTEE PRINT NO. 96-7 (NOV. 19, 1979) AT P. 694.
/22/ IBID, AT P. 696.
/23/ PARAGRAPHS 7 AND 11 OF THE COMPLAINT.
/24/ THE FACT THAT THE CERTIFICATION FOR THE CONSOLIDATED UNIT OF
PROFESSIONAL EMPLOYEES WAS NOT ATTACHED TO THE CHARGE DOES NOT PRECLUDE
THE GENERAL COUNSEL FROM INCLUDING THIS UNIT IN THE COMPLAINT. IN THE
PRIVATE SECTOR, THE SUPREME COURT AND MANY CIRCUIT COURTS HAVE UPHELD
THE NLRB'S VIEW THAT A CHARGE IS NOT A PLEADING AND DOES NOT REQUIRE THE
SPECIFICITY OF A PLEADING. IT MERELY SERVES TO INITIATE A BOARD
INVESTIGATION TO DETERMINE WHETHER A COMPLAINT SHALL BE ISSUED. FANT
MILLING CO., 360 U.S. 301; TEXAS INDUSTRIES, 139 NLRB 365, 366 F.2D 128
(CA-5); NLRB V. BRASWELL MOTOR FREIGHT LINES INC., 486 F.2D 743 (CA-7).
FOR AN APPLICABLE CASE UNDER THE EXECUTIVE ORDER, SEE DEPT. OF THE AIR
FORCE HEADQUARTERS, AIR FORCE FLIGHT TEST CENTER, EDWARDS AIR FORCE
BASE, CALIF., A/SLMR NO. 255(1973).
/25/ IT IS CLEAR FROM G.C. EXH. NO. 19 THAT RESPONDENT DLA WAS FULLY
AWARE THAT SECTION 2422.2(H)(3) OF THE INTERIM RULES AND REGULATIONS DID
NOT REQUIRE SUBMISSION BY THE UNION OF A ROSTER OF ITS OFFICERS AND
REPRESENTATIVES, A COPY OF ITS CONSTITUTION AND BYLAWS AND A STATEMENT
OF ITS OBJECTIVES, AS PART OF ITS CONSOLIDATION PETITION. NEVERTHELESS,
RESPONDENT DLA REFUSED TO BARGAIN WITH THE UNION FOR ALLEGEDLY FAILING
TO DO SO.
/26/ CRAUTZ PLATING CORPORATION, 172 NLRB 1.
/27/ ARMY AND AIR FORCE EXCHANGE SERVICE, SOUTH TEXAS AREA EXCHANGE,
LACKLAND AIR FORCE BASE, TEXAS, A/SLMR NO. 542, 5 A/SLMR 518; A/SLMR
NO. 669, 6 A/SLMR 316(1976).
/28/ THE BATON ROUGE WATER WORKS COMPANY, 170 NLRB 1183.
/29/ SEE SECTION 7135(B) OF THE STATUTE. IT IS ALSO NOTED THAT NO
CASES ARE CITED AND NO RATIONALE IS OFFERED BY THE GENERAL COUNSEL IN
SUPPORT OF THIS REQUEST.
/30/ UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY,
NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106, 1
A/SLMR 490.
/31/ THE ADJUTANT GENERAL - GEORGIA, GEORGIA NATIONAL GUARD,
DEPARTMENT OF DEFENSE, ATLANTA, GEORGIA, CASE NO. 40-9032 (CA), 2 FLRA
NO. 92 (FEB. 29, 1980).
/32/ THE APPROPRIATE UNIT IS SO EXTENSIVE IN SCOPE THAT I HAVE NOT
ATTEMPTED TO FULLY DESCRIBED IT IN THE NOTICE TO EMPLOYEES IN CASE NO.
3-CA-294. I RECOMMEND THAT THE REGIONAL DIRECTOR BE DIRECTED TO
INTEGRATE THE ORIGINAL CERTIFICATION AND AMENDMENTS THERETO SO THAT A
CORRECTED UNIT DESCRIPTION FOR EACH UNIT CAN BE ATTACHED TO THE NOTICE
TO EMPLOYEES. IN THE ALTERNATIVE, THE AUTHORITY MAY WISH TO REQUIRE A
SEPARATE NOTICE TO EMPLOYEES FOR EACH UNIT. SINCE THESE CASES AROSE IN
REGION 3 OF THE AUTHORITY, I HAVE USED THAT REGION'S ADDRESS IN THE
NOTICE, EVEN THOUGH A NATION-WIDE POSTING MIGHT WARRANT A DIFFERENT
APPROACH. ALSO TO BE NOTED IS THAT THE UNIT DESCRIPTIONS IN CASE NO.
3-CA-338 CONTAIN THE PHRASE "AS DEFINED IN THE ORDER."
/33/ SEE G.C. EXH. NO. 1(K) AND ATTACHMENTS THERETO.