[ v10 p519 ]
10:0519(91)CO
The decision of the Authority follows:
10 FLRA No. 91
NATIONAL TREASURY EMPLOYEES UNION
Respondent
and
U.S. CUSTOMS SERVICE
Charging Party
Case No. 3-CO-26
NATIONAL TREASURY EMPLOYEES UNION
Respondent
and
NUCLEAR REGULATORY COMMISSION
Charging Party
Case No. 3-CO-37
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED CONSOLIDATED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINTS,
AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS TO THE JUDGE'S DECISION. /1/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED BELOW.
THE JUDGE FOUND THAT THE RESPONDENT, NATIONAL TREASURY EMPLOYEES
UNION (NTEU), FAILED TO MEET ITS OBLIGATION UNDER SECTION 7114(A)(1) OF
THE STATUTE /2/ TO REPRESENT THE INTERESTS OF ALL UNIT EMPLOYEES WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP WHEN
IT (1) POSTED COPIES OF A MEMORANDUM ISSUED BY NTEU'S PRESIDENT AT A
NUMBER OF LOCATIONS WITHIN THE U.S. CUSTOMS SERVICE ANNOUNCING TO
EMPLOYEES THE CONTINUATION OF NTEU'S POLICY OF NOT FURNISHING ATTORNEYS
TO REPRESENT NON-MEMBERS WHILE FURNISHING ATTORNEYS TO REPRESENT
MEMBERS, AND (2) IMPLEMENTED THE FOREGOING POLICY AT THE NUCLEAR
REGULATORY COMMISSION BY DENYING ATTORNEY REPRESENTATION TO NON-MEMBER
EMPLOYEES BUT PROVIDING SUCH REPRESENTATION TO MEMBERS WHO WERE
INVOLVED
IN REMOVAL ACTIONS. THE AUTHORITY ADOPTS THE ABOVE FINDINGS AND
THEREFORE CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT SUCH
NONCOMPLIANCE WITH THE REQUIREMENTS OF SECTION 7114(A)(1) CONSTITUTED A
VIOLATION OF SECTION 7116(B)(1) AND (8) OF THE STATUTE. /3/ SEE
TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL/INTERNATIONAL
ASSOCIATION OF MACHINISTS, LOCAL NO. 444, 8 FLRA NO. 47(1982). /4/
MOREOVER, IN FURTHER AGREEMENT WITH THE JUDGE, THE AUTHORITY CONCLUDES
THAT THE FOREGOING CONDUCT CONSTITUTED AN INDEPENDENT VIOLATION OF
SECTION 7116(B)(1) BECAUSE IT INTERFERED WITH THE EMPLOYEES' PROTECTED
RIGHT UNDER SECTION 7102 OF THE STATUTE /5/ TO REFRAIN FROM JOINING A
LABOR ORGANIZATION. SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1778, AFL-CIO, 10 FLRA NO. 62(1982). /6/
TO REMEDY THE UNFAIR LABOR PRACTICES FOUND, THE JUDGE RECOMMENDED "A
BROAD ORDER APPLICABLE TO ALL EXCLUSIVE UNITS REPRESENTED BY RESPONDENT
. . . , " NOTING THAT NTEU'S POLICY WAS APPLICABLE TO ALL ITS CHAPTERS
AND WAS NOT LIMITED TO THE UNITS OF EXCLUSIVE RECOGNITION INVOLVED
HEREIN. IN THIS REGARD, HE ORDERED, INTER ALIA, THAT ALL NTEU OFFICE
OFFICIALS, LEGAL STAFF, AND CHAPTER PRESIDENTS BE NOTIFIED OF THE CHANGE
IN NTEU'S POLICY, AND THAT NTEU POST REMEDIAL NOTICES AT ITS NATIONAL
HEADQUARTERS, AT EVERY LOCAL BUSINESS OFFICE OF ITS CHAPTERS, AT EVERY
AGENCY OR ACTIVITY WHERE NTEU OR ANY OF ITS CHAPTERS HOLDS EXCLUSIVE
RECOGNITION, AND AT ALL PLACES WHERE NOTICES TO MEMBERS AND EMPLOYEES
ARE CUSTOMARILY POSTED. THE AUTHORITY CONCLUDES, HOWEVER, CONSISTENT
WITH PREVIOUS ORDERS ISSUED IN LIKE CIRCUMSTANCES (SEE N. 4, SUPRA),
THAT AN ORDER REQUIRING NTEU TO CEASE AND DESIST FROM SUCH UNFAIR LABOR
PRACTICES AND TO POST NOTICES ONLY WHERE THE UNLAWFUL CONDUCT WAS SHOWN
TO HAVE OCCURRED WILL BEST EFFECTUATE THE PURPOSES AND POLICIES OF THE
STATUTE. THUS, WHILE THE RECORD INDICATES THAT NTEU'S CONDUCT IN THIS
CASE WAS INTENDED TO TEST WHETHER ITS NATIONWIDE REPRESENTATION POLICY
IS INCONSISTENT WITH THE REQUIREMENTS OF THE STATUTE (AS IT HAD
PREVIOUSLY BEEN FOUND TO CONFLICT WITH THE PROVISIONS OF EXECUTIVE ORDER
11491, AS AMENDED), THERE IS NO BASIS FOR CONCLUDING THAT NTEU WILL
CONTINUE TO APPLY SUCH POLICY HERE FOUND TO CONFLICT WITH SECTION
7114(A)(1) OF THE STATUTE AT ANY OTHER LOCATIONS AFTER THE ISSUANCE OF
THIS DECISION. THEREFORE, THE JUDGE'S RECOMMENDED ORDER SHALL BE
MODIFIED ACCORDINGLY.
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 THE NATIONAL TREASURY EMPLOYEES UNION SHALL:
1. CEASE AND DESIST FROM:
(A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
WHETHER SUCH EMPLOYEES ARE MEMBERS OF THE NATIONAL TREASURY EMPLOYEES
UNION.
(B) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES IN THE
EXERCISE OF THEIR RIGHT TO REFRAIN FROM JOINING, FREELY AND WITHOUT FEAR
OR PENALTY OR REPRISAL, THE NATIONAL TREASURY EMPLOYEES UNION OR ANY
OTHER LABOR ORGANIZATION.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING UNIT EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) REPRESENT ALL EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO MEMBERSHIP IN THE NATIONAL TREASURY
EMPLOYEES UNION.
(B) POST AT ITS BUSINESS OFFICES AND ITS NORMAL MEETING PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND EMPLOYEES OF THE U.S.
CUSTOMS SERVICE AND THE U.S. NUCLEAR REGULATORY COMMISSION ARE
CUSTOMARILY POSTED, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE SIGNED BY THE PRESIDENT OF THE NATIONAL
TREASURY EMPLOYEES UNION OR HIS DESIGNEE AND THEY SHALL BE POSTED AND
MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND TO OTHER EMPLOYEES ARE
CUSTOMARILY POSTED. THE PRESIDENT OF NATIONAL TREASURY EMPLOYEES UNION
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) SUBMIT APPROPRIATE SIGNED COPIES OF SUCH NOTICES TO THE
COMMISSIONER OF THE U.S. CUSTOMS SERVICE, WASHINGTON, D.C. AND THE
CHAIRMAN OF THE U.S. NUCLEAR REGULATORY COMMISSION, WASHINGTON, D.C.,
FOR POSTING IN CONSPICUOUS PLACES WHERE THE RESPECTIVE UNIT EMPLOYEES
ARE LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION III, 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.
ISSUED, WASHINGTON, D.C., NOVEMBER 23, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
WHETHER SUCH EMPLOYEES ARE MEMBERS OF THE NATIONAL TREASURY EMPLOYEES
UNION.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES IN THE
EXERCISE OF THEIR RIGHT TO REFRAIN FROM JOINING, FREELY AND WITHOUT FEAR
OR PENALTY OR REPRISAL, THE NATIONAL TREASURY EMPLOYEES UNION OR ANY
OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE UNIT EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL REPRESENT ALL EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION
WITHOUT DISCRIMINATION AND WITHOUT REGARD TO MEMBERSHIP IN THE NATIONAL
TREASURY EMPLOYEES UNION.
(LABOR ORGANIZATION)
DATED: BY: (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
P.O. BOX 33758, WASHINGTON, D.C. 20033-0758 AND WHOSE TELEPHONE NUMBER
IS: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SUSAN SHINKMAN, ESQUIRE
FOR THE GENERAL COUNSEL
WILLIAM F. WHITE, ESQUIRE
MARTHA D. FINLATOR, ESQUIRE
FOR THE RESPONDENT
JUDITH A. NEWTON, ESQUIRE
DAVID S. ORR, ESQUIRE
FOR THE U.S. CUSTOMS SERVICE
DENNIS C. DAMBLY, ESQUIRE
ELLEN M. BROWN, ESQUIRE
ON BRIEF: JAY W. MAYNARD, ESQUIRE
FOR THE NUCLEAR REGULATORY COMMISSION
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
CASE NO.: 3-CO-26
CASE NO.: 3-CO-37
DECISION AND ORDER
STATEMENT OF THE CASE
QUITE SIMPLY, THE ISSUE IN THIS CONSOLIDATED CASE IS WHETHER THE
MEMORANDUM OF VINCENT L. CONNERY, PRESIDENT OF THE NATIONAL TREASURY
EMPLOYEES UNION (HEREINAFTER, ALSO REFERRED TO AS "NTEU"), DATED
SEPTEMBER 7, 1979 (G.C. EXH. 2), ADDRESSED TO "NTEU CHAPTER PRESIDENTS",
AND ADMITTEDLY DISTRIBUTED TO, AND RECEIVED BY, EACH CHAPTER PRESIDENT,
WHICH STATED UNEQUIVOCALLY, INTER ALIA, THAT, "NTEU WILL NOT SUPPLY
ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS" (G.C.
EXH. 2) VIOLATED SECS. 14(A)(1), 16(B)(1) AND (8) OF THE STATUTE, /7/
THE AUTHORITY PREVIOUSLY HAVING FOUND, IN NATIONAL TREASURY EMPLOYEES
UNION (NTEU), CHAPTER 202, ET AL., 1 FLRA NO. 104, FEDERAL LABOR
RELATIONS AUTHORITY, REPORT OF CASE DECISIONS NO. 15, SEPTEMBER 25,
1979, THAT NTEU'S PRIOR STATED POLICY THAT IT WOULD NOT PROVIDE
ATTORNEYS TO NON-MEMBERS, WAS "INCONSISTENT WITH THE NTEU'S OBLIGATION
TO REPRESENT 'THE INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP' AS
REQUIRED BY SECTION 10(E) OF THE ORDER (EXECUTIVE ORDER 11491, AS
AMENDED) AND IMPROPERLY INTERFERES WITH, RESTRAINS, AND COERCES
NON-UNION EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO REFRAIN FROM
JOINING THE NTEU. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE NTEU'S
REPRESENTATION POLICY AS EXPRESSED IN THE THREE PUBLICATIONS VIOLATES
SECTION 19(B)(1) OF THE ORDER (EXECUTIVE ORDER 11491, AS AMENDED) . . .
. " (1 FLRA NO. 104 AT P. 5).
THE AUTHORITY'S DECISION IN CASE NO. 1 FLRA NO. 104, SUPRA, WAS
ISSUED ON AUGUST 30, 1979. THERE IS NO QUESTION THAT CASE NO. 1 FLRA
NO. 104 WAS DECIDED SOLELY ON THE BASIS OF EXECUTIVE ORDER 11491, AS
AMENDED; INDEED, THE DECISION IN N. 3 SPECIFICALLY STATED THAT, "IN
CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT OF 1978
(92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS OF
E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OR RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER." NOR, OF COURSE, IS
THERE ANY POSSIBLE QUESTION THAT PRESIDENT CONNERY'S MEMORANDUM OF
SEPTEMBER 7, 1979, WAS ISSUED WITH FULL AWARENESS OF THE AUTHORITY'S
DECISION IN CASE NO. 1 FLRA NO. 104. TO THE CONTRARY THE SUBJECT OF THE
MEMORANDUM WAS "NTEU, CHAPTERS 202, 128 AND 165, 1 FLRA NO. 104(1979)"
AND PRESIDENT CONNERY STATED, IN PART, AS FOLLOWS:
"THE FEDERAL LABOR RELATIONS AUTHORITY HELD IN THE ABOVE-REFERENCED
CASE THAT NTEU MUST
FURNISH LAWYERS TO REPRESENT NON-MEMBERS IF THE SAME SERVICE IS
FURNISHED TO MEMBERS.
* * * *
"THE AUTHORITY BASED ITS DECISION ON AN INTERPRETATION OF EXECUTIVE
ORDER 11491, AS
AMENDED. ALTHOUGH I FIRMLY BELIEVE THE DECISION IS WRONG, WE WILL
NOT APPEAL IT BECAUSE IT IS
BASED ON SOMETHING NO LONGER IN EXISTENCE.
"HOWEVER, THE FACT THAT WE ARE NOT APPEALING THE DECISION DOES NOT
MEAN NTEU POLICY HAS
CHANGED. NTEU WILL NOT SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN
THE REPRESENTATIONAL
EFFORTS. IF A NEW CHARGE IS FILED AGAINST NTEU BASED ON THE NEW
LANGUAGE IN THE CIVIL SERVICE
REFORM ACT, WE WILL CONTINUE TO RESIST IT." (G.C. EXH. 2).
THIS IS A PROCEEDING UNDER THE STATUTE AND THE FINAL RULES AND
REGULATIONS ISSUED THEREUNDER, 5 C.F.R. CHAPTER XIV, FED. REG., VOL. 45,
NO. 12, JANUARY 17, 1980. THE CHARGE IN 3-CO-26 WAS FILED OCTOBER 11,
1979, BY THE UNITED STATES CUSTOMS SERVICE (G.C. EXH. 1(A)) AND A
COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 16, 1980, FOR A HEARING
ON AUGUST 14, 1980. (G.C. EXH. 1(E)). THE CHARGE IN 3-CO-37 WAS FILED
FEBRUARY 21, 1980 (G.C. EXH. 1(C)) BY THE U.S. NUCLEAR REGULATORY
COMMISSION AND A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 16, 1980
(G.C. EXH. 1(G)), ALSO, FOR A HEARING ON AUGUST 14, 1980. ON JUNE 16,
1980, THE REGIONAL DIRECTOR, FURTHER, ISSUED AN ORDER CONSOLIDATING
CASES (G.C. EXH. 1(H)). RESPONDENT'S ANSWERS WERE FILED ON JULY 14,
1980 (3-CO-26-- G.C. EXH. 1(K); 3-CO-37-- G.C. EXH. 1(L)). /8/
PURSUANT TO THE NOTICES OF HEARING, A HEARING WAS DULY HELD BEFORE THE
UNDERSIGNED ON AUGUST 14, 1980, IN WASHINGTON, D.C. ALL PARTIES WERE
REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING ON
THE ISSUES INVOLVED, AND TO PRESENT ORAL ARGUMENT. AT THE CLOSE OF THE
HEARING SEPTEMBER 15, 1980, WAS FIXED AS THE DATE FOR MAILING
POST-HEARING BRIEFS. ON SEPTEMBER 9, 1980, RESPONDENT FILED A TIMELY
MOTION FOR EXTENSION OF TIME TO FILE BRIEFS, TO WHICH COUNSEL FOR THE
GENERAL COUNSEL AND THE CHARGING PARTIES DID NOT OBJECT, AND, FOR GOOD
CAUSE SHOW, THE TIME FOR MAILING BRIEFS WAS EXTENDED TO SEPTEMBER 22,
1980. /9/ EACH PARTY HAS TIMELY SUBMITTED AN EXCELLENT BRIEF, RECEIVED
ON OR BEFORE SEPTEMBER 24, 1980, WHICH HAVE BEEN CAREFULLY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS AND
CONCLUSIONS:
I. PRELIMINARY MATTERS
RESPONDENT HAS ADVANCED TWO GROUNDS WHICH, IT ASSERTS, REQUIRE
DISMISSAL OF THE COMPLAINTS, FIRST, THAT THE COMPLAINT IN CASE NO.
3-CO-26 SHOULD BE DISMISSED FOR FAILURE TO COMPLY WITH THE AUTHORITY'S
REGULATIONS, AND SECOND, THAT THE AGENCIES LACKED STANDING TO FILE THE
CHARGES. FOR REASONS SET FORTH HEREINAFTER, RESPONDENT'S ASSERTIONS ARE
WHOLLY LACKING IN MERIT AND RESPONDENT'S REQUEST THAT THE COMPLAINTS BE
DISMISSED IS DENIED.
A) COMPLIANCE WITH REGULATIONS
THE PARTICULAR REGULATION RELIED UPON IS SEC. 2423.12(B)(7). THE
COMPLAINT IN EACH CASE DID, FULLY IN ACCORDANCE WITH SEC. 2423.12(B)(7),
SET FORTH A CLEAR AND CONCISE DESCRIPTION OF THE ACTS WHICH ARE CLAIMED
TO CONSTITUTE UNFAIR LABOR PRACTICES. THUS, PARAGRAPH 6 OF THE
COMPLAINT IN EACH CASE, ALLEGED THAT RESPONDENT HAS IMPLEMENTED A POLICY
WHEREIN THE DECISION TO PROVIDE ATTORNEYS TO REPRESENT EMPLOYEES
INCLUDED IN THE UNIT IS BASED SOLELY UPON WHETHER SUCH EMPLOYEES ARE
MEMBERS. THEN, IN PARAGRAPH 7 OF EACH COMPLAINT, IT WAS ALLEGED,
"ON OR ABOUT SEPTEMBER 7, 1979, RESPONDENT, THROUGH ITS AGENT VINCENT
L. CONNERY, ISSUED A
MEMORANDUM TO SEVERAL OF RESPONDENT'S CHAPTERS STATING THAT
RESPONDENT WILL NOT SUPPLY
ATTORNEYS TO NON-MEMBERS TO HELP IN REPRESENTATIONAL MATTERS."
RESPONDENT, BY ITS ANSWER IN EACH CASE, ADMITTED THAT THE MEMORANDUM
OF SEPTEMBER 7, 1979, AS ALLEGED, WAS IN FACT ISSUED AND STATED THAT IT
WAS ISSUED "TO SEVERAL NTEU CHAPTERS." AS NOTED IN THE ORDER DENYING
MOTION FOR MORE DEFINITE STATEMENT,
" . . . FROM RESPONDENT'S ANSWERS IT IS OBVIOUS THAT RESPONDENT WAS,
AND IS, FULLY AWARE OF
THE CHAPTERS TO WHICH IT ISSUED ITS MEMORANDUM OF SEPTEMBER 7, 1979.
NOT ONLY HAS RESPONDENT
UTTERLY FAILED TO SHOW THAT THE INFORMATION IS NECESSARY FOR THE
PREPARATION OF ITS DEFENSE,
BUT IT IS APPARENT THAT RESPONDENT'S MOTION IS NO MORE THAN A THINLY
VEILED TACTIC FOR
DELAY." (G.C. EXH. 1(V)).
THE SUFFICIENCY OF A COMPLAINT MUST BE DETERMINED ON THE BASIS OF THE
COMPLAINT WHEN ISSUED. AS FURTHER NOTED IN THE ORDER DENYING MOTION FOR
MORE DEFINITE STATEMENT, IT WAS DETERMINED THAT,
"FULLY IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 2423.12(B) OF
THE RULES AND
REGULATIONS, THE COMPLAINTS IN EACH CASE APPRISE RESPONDENT OF THE
NATURE OF THE ALLEGATIONS
WITH SUFFICIENT PARTICULARLY TO PREPARE ITS DEFENSE . . . " (G.C.
EXH. 1(V)).
RESPONDENT, IN EFFECT, CONCEDES THAT THE COMPLAINTS MET ALL
REQUIREMENTS OF SEC. 2423.12(B)(7) WHEN ISSUED; BUT NOW ASSERTS THAT "
. . . ONCE THE REGIONAL DIRECTOR BECOMES AWARE OF THE NAMES, PLACES, AND
DATES OF THE COMMISSION OF THE ALLEGED UNFAIR LABOR PRACTICES, HE/SHE IS
OBLIGATED TO COMMUNICATE SUCH ALLEGATIONS TO THE RESPONDENT. FAILURE TO
MAKE SUCH A SEASONABLE AMENDMENT WOULD ALLOW THE REGIONAL DIRECTOR TO
ELIMINATE THE REQUIREMENT OF SPECIFICITY ALTOGETHER IN CONTRAVENTION OF
THE AFORECITED REGULATION." (RESPONDENT'S BRIEF, P. 7). SUCH ASSERTION
IS WHOLLY CONTRIVED AND IS WHOLLY LACKING IN MERIT. A COMPLAINT WHICH
APPRISES A RESPONDENT OF THE NATURE OF THE ALLEGATIONS WITH SUFFICIENT
PARTICULARLY TO PREPARE ITS DEFENSE DOES NOT BECOME DEFECTIVE BECAUSE
INVESTIGATION DEVELOPS PARTICULAR EVIDENCE OF THE VIOLATION ALLEGED.
NEITHER THE STATUTE NOR THE REGULATIONS PROVIDE FOR PRE-TRIAL
DISCOVERY. INDEED, THE STATUTE, AS CONTRASTED WITH THE CONCLUDING
SENTENCE OF SECTION 10(B) OF THE NATIONAL LABOR RELATIONS ACT, PROVIDES,
IN PART, AS FOLLOWS:
" . . . ANY SUCH HEARING SHALL, TO THE EXTENT PRACTICABLE, BE
CONDUCTED IN ACCORDANCE WITH
THE PROVISIONS OF SUBCHAPTER II OF CHAPTER 5 OF THIS TITLE
(ADMINISTRATIVE PROCEDURES ACT),
EXCEPT THAT THE PARTIES SHALL NOT BE BOUND BY RULES OF EVIDENCE,
WHETHER STATUTORY, COMMON
LAW, OR ADOPTED BY A COURT . . . . " (5 U.S.C. 7118(A)(6)). SEE,
ALSO, SEC. 2423.17 OF THE
REGULATIONS.
RESPONDENT'S MOTION, ALTHOUGH ENTITLED "MOTION FOR MORE DEFINITE
STATEMENT", WAS, IN REALITY, A BROAD REQUEST FOR PRE-TRIAL DISCOVERY AND
WAS DENIED, INTER ALIA, BECAUSE "RESPONDENT IN THIS INSTANCE HAS SHOWN
NO GROUNDS THAT WOULD WARRANT SUCH PRE-TRIAL DISCOVERY" (G.C. EXH.
1(V)). CF., NLRB V. VAPOR BLAST MFG. CO., 287 F.2D 492, 47 LRRM 2670
(7TH CIR. 1961), CERT. DENIED, 368 U.S. 823(1961); NLRB V. IRON
WORKERS, LOCAL 433, 600 F.2D 770, 101 LRRM 3119 (9TH CIR. 1979), CERT.
DENIED,-- U.S.-- , 103 LRRM 2668(1980). WITH FULL RECOGNITION OF THE
AUTHORITY GRANTED BY SEC. 2423.19 OF THE REGULATIONS, RESPONDENT'S
MOTION, RENEWED AT THE COMMENCEMENT OF THE HEARING, AND APPROPRIATELY
RESTRICTED TO LOCATIONS WHERE THE MEMORANDUM OF SEPTEMBER 7, 1979, HAD
BEEN POSTED BY RESPONDENT, WAS GRANTED. NEVERTHELESS, THE COMPLAINTS
HAD FROM THE OUTSET APPRISED RESPONDENT OF THE NATURE OF THE
ALLEGATIONS, INCLUDING THE ALLEGATION IS PARAGRAPH 8 OF THE COMPLAINT IN
CASE NO. 3-CO-26, THAT THE MEMORANDUM BEEN POSTED BY RESPONDENT, WITH
SUFFICIENT PARTICULARLY TO ENABLE RESPONDENT TO PREPARE ITS DEFENSE. BY
NO STRETCH OF THE IMAGINATION WAS THIS A FAILURE TO ALLEGE A VIOLATION,
COMPARE, NLRB V. MAJESTIC WEAVING COMPANY, 355 F.2D 861, 61 LRRM 2132,
2137 (2D CIR. 1966), WHICH MIGHT BE INDICATIVE OF A DENIAL OF DUE
PROCESS. WITH KNOWLEDGE THAT THE COMPLAINT ASSERTED THAT RESPONDENT HAD
POSTED THE MEMORANDUM, RESPONDENT COULD READILY ASCERTAIN THROUGH ITS
CHAPTERS WHETHER THEY HAD, OR HAD NOT, POSTED THE MEMORANDUM.
B) STANDING OF AGENCIES TO FILE CHARGES
THE STATUTE DEFINES "PERSON" AS FOLLOWS"
"(A) FOR THE PURPOSE OF THIS CHAPTER--
"(1) 'PERSON' MEANS AN INDIVIDUAL, LABOR ORGANIZATION, OR AGENCY;" (5
U.S.C. 7103(A)(1)). (INCORPORATED BY REFERENCE AS PART OF SEC.
2421.2(A) OF THE REGULATIONS).
THE REGULATIONS DEFINE "ACTIVITY" AS FOLLOWS:
"'ACTIVITY' MEANS ANY FACILITY, ORGANIZATIONAL ENTITY, OR
GEOGRAPHICAL SUBDIVISION OR
COMBINATION THEREOF, OF ANY AGENCY." (5 C.F.R. 2421.4).
THE REGULATIONS DESCRIBE WHO MAY FILE CHARGES AS FOLLOWS:
"WHO MAY FILE CHARGES.
"AN ACTIVITY, AGENCY OR LABOR ORGANIZATION MAY BE CHARGED BY ANY
PERSON WITH HAVING ENGAGED
IN OR ENGAGING IN ANY UNFAIR LABOR PRACTICE PROHIBITED UNDER 5 U.S.C.
7116." (5
C.F.R. 2423.3).
THERE IS NO QUESTION THAT, UNDER THE STATUTE AND THE REGULATIONS DULY
ISSUED THEREUNDER, THE UNITED STATES CUSTOMS SERVICE AND THE U.S.
NUCLEAR REGULATORY COMMISSION WERE "PERSONS" /10/ FULLY AUTHORIZED TO
FILE CHARGES OF UNFAIR LABOR PRACTICES AGAINST RESPONDENT, I.E., A LABOR
ORGANIZATION MAY BE CHARGED BY ANY PERSON WITH HAVING ENGAGED IN OR
ENGAGING IN ANY UNFAIR LABOR PRACTICE PROHIBITED UNDER SEC. 16. INDEED,
RESPONDENT DOES NOT ASSERT TO THE CONTRARY; BUT, RATHER, CONTENDS THAT
"THE CHARGING PARTIES (DO NOT) HAVE A LEGITIMATE INTEREST IN PROTECTING
THE RIGHTS ASSERTED IN THEIR CHARGES." (RES. BRIEF, P. 9). SUCH
CONTENTION IS WHOLLY WITHOUT MERIT.
CONGRESS, IN DEVISING THE STATUTE, RADICALLY ALTERED PROSECUTION OF
UNFAIR LABOR PRACTICE COMPLAINTS BY THE CHARGING PARTY AS THE EXECUTIVE
ORDER HAD PROVIDED, AND UNDER THE STATUTE, AS IS TRUE UNDER THE NATIONAL
LABOR RELATIONS ACT, AFTER WHICH CONGRESS INTENTIONALLY AND CONSCIOUSLY
PATTERNED THE STRUCTURE OF THE STATUTE, THE PURPOSE OF THE CHARGE NOW IS
TO SET IN MOTION THE MACHINERY OF AN INQUIRY BY THE GENERAL COUNSEL.
CONGRESS UNDER THE STATUTE HAS IMPOSED UPON THE GENERAL COUNSEL OF THE
AUTHORITY RESPONSIBILITY FOR MAKING THAT INVESTIGATION AND OF FRAMING
THE ISSUES, NOT UPON THE CHARGING PARTY. ALTHOUGH A CHARGE IS ESSENTIAL
TO THE INVOCATION OF JURISDICTION OF THE AUTHORITY, ONCE THE
INVESTIGATORY MACHINERY OF THE AUTHORITY IS SET IN MOTION, BY THE
CHARGE, IT IS THE GENERAL COUNSEL'S EXCLUSIVE RESPONSIBILITY TO
INVESTIGATE AND, IF HE FINDS CAUSE TO BELIEVE THAT AN UNFAIR LABOR
PRACTICE HAS OCCURRED, TO ISSUE A COMPLAINT WHICH HE ADJUDICATES IN THE
PUBLIC INTEREST. SEC. 18(A)(1) PROVIDES, IN PART, "IF ANY AGENCY OR
LABOR ORGANIZATION IS CHARGED BY ANY PERSON WITH HAVING ENGAGED IN OR
ENGAGING IN AN UNFAIR LABOR PRACTICE, THE GENERAL COUNSEL SHALL
INVESTIGATE THE CHARGE AND MAY ISSUE . . . A COMPLAINT". ACCORDINGLY,
UNDER THE STATUTE, THE UNITED STATES CUSTOMS SERVICE AND THE U.S.
NUCLEAR REGULATORY COMMISSION HAD STANDING TO FILE THE CHARGES AND
WHETHER THEY HAVE RESPONSIBILITY OR LIABILITY IN REGARD TO THE ALLEGED
UNFAIR LABOR PRACTICE IS IMMATERIAL. THE GENERAL COUNSEL, IN THE PUBLIC
INTEREST, PROSECUTES THE COMPLAINTS TO PROTECT THE RIGHTS ASSURED BY THE
STATUTE. CF. NATIONAL LABOR RELATIONS BOARD V. FANT MILLING CO., 360
U.S. 301, 307-308(1959); DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL
SURVEY, CONSERVATION DIVISION, GULF OF MEXICO REGION, METAIRIE,
LOUISIANA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3457, CASE NO. 6-CA-209 (ALJ 1980).
FINDINGS /11/
THE FACTS, AS MATERIAL, ARE NEITHER COMPLEX NOR SERIOUSLY DISPUTED
AND MAY BE BRIEFLY STATED:
1. PRESIDENT CONNERY'S MEMORANDUM DATED SEPTEMBER 7, 1979 (G.C.
EXH. 2), WAS TRANSMITTED TO EACH OF NTEU CHAPTER PRESIDENT; HAS NOT
BEEN RESCINDED; AND, AS MR. JOHN F. BUFE, DEPUTY GENERAL COUNSEL OF
NTEU, TESTIFIED, "TO THE EXTENT THAT OUR POLICY CAN BE DESCRIBED IN ONE
SENTENCE, THIS IS GENERALLY ACCURATE" (TR. 109), ALTHOUGH HE FURTHER
TESTIFIED THAT IN ALL INSTANCES IN DECIDING WHETHER TO PROVIDE ATTORNEY
ASSISTANCE SEVERAL FACTORS ARE CONSIDERED: A) MERIT OF THE CASE; B)
THE DEGREE OF IMPACT ON EMPLOYEES; C) ABILITY OF LOCAL CHAPTER
REPRESENTATIVES; D) AVAILABILITY OF AN ATTORNEY; AND E) MEMBERSHIP
(TR. 104-107).
2. MR. BUFE TESTIFIED THAT THE NATIONAL OFFICE OF NTEU "IS BASICALLY
A CREATION OF THE NATIONAL PRESIDENT OF NTEU THROUGH OUR CONSTITUTION
AND BYLAWS. HE IS EMPOWERED TO EMPLOY A STAFF TO PROVIDE ASSISTANCE TO
OUR LOCAL CHAPTER PEOPLE." (TR.96); THAT CURRENTLY NTEU REPRESENTS
APPROXIMATELY 120,000 BARGAINING UNIT EMPLOYEES AND, INCLUDING RETIREES,
HAS APPROXIMATELY 65,000 MEMBERS (TR. 98).
3. NTEU HAS, CURRENTLY, 40 LAWYERS; AND NATIONAL OFFICE ATTORNEYS
ARE ASSIGNED TO SERVICE PARTICULAR CHAPTERS, GENERALLY "SOME SIX OR
EIGHT CHAPTERS". (TR. 100).
4. MS. SHARYN DANCH WAS INITIALLY EMPLOYED BY NTEU IN MID 1978 AS AN
ASSISTANT COUNSEL AND IN MARCH, 1980, BECAME AN ASSOCIATE GENERAL
COUNSEL. AS AN ASSISTANT COUNSEL, SHE WAS ASSIGNED CHAPTERS OF THE
INTERNAL REVENUE SERVICE IN THE MIDWEST REGION, TWO SMALL CHAPTERS IN
NORTH AND SOUTH DAKOTA AND THE NUCLEAR REGULATORY COMMISSION IN
WASHINGTON, D.C. AS AN ASSOCIATE GENERAL COUNSEL, SHE SUPERVISES
ASSISTANT COUNSELS AND CONTINUES TO REPRESENT THE NUCLEAR REGULATORY
COMMISSION. SHE TESTIFIED THAT IN DETERMINING WHETHER TO SUPPLY DIRECT
REPRESENTATION SHE APPLIES THE FACTORS THAT MR. BUFE DESCRIBED,
INCLUDING "THE MEMBERSHIP OF THE EMPLOYEE INVOLVED" (TR. 124). ALTHOUGH
SHE STATED SHE DID NOT CHECK ON UNION MEMBERSHIP, SHE ADMITTED THAT THE
REASON SHE DID NOT CHECK UNION MEMBERSHIP WAS BECAUSE "I ASSUME THAT
CASES REFERRED TO ME ARE CASES INVOLVING A MEMBER OF OUR UNION." (TR.
126, SEE, ALSO, TR. 137). SHE FURTHER TESTIFIED THAT IF SHE LEARNED
THAT A CASE INVOLVED A NON-MEMBER "I DO TAKE THAT INTO CONSIDERATION."
(TR. 126).
5. TWO NON-MEMBERS OF NTEU, MR. GEORGE GEORGIEV AND MR. FELIX
LITTON, WERE REPRESENTED IN THE PROCESSING OF THEIR GRIEVANCES BY A
PRIVATE ATTORNEY. THE GRIEVANCES WERE NOT RESOLVED AND MR. JAMES D.
THOMAS, PRESIDENT OF CHAPTER 208, IN MR. CONNERY'S NAME, ON JUNE 8,
1979, SOUGHT TO INVOKE ARBITRATION (RES. EXH. 2), AS ARBITRATION MUST BE
INVOKED BY THE NATIONAL OFFICE. MS. DANCH TESTIFIED THAT SHE TALKED TO
GRIEVANTS' PRIVATE ATTORNEY AND TOLD HIM THAT SHE WOULD REPRESENT THEM,
GEORGIEV AND LITTON, IN THE HEARING AND THAT HE, IF HE LIKED, COULD SIT
AS CO-COUNSEL BUT SHE WOULD RUN THE HEARING. THE NUCLEAR REGULATORY
COMMISSION DECLINED TO PROCEED TO ARBITRATION AND ON, OR ABOUT, JULY 2,
1979, AN UNFAIR LABOR PRACTICE CHARGE WAS FILED ALLEGING A VIOLATION OF
THE STATUTE AS THE RESULT OF THE FAILURE AND REFUSAL TO ARBITRATE THE
GRIEVANCES (RES. EXH. 3); HOWEVER THE CHARGE WAS DISMISSED (TR. 128).
6. PRESIDENT CONNERY'S MEMORANDUM OF SEPTEMBER 7 (G.C. EXH. 2) WAS
POSTED ON UNION BULLETIN BOARDS IN CUSTOMS REGION VII, LOS ANGELES,
CALIFORNIA, AND IN CUSTOMS REGION IX, INTERNATIONAL FALLS, MINNESOTA.
ON OCTOBER 9, 1979, MR. JIM PHILLIPS, NTEU CHAPTER PRESIDENT IN THE LOS
ANGELES, CALIFORNIA, REGIONAL OFFICE, REQUESTED THAT THE MEMORANDUM BE
POSTED; POSTING WAS APPROVED ON OCTOBER 9, 1979, AND WAS OBSERVED ON
THE BULLETIN BOARDS AS LATE AS JULY 29, 1980. IN LATE SEPTEMBER OR
EARLY OCTOBER, 1979, NTEU CHAPTER PRESIDENT TOM MURRAY, IN INTERNATIONAL
FALLS, MINNESOTA, REQUESTED THAT THE MEMORANDUM BE APPROVED FOR POSTING;
POSTING WAS APPROVED; THE MEMORANDUM WAS POSTED ON THE NTEU BULLETIN
BOARD AT THE INTERNATIONAL FALLS BRIDGE OFFICE; AND WAS SEEN ON THE
BULLETIN BOARD AS LATE AS JULY 31, 1980.
7. MR. NATE BENSON, CHIEF OF NUCLEAR REGULATORY COMMISSION'S
LABOR-MANAGEMENT AND EMPLOYEE RELATIONS BRANCH, TESTIFIED THAT REMOVAL
ACTIONS HAD BEEN PROPOSED FOR FOUR BARGAINING UNIT EMPLOYEES SINCE MARCH
1979 (SEE, ALSO, G.C. EXH. 3). TWO WERE MEMBERS AND WERE REPRESENTED BY
NTEU ATTORNEYS; ONE, MR. WARREN WASHINGTON, WAS NOT A UNION MEMBER AND
WAS NOT REPRESENTED BY NTEU ATTORNEYS; AND THE FOURTH, CYNTHIA Y.
TAYLOR, RECEIVED NO UNION ASSISTANCE, BUT MR. THOMAS, PRESIDENT OF
CHAPTER 208, PROFESSED IGNORANCE AS TO HER MEMBERSHIP STATUS (TR.
158-159). MR. RONALD CLARY WAS REPRESENTED AT HIS ORAL REPLY BY MS.
DANCH AND AT THE MERIT SYSTEMS PROTECTION BOARD, BY TWO NTEU ATTORNEYS,
MS. DANCH AND AT THE MERIT SYSTEMS PROTECTION BOARD, BY TWO NTEU
ATTORNEYS, MS. DANCH AND MS. SUSAN SILBER. MR. RIDEN WAS REPRESENTED AT
HIS ORAL REPLY AT GLEN ELLYN, ILLINOIS, BY NTEU ATTORNEY GEORGE LACY,
WHO HAD FLOWN TO THE CHICAGO AREA FOR THAT PURPOSE; /12/ AND MR. LACY
ALSO REPRESENTED MR. RIDEN AT THE MERIT SYSTEMS PROTECTION PROTECTION
BOARD. BY CONTRAST, MR. WASHINGTON, A NON-MEMBER WAS REPRESENTED BY A
STEWARD.
CONCLUSIONS
I HAVE NO DOUBT WHATEVER THAT RESPONDENT, OR ANY UNION, MAY PROPERLY
ESTABLISH CRITERIA FOR PROVIDING THE ASSISTANCE OF ATTORNEYS TO MEMBERS
OF BARGAINING UNITS SUCH AS: NATURE OF THE CASE; AVAILABILITY OF AN
ATTORNEY; IMPORTANCE OF ISSUE INVOLVED, /13/ PROVIDED SUCH CRITERIA ARE
APPLIED UNIFORMLY TO ALL MEMBERS OF THE BARGAINING UNIT. BUT ANY
CRITERIA WHEREBY REPRESENTATION OF THE INTERESTS OF ALL EMPLOYEES IN THE
UNIT IS DISCRIMINATORY OR IS BASED IN ANY MANNER ON LABOR ORGANIZATION
MEMBERSHIP IS PROSCRIBED BY SEC. 14(A)(1) OF THE STATUTE.
AT THE OUTSET, IT MUST BE RECOGNIZED THAT SEC. 14(A)(1) OF THE
STATUTE, UNLIKE SEC. 9(A) OF THE NATIONAL LABOR RELATIONS ACT, CONTAINS
A SPECIFIC NON-DISCRIMINATION PROVISION. THUS, SEC. 14(A)(1) PROVIDES
AS FOLLOWS:
"(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
THE UNIT. AN EXCLUSIVE
REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP." (5 U.S.C. 7114(A)(1)).
(THE FIRST SENTENCE OF SEC. 9(A) OF THE NLRA IS SUBSTANTIALLY SIMILAR
TO THE FIRST SENTENCE
OF SEC. 14(A)(1) OF THE STATUTE AND PROVIDES AS FOLLOWS:
"SEC. 9(A) REPRESENTATIVES DESIGNATED OR SELECTED FOR THE PURPOSE OF
COLLECTIVE BARGAINING
BY THE MAJORITY OF THE EMPLOYEES IN A UNIT APPROPRIATE FOR SUCH
PURPOSES, SHALL BE THE
EXCLUSIVE REPRESENTATIVE OF ALL THE EMPLOYEES IN SUCH UNIT FOR THE
PURPOSES OF COLLECTIVE
BARGAINING IN RESPECT TO RATES OF PAY, WAGES, HOURS OF EMPLOYMENT, OR
OTHER CONDITIONS OF
EMPLOYMENT . . . ")
SEC. 8(B)(1) OF THE NLRA, ENACTED IN 1947, PROVIDES:
"(B) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
ITS AGENTS--
(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS
GUARANTEED IN SECTION
7 . . . "
HOWEVER, AS THE SUPREME COURT NOTED IN VACA V. SIPES, 386 U.S.
171(1967), THE NLRB DID NOT UNTIL MIRANDA FUEL CO., 140 NLRB 181, 51
LRRM 1584(1962), INTERPRET A BREACH OF A UNION'S DUTY OF FAIR
REPRESENTATION AS AN UNFAIR LABOR PRACTICE.
IT IS SIGNIFICANT THAT SEC. 14(A)(1) OF THE STATUTE SPECIFICALLY
PROVIDES THAT "AN EXCLUSIVE REPRESENTATIVE IS RESPONSIBLE FOR
REPRESENTING THE INTERESTS OF ALL EMPLOYEES IN THE UNIT IT REPRESENTS
WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION
MEMBERSHIP." VIOLATION OF THIS OBLIGATION CONSTITUTES AN UNFAIR LABOR
PRACTICE UNDER SEC. 16(B)(8). OF COURSE, SUCH CONDUCT MAY ALSO VIOLATE
SEC. 16(B)(1); BUT A UNION COULD BE GUILTY OF AN UNFAIR LABOR PRACTICE
IN VIOLATION OF SEC. 16(B)(8) IF IT FAILED OR REFUSED TO REPRESENT THE
INTERESTS OF ALL EMPLOYEES IN THE UNIT AND/OR WITHOUT REGARD TO UNION
MEMBERSHIP, WHETHER OR NOT ITS CONDUCT VIOLATED SEC. 16(B)(1).
RESPONDENT'S ASSERTION THAT A UNION'S STATEMENT OF POLICY, SUCH AS
PRESIDENT CONNERY'S MEMORANDUM OF SEPTEMBER 7, 1979, TO CONSTITUTE A
VIOLATION OF THE STATUTE MUST BE COMMUNICATED TO THE EMPLOYEES AFFECTED,
EITHER BY PUBLICATION, AS IN 1 FLRA NO. 104, OR BY POSTING, OR OTHERWISE
BE DISSEMINATED TO EMPLOYEES IN UNITS FOR WHICH THE UNION HOLDS
EXCLUSIVE RECOGNITION, IS, IN MY OPINION, WHOLLY WITHOUT MERIT. IT WAS
THE "POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNITS, BASED SOLELY UPON UNION MEMBERSHIP" (1 FLRA NO. 104 AT
P. 5) WHICH THE AUTHORITY, IN NATIONAL TREASURY EMPLOYEES UNION (NTEU),
CHAPTER 202, SUPRA, FOUND VIOLATED SEC. 19(B)(1) OF EXECUTIVE ORDER
11491, AS AMENDED, NOT THE MANNER OF ESTABLISHMENT OF THE POLICY, WHICH
THERE HAPPENED TO HAVE BEEN THROUGH COMMUNICATIONS TO UNIT EMPLOYEES.
HERE, THE RECORD SHOWS THAT PRESIDENT CONNERY'S MEMORANDUM OF SEPTEMBER
7, 1979, STATED, AND REAFFIRMED, RESPONDENT'S POLICY, THAT "NTEU WILL
NOT SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL
EFFORTS."; THAT HIS MEMORANDUM WAS TRANSMITTED TO EACH CHAPTER
PRESIDENT OF RESPONDENT; AND THAT RESPONDENT'S LEGAL STAFF, AS CONCEDED
BY ITS DEPUTY GENERAL COUNSEL, FOLLOWS THIS POLICY AND, ACCORDINGLY, IN
ALL INSTANCES IN DECIDING WHETHER TO PROVIDE ATTORNEY ASSISTANCE,
MEMBERSHIP, OR, MORE ACCURATELY, NON-MEMBERSHIP, IS A FACTOR CONSIDERED.
IMPLEMENTATION OF "A POLICY WHEREIN THE DECISION TO PROVIDE ATTORNEYS
TO REPRESENT EMPLOYEES . . . IS BASED SOLELY UPON WHETHER SUCH EMPLOYEES
ARE MEMBERS OF RESPONDENT, IS ALLEGED IN PARAGRAPH 6 OF THE COMPLAINT IN
EACH CASE TO BE IN VIOLATION OF SEC. 14(A)(1) OF THE STATUTE AND TO
CONSTITUTE AN UNFAIR LABOR PRACTICE IN VIOLATION OF SEC. 16(B)(1) AND
(8) OF THE STATUTE. IMPLEMENTATION OF SUCH POLICY, EVEN IF WHOLLY
RESTRICTED TO UNION OFFICIALS, WOULD, NEVERTHELESS, VIOLATE SECS.
14(A)(1) AND 16(B)(8) OF THE STATUTE. INDEED, IMPLEMENTATION OF A
POLICY OF DISPARATE TREATMENT BASED SOLELY UPON UNION MEMBERSHIP WOULD
CONSTITUTE A VIOLATION OF SECS. 14(A)(1) AND 16(B)(8) OF THE STATUTE
WHETHER OR NOT THE POLICY HAD BEEN ARTICULATED EITHER IN WRITTEN OR ORAL
FORM. NECESSARILY, WHERE THE POLICY IS STATED IN A WRITTEN MEMORANDUM
FROM THE NATIONAL PRESIDENT, IS TRANSMITTED TO ALL CHAPTER PRESIDENTS
AND, ADDITIONALLY, IS DISTRIBUTED INTERNALLY TO NATIONAL OFFICE
OFFICIALS OF RESPONDENT, INCLUDING ITS LEGAL STAFF, SUCH ACTION MAY
ESTABLISH NOT ONLY THE POLICY, BUT MAY CONSTITUTE IMPLEMENTATION OF THE
POLICY WITHOUT MORE. THAT IS, COMMUNICATION OF THE POLICY TO UNIT
EMPLOYEES IS IMMATERIAL INASMUCH AS EXISTENCE OF SUCH POLICY AND ITS
IMPLEMENTATION WOULD FULLY SUPPORT A VIOLATION.
MOREOVER, EVEN IF COMMUNICATION OF PRESIDENT CONNERY'S MEMORANDUM TO
UNIT EMPLOYEES WERE NECESSARY TO SUPPORT A VIOLATION, GENERAL COUNSEL
HAS SHOWN THAT RESPONDENT'S CHAPTER PRESIDENTS AT LOS ANGELES,
CALIFORNIA, AND AT INTERNATIONAL FALLS, MINNESOTA, DID POST THE
MEMORANDUM ON UNION BULLETIN BOARDS IN CUSTOMS REGION VII, LOS ANGELES,
AND IN CUSTOMS REGION IX, INTERNATIONAL FALLS. APPROVAL BY CUSTOMS OF
THE REQUEST OF THE RESPECTIVE CHAPTER PRESIDENTS TO POST THE MEMORANDUM
ON UNION BULLETIN BOARDS IS NOT MATERIAL. WHILE I DO NOT BELIEVE THAT
APPROVAL OF A UNION'S REQUEST TO POST A DOCUMENT CONSTITUTES AGENCY, OR
ACTIVITY, ENDORSEMENT OR APPROVAL OF THE CONTENTS OF THE DOCUMENT SOUGHT
TO BE POSTED, THE AGENCY, OR ACTIVITY, IS NOT PRECLUDED, IN ANY EVENT,
FROM FILING AN UNFAIR LABOR PRACTICE CHARGE CONCERNING THE DOCUMENT THE
UNION POSTED. CF. NATIONAL LABOR RELATIONS BOARD V. INDIANA & MICHIGAN
ELECTRIC COMPANY, 318 U.S. 9(1943); NATIONAL LABOR RELATIONS BOARD V.
CHAUFFEURS, TEAMSTERS & HELPERS, LOCAL NO. 364. INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, 274 F.2D 19 (7TH CIR. 1960). ONCE AN UNFAIR LABOR PRACTICE
CHARGE IS FILED, JURISDICTION OF THE AUTHORITY ATTACHES, THE GENERAL
COUNSEL OF THE AUTHORITY, IF HE FINDS CAUSE TO BELIEVE THAT AN UNFAIR
LABOR PRACTICE HAS OCCURRED, HAS EXCLUSIVE JURISDICTION UNDER THE
STATUTE TO ISSUE A COMPLAINT WHICH HE ADJUDICATES IN THE PUBLIC
INTEREST.
AS PREVIOUSLY NOTED, A UNION IS REQUIRED BY SEC. 14(A)(1) OF THE
STATUTE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP. FAILURE TO COMPLY WITH THE OBLIGATION IMPOSED
BY SEC. 14(A)(1) CONSTITUTES AN UNFAIR LABOR PRACTICE IN VIOLATION OF
SEC. 16(B)(8) OF THE STATUTE. THE PROVISION OF SEC. 14(A)(1) OF THE
STATUTE THAT AN EXCLUSIVE REPRESENTATIVE,
" . . . IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP" IS SUBSTANTIALLY IDENTICAL TO THE WHOLLY LIKE
PROVISION OF SEC. 10(E) OF EXECUTIVE ORDER 11491, AS AMENDED. THE
AUTHORITY, IN NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202,
SUPRA, HELD THAT A POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED UNITS, BASED SOLELY UPON UNION MEMBERSHIP,
VIOLATED SEC. 19(B)(1) OF EXECUTIVE ORDER 11491, AS AMENDED. INASMUCH
AS THE PROVISIONS OF SECS. 10(E) AND 19(B)(1) OF THE EXECUTIVE ORDER ARE
SUBSTANTIALLY IDENTICAL TO THE APPLICABLE PROVISIONS OF SECS. 14(A)(1)
AND 16(B)(1) OF THE STATUTE, FOR REASONS WELL STATED BY THE AUTHORITY IN
NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202, SUPRA, I FURTHER
CONCLUDE THAT A POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED UNITS, BASED SOLELY UPON UNION MEMBERSHIP ALSO
VIOLATES SEC. 16(B)(1) OF THE STATUTE. SEE, ALSO, FEDERAL AVIATION
SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, 2 FLRA NO. 103(1980). MOREOVER, A VIOLATION OF
SEC. 16(B)(8) WOULD, IN ANY EVENT, CONSTITUTE A DERIVATIVE VIOLATION OF
SEC. 16(B)(1) OF THE STATUTE.
RESPONDENT'S POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN UNITS
FOR WHICH IT HOLDS EXCLUSIVE RECOGNITION, BASED SOLELY UPON UNION
MEMBERSHIP, WAS FIRMLY AND UNEQUIVOCALLY ESTABLISHED. THUS, BY WAY OF
EXAMPLE, THE RECORD SHOWS, INTER ALIA, THE FOLLOWING. FIRST, PRESIDENT
CONNERY IN HIS MEMORANDUM OF SEPTEMBER 7, 1979, STATED, AFTER DISCUSSION
OF THE AUTHORITY'S DECISION IN NATIONAL TREASURY EMPLOYEES UNION (NTEU),
CHAPTER 202, ET AL., SUPRA, WHICH HE STATED HE FIRMLY BELIEVED WAS WRONG
BUT WOULD NOT BE APPEALED BECAUSE IT WAS BASED ON AN INTERPRETATION OF
EXECUTIVE ORDER 11491, AS AMENDED, "SOMETHING NO LONGER IN EXISTENCE",
STATED, "HOWEVER, THE FACT THAT WE ARE NOT APPEALING THE DECISION DOES
NOT MEAN NTEU POLICY HAS CHANGED. NTEU WILL NOT SUPPLY ATTORNEYS TO
NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS . . . "
SECOND, RESPONDENT'S DEPUTY GENERAL COUNSEL, MR. BUFE, STATED THAT,
"TO THE EXTENT THAT OUR POLICY CAN BE DESCRIBED IN ONE SENTENCE, THIS
(PRESIDENT'S CONNERY'S MEMORANDUM) IS GENERALLY ACCURATE" AND ASSOCIATE
GENERAL COUNSEL DANCH FURTHER CONFIRMED MR. BUFE'S TESTIMONY, STATING
THAT "THE MEMBERSHIP OF THE EMPLOYEE" IS CONSIDERED IN DETERMINING
WHETHER TO SUPPLY AN ATTORNEY TO REPRESENT THE EMPLOYEE.
THIRD, DISTRIBUTION OF PRESIDENT CONNERY'S MEMORANDUM MADE CLEAR TO
EACH CHAPTER THAT RESPONDENT'S POLICY WAS THAT IT WOULD NOT SUPPLY
ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS" AND
MADE CLEAR TO ITS LEGAL STAFF THAT RESPONDENT'S POLICY WAS THAT THEY
SHOULD NOT REPRESENT NON-MEMBERS. IN SHORT, PRESIDENT CONNERY'S
MEMORANDUM TO EACH CHAPTER PRESIDENT WAS INTENDED TO CUT OFF REQUESTS
FOR THE ASSISTANCE OF AN ATTORNEY TO REPRESENT NON-MEMBERS, THAT IS TO
PREVENT THEM "REACHING THE PASS"; BUT IF A REQUEST FOR AN ATTORNEY TO
REPRESENT A NON-MEMBER SHOULD SLIP THROUGH, RESPONDENT'S LEGAL STAFF WAS
TO "CUT THEM OFF AT THE PASS", AS THEY WERE INSTRUCTED THAT RESPONDENT'S
POLICY WAS THAT ATTORNEYS WOULD NOT REPRESENT NON-MEMBERS. THIS WAS
FULLY CONFIRMED BY THE TESTIMONY OF ASSOCIATE GENERAL COUNSEL DANCH WHO
TESTIFIED, "I ASSUME THAT CASES REFERRED TO ME ARE CASES INVOLVING A
MEMBER OF OUR UNION" BUT IF SHE LEARNED THAT A CASE INVOLVED A
NON-MEMBER, "I DO TAKE THAT INTO CONSIDERATION."
THE FOREGOING REPRESENTED UNION POLICY APPLICABLE TO ALL CHAPTERS OF
RESPONDENT AND WAS NOT LIMITED OR RESTRICTED TO ANY PARTICULAR CHAPTER
OR TO ANY UNIT OF EXCLUSIVE RECOGNITION, AND, NECESSARILY WAS NOT
LIMITED OR RESTRICTED TO UNITS WITHIN THE U.S. CUSTOMS SERVICE OR THE
NUCLEAR REGULATORY COMMISSION. SINCE RESPONDENT'S POLICY WAS A POLICY
OF THE NATIONAL OFFICE AND WAS IMPLEMENTED THROUGHOUT THE UNION, A BROAD
ORDER APPLICABLE TO ALL EXCLUSIVE UNITS REPRESENTED BY RESPONDENT WILL
BE RECOMMENDED.
FOURTH, THE POSTING OF PRESIDENT CONNERY'S MEMORANDUM ON UNION
BULLETIN BOARDS IN CUSTOMS REGIONS VII AND IX ADVISED UNIT MEMBERS OF
RESPONDENT'S POLICY THAT "NTEU WILL NOT SUPPLY ATTORNEYS TO NON-MEMBERS
TO HELP IN THE REPRESENTATIONAL EFFORTS".
FIFTH, THE RECORD DEMONSTRATES THAT RESPONDENT IMPLEMENTED ITS POLICY
OF NOT SUPPLYING ATTORNEYS TO NON-MEMBERS IN REPRESENTATIONAL MATTERS AT
THE NUCLEAR REGULATORY COMMISSION. NOT ONLY WAS PRESIDENT CONNERY'S
MEMORANDUM DISTRIBUTED TO THE CHAPTER PRESIDENT AT NRC, AS IT WAS TO
EACH OF RESPONDENT'S CHAPTER PRESIDENTS, BUT THE RECORD SHOWS THAT, IN
ACCORDANCE WITH THAT POLICY, ATTORNEYS WERE PROVIDED TO MEMBERS AT NRC
BUT WERE NOT PROVIDED TO NON-MEMBERS. THUS, UNION MEMBERS RONALD CLARY
AND DAVID RIDEN WERE REPRESENTED BY NTEU ATTORNEYS ATTORNEYS IN
CONNECTION WITH PROPOSED REMOVAL ACTIONS; BUT WARREN WASHINGTON, A
NON-MEMBER, WAS NOT REPRESENTED BY AN ATTORNEY IN HIS PROPOSED REMOVAL
ACTION. IN ADDITION, MS. CYNTHIA TAYLOR RECEIVED NO UNION ASSISTANCE IN
HER PROPOSED REMOVAL ACTION BUT MR. THOMAS, PRESIDENT OF CHAPTER 208,
PROFESSED IGNORANCE AS TO HER MEMBERSHIP STATUS.
RESPONDENT'S ASSERTION, STATED AT LENGTH IN MR. BUFE'S TESTIMONY, IN
EFFECT, THAT BECAUSE MEMBERSHIP IN ONLY ONE OF SEVERAL FACTORS
CONSIDERED IN DETERMINING WHETHER TO PROVIDE THE ASSISTANCE OF AN
ATTORNEY ITS POLICY WAS NOT VIOLATIVE OF THE STATUTE, OR AS STATED IN
ITS BRIEF,
" . . . IN PROVIDING REPRESENTATION, RESPONDENT MUST BALANCE AS MANY
AS EIGHT (8) FACTORS
IN DETERMINING WHETHER OR NOT TO SUPPLY AN ATTORNEY RATHER THAN A
STEWARD OR OFFICER . . .
" . . . MUCH TIME, MONEY AND EFFORT IS SPENT BY RESPONDENT TO ENSURE
THAT ITS STEWARDS AND
OFFICERS SUPPLY THE BEST REPRESENTATION IN THE FEDERAL SECTOR.
RESPONDENT SUBMITS THAT IT HAS
ATTAINED THAT GOAL ONLY THROUGH CONSIDERING MEMBERSHIP IN RESPONDENT
AS A FACTOR IN DECIDING
WHETHER OR NOT TO PROVIDE AN ATTORNEY FOR REPRESENTATIONAL EFFORTS ON
A CASE BY CASE BASIS.
"FOR THESE REASONS, RESPONDENT HAS VIOLATED NO SECTION OF THE STATUTE
. . . " (RESPONDENT'S
BRIEF, P. 24). IS WITHOUT MERIT. INCLUSION OF MEMBERSHIP AS A
FACTOR IN DETERMINING WHETHER TO PROVIDE THE ASSISTANCE OF AN ATTORNEY
VIOLATES SEC. 14(A)(1) OF THE STATUTE, WHICH PROVIDES, IN PART, THAT "AN
EXCLUSIVE REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS
OF ALL EMPLOYEES IN THE UNIT IT REPRESENTS . . . WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP". RESPONDENT'S ASSERTION WOULD CONSTITUTE A
"CATCH 22" SITUATION FOR NON-MEMBERS. IF ALL OTHER FACTORS WERE
POSITIVE, ASSISTANCE OF AN ATTORNEY WOULD STILL BE DENIED IF THE
EMPLOYEE WERE A NON-MEMBER. THAT THIS WAS RESPONDENT'S UNEQUIVOCAL
PURPOSE AND INTENT WAS STATED PLAINLY AND SUCCINCTLY BY PRESIDENT
CONNERY IN HIS MEMORANDUM OF SEPTEMBER 7, 1979, TO WIT:
"NTEU WILL NOT SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE
REPRESENTATIONAL EFFORTS."
RESPONDENT'S POLICY, THAT IT WOULD NOT SUPPLY ATTORNEYS TO
NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS, IMPLEMENTED AS SET
FORTH HEREINABOVE, VIOLATED SECS. 14(A)(1), 16(B)(1) AND (8) OF THE
STATUTE AND EVEN IF RESPONDENT HAD ON SOME PRIOR OCCASION PROVIDED AN
ATTORNEY TO REPRESENT A NON-MEMBER, ITS POLICY WAS NONE THE LESS
VIOLATIVE OF THE STATUTE. IN POINT OF FACT, THE ONLY INSTANCE RAISED BY
RESPONDENT CONCERNED AS "ATTEMPT" TO REPRESENT TWO NON-MEMBERS WHO HAD
PRIVATE COUNSEL IN A GRIEVANCE PROCEEDING. UNDER THE COLLECTIVE
BARGAINING AGREEMENT, ARBITRATION MUST BE INVOKED BY THE NATIONAL OFFICE
OF RESPONDENT. THIS WAS DONE BY A LETTER SIGNED BY JAMES D. THOMAS FOR
VINCENT L. CONNERY (RES. EXH. 3). NO ARBITRATION RESULTED; BUT, IN ANY
EVENT, THE LETTER SEEKING TO INVOKE ARBITRATION WAS DATED JUNE 8, 1979,
THREE MONTHS PRIOR TO THE ISSUANCE OF PRESIDENT CONNERY'S MEMORANDUM OF
SEPTEMBER 7, 1979. MR. BENSON TESTIFIED THAT THE ONLY CASE THAT HAD
GONE TO ARBITRATION AT NRC SINCE RESPONDENT BECAME THE EXCLUSIVE
REPRESENTATIVE HAD INVOLVED AN EMPLOYEE ON DUES WITHHOLDING.
RESPONDENT'S ESTABLISHED POLICY OF DISPARATE TREATMENT AMONG
BARGAINING UNIT EMPLOYEES BASED SOLELY UPON UNION MEMBERSHIP VIOLATED
THE OBLIGATION IMPOSED BY SEC. 14(A)(1) OF THE STATUTE AND CONSTITUTED
AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECS. 16(B)(1) AND (8) OF THE
STATUTE AND EVEN IF RESPONDENT HAD GRANTED SPECIAL DISPENSATION IN
SELECTED CASES AND HAD PROVIDED THE ASSISTANCE OF ATTORNEYS TO
NON-MEMBERS, AND THE RECORD FAILS TO SHOW THAT ANY SUCH SPECIAL
DISPENSATION HAD BEEN GRANTED AFTER THE DATE OF PRESIDENT CONNERY'S
MEMORANDUM OF SEPTEMBER 7, 1979; NEVERTHELESS, THE POLICY OF DISPARATE
TREATMENT WAS VIOLATIVE OF THE SEC. 14(A)(1) AND 16(B)(1) AND (8) OF THE
STATUTE.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN, AND IS ENGAGING IN,
CERTAIN CONDUCT IN VIOLATION OF SECS. 14(A)(1), 16(B)(1) AND (8) OF THE
STATUTE, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7), AND
SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5 C.F.R. CHAPTER
XIV, SEC. 2423.26, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980, THE
AUTHORITY HEREBY ORDERS THAT NATIONAL TREASURY EMPLOYEES UNION SHALL:
1. CEASE AND DESIST FROM:
A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN UNITS OF
EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF WHETHER OR NOT SUCH
EMPLOYEES ARE MEMBERS OF THE
NATIONAL TREASURY EMPLOYEES UNION.
B) IN ANY LIKE OR RELATED MANNER REFUSING TO REPRESENT THE INTERESTS
OF ALL EMPLOYEES IN
THE UNITS IT REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP OR INTERFERING WITH, RESTRAINING, OR COERCING ANY EMPLOYEE
IN THE EXERCISE BY THE
EMPLOYEE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
A) NATIONAL TREASURY EMPLOYEES UNION, BY ITS PRESIDENT, SHALL NOTIFY
ALL NATIONAL OFFICE
OFFICIALS, INCLUDING ITS LEGAL STAFF, AND EACH CHAPTER PRESIDENT, IN
WRITING, THAT THE NATION
TREASURY EMPLOYEES UNION'S POLICY HAS CHANGED; THAT THE NATIONAL
TREASURY EMPLOYEES UNION WILL
SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL
EFFORTS ON THE SAME BASIS AS
IT SUPPLIES ATTORNEYS TO MEMBERS TO HELP IN THE REPRESENTATIONAL
EFFORTS; AND THAT THE
STATEMENT IN PRESIDENT CONNERY'S MEMORANDUM, DATED SEPTEMBER 7, 1979,
TO THE CONTRARY IS
HEREBY WITHDRAWN AND RESCINDED.
B) NATIONAL TREASURY EMPLOYEES UNION WILL REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN ALL
UNITS IT REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP.
C) POST AT ITS NATIONAL HEADQUARTERS, AT THE LOCAL BUSINESS OFFICE OF
EACH OF ITS CHAPTERS,
AND AT EACH AGENCY OR ACTIVITY, INCLUDING BUT NOT LIMITED TO U.S.
CUSTOMS SERVICE AND
U.S. NUCLEAR REGULATORY COMMISSION, FOR WHICH THE NATIONAL TREASURY
EMPLOYEES UNION, AND/OR
ANY CHAPTER OF THE NATIONAL TREASURY EMPLOYEES UNION HOLDS EXCLUSIVE
RECOGNITION, AND AT ALL
PLACES WHERE NOTICES TO MEMBERS AND OTHER EMPLOYEES ARE CUSTOMARILY
POSTED, INCLUDING
FACILITIES PROVIDED BY THE RESPECTIVE AGENCIES OR ACTIVITIES, COPIES
OF THE ATTACHED NOTICE
MARKED "APPENDIX", ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF THE
NATIONAL TREASURY
EMPLOYEES UNION AND THEY SHALL BE POSTED AND MAINTAINED FOR 60
CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND
TO OTHER EMPLOYEES ARE
CUSTOMARILY POSTED. THE PRESIDENT OF NATIONAL TREASURY EMPLOYEES
UNION SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR
COVERED BY ANY OTHER MATERIAL.
D) SUBMIT APPROPRIATE SIGNED COPIES OF SUCH NOTICE TO THE
COMMISSIONER OF THE U.S. CUSTOMS
SERVICE, WASHINGTON, D.C.; THE CHAIRMAN OF THE U.S. NUCLEAR
REGULATORY COMMISSION, WASHINGTON,
D.C.; AND, UPON REQUEST, TO AN APPROPRIATE OFFICER OF EACH OTHER
AGENCY OR ACTIVITY FOR WHICH
THE NATIONAL TREASURY EMPLOYEES UNION AND/OR ANY CHAPTER OF THE
NATIONAL TREASURY EMPLOYEES
UNION HOLDS EXCLUSIVE RECOGNITION, FOR POSTING IN CONSPICUOUS PLACES
WHERE UNIT EMPLOYEES ARE
LOCATED, WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
CONSECUTIVE DAYS FROM THE DATE OF
THE POSTING.
E) 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.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 25, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL MEMBERS AND EMPLOYEES PURSUANT TO A DECISION
AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND
IN ORDER TO EFFECTUATE THE POLICIES OF THE FEDERAL
LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY ALL MEMBERS AND EMPLOYEES, OF ALL UNITS
FOR WHICH THE NATIONAL TREASURY EMPLOYEES UNION, AND/OR
ANY CHAPTER OF NATIONAL TREASURY EMPLOYEES UNION, HOLDS
EXCLUSIVE RECOGNITION, THAT:
WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION
SOLELY ON THE BASIS OF WHETHER OR NOT EMPLOYEES ARE MEMBERS OF THE
NATIONAL TREASURY EMPLOYEES UNION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER REFUSE TO REPRESENT THE
INTERESTS OF ALL EMPLOYEES IN ANY UNIT OF EXCLUSIVE RECOGNITION WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP OR
INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE
EMPLOYEE OF ANY RIGHT UNDER THE FEDERAL SERVICES LABOR-MANAGEMENT
RELATIONS STATUTE.
WE HEREBY NOTIFY ALL MEMBERS AND ALL EMPLOYEES IN ALL UNITS OF
EXCLUSIVE RECOGNITION THAT THE NATIONAL TREASURY EMPLOYEES UNION'S
POLICY HAS CHANGED; THAT THE NATIONAL TREASURY EMPLOYEES UNION WILL
SUPPLY ATTORNEYS TO NON-MEMBERS TO HELP IN THE REPRESENTATIONAL EFFORTS
ON THE SAME BASIS AS IT SUPPLIES ATTORNEYS TO MEMBERS TO HELP IN THE
REPRESENTATIONAL EFFORTS; AND THAT THE STATEMENT IN PRESIDENT CONNERY'S
MEMORANDUM, DATED SEPTEMBER 7, 1979, TO THE CONTRARY IS HEREBY WITHDRAWN
AND RESCINDED.
WE WILL REPRESENT THE INTERESTS OF ALL EMPLOYEES IN ALL UNITS WE
REPRESENT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP.
NATIONAL TREASURY EMPLOYEES UNION
DATED: BY: PRESIDENT
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 MEMBERS OR EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
REGION 3, WHOSE ADDRESS IS: ROOM 300, 1133-- 15TH STREET, N.W.,
WASHINGTON, D.C. 20005 (TELEPHONE NO. FTS: 8-653-8452; COMMERCIAL:
(202) 653-8452).
--------------- FOOTNOTES$ ---------------
/1/ ADDITIONALLY, THE RESPONDENT FILED A MOTION FOR ORAL ARGUMENT.
THE GENERAL COUNSEL AND THE U.S. CUSTOMS SERVICE RESPONDED THAT ORAL
ARGUMENT WAS UNNECESSARY AND WOULD SERVE NO USEFUL PURPOSE. THE
AUTHORITY CONCLUDES THAT THE RECORD IN THIS CASE PROVIDES A FULL AND
SUFFICIENT BASIS UPON WHICH TO REACH A DECISION REGARDING THE ISSUES
PRESENTED. ACCORDINGLY, THE RESPONDENT'S MOTION IS DENIED.
/2/ SECTION 7114(A)(1) PROVIDES:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING, ALL EMPLOYEES IN
THE UNIT. AN EXCLUSIVE
REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP.
/3/ SECTION 7116(B) PROVIDES IN PERTINENT PART:
SEC. 7116. UNFAIR LABOR PRACTICES
* * * *
(B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR
ORGANIZATION--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
* * * *
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/4/ SEE ALSO NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202,
ET AL., 1 FLRA 909 (1979), CITED BY THE JUDGE, WHEREIN THE AUTHORITY
FOUND THAT NTEU VIOLATED ITS DUTY OF FAIR REPRESENTATION UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY VIRTUE OF ITS DISPARATE POLICY OF SUPPLYING
NATIONAL OFFICE ATTORNEYS TO REPRESENT UNION MEMBERS WHILE SUPPLYING
LOCAL STEWARDS TO REPRESENT NON-MEMBERS. THE AUTHORITY FOLLOWED THE
NTEU DECISION IN FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION
DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, 2 FLRA
801(1980).
/5/ SECTION 7102 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 7102. EMPLOYEES' RIGHTS
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. . . .
/6/ IN ADOPTING THE JUDGE'S CONCLUSION THAT NTEU'S CONDUCT VIOLATED
SECTION 7116(B)(1) AND (8), HOWEVER, THE AUTHORITY DOES NOT REACH OR
PASS UPON THE JUDGE'S ADDITIONAL COMMENT THAT "A VIOLATION OF SEC.
(71)16(B)(8) WOULD, IN ANY EVENT, CONSTITUTE A DERIVATIVE VIOLATION OF
SEC. (71)16(B)(1) OF THE STATUTE." THUS, WHILE NTEU'S FAILURE OR REFUSAL
TO COMPLY WITH SECTION 7114(A)(1) OF THE STATUTE INTERFERED WITH,
RESTRAINED, AND COERCED EMPLOYEES IN THE EXERCISE OF THEIR PROTECTED
RIGHTS UNDER THE STATUTE, IT IS UNNECESSARY TO DECIDE WHETHER ANY
FAILURE TO COMPLY WITH A PROVISION OF THE STATUTE SIMILARLY WOULD
VIOLATE EMPLOYEES' PROTECTED RIGHTS.
/7/ HEREIN, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE, 5 U.S.C. 7101, ET SEQ., ARE REFERRED TO WITHOUT
INCLUSION OF THE INITIAL "71" PORTION OF THE STATUTE REFERENCE. THUS,
BY WAY OF EXAMPLE, SECTION 7114(A)(1) SIMPLY AS "14(A)(1)"; HOWEVER,
UNLESS OTHERWISE SPECIFICALLY INDICATED, ALL SUCH REFERENCES ARE TO
CHAPTER 71 OR THE STATUTE.
/8/ RESPONDENT'S MOTION TO POSTPONE THE HEARING, FILED JULY 31, 1980
(G.C. EXH. 1(M)), OPPOSED BY GENERAL COUNSEL (G.C. EXH. 1(N), WAS DENIED
BY ORDER DATED AUGUST 5, 1980 (G.C. EXH. 1(P)). RESPONDENT'S MOTION FOR
MORE DEFINITE STATEMENT WAS FILED AUGUST 6, 1980, (G.C. EXH. 1(Q)) WAS
REFERRED TO THE CHIEF ADMINISTRATIVE LAW JUDGE BY ORDER DATED AUGUST 8,
1980 (G.C. EXH. 1(R)), WAS OPPOSED BY GENERAL COUNSEL (G.C. EXH. 1(T)),
AND WAS DENIED BY ORDER DATED AUGUST 8, 1980 (G.C. EXH. 1(V)).
RESPONDENT RENEWED ITS MOTION FOR MORE DEFINITE STATEMENT AT THE
HEARING, BUT NARROWED THE SCOPE OF ITS MOTION TO PARAGRAPH 8 OF THE
COMPLAINT IN 3-CO-26, AND THE UNDERSIGNED GRANTED RESPONDENT'S MODIFIED
MOTION AND COUNSEL FOR GENERAL COUNSEL, ACCORDINGLY, ADVISED RESPONDENT
OF THE LOCATIONS AT WHICH PRESIDENT CONNERY'S MEMORANDUM HAD BEEN POSTED
(TR. 10).
/9/ ON SEPTEMBER 2, 1980, RESPONDENT FILED A MOTION FOR ADMISSION OF
ASSERTEDLY NEW AND HERETOFORE UNAVAILABLE EVIDENCE; GENERAL COUNSEL
FILED AN OPPOSITION ON SEPTEMBER 4, 1980; AND THE MOTION WAS DENIED ON
SEPTEMBER 11, 1980, AS PART OF THE ORDER GRANTING EXTENSION OF TIME TO
FILE BRIEFS AND DENYING MOTION FOR ADMISSION OF NEW AND HERETOFORE
UNAVAILABILITY EVIDENCE WHICH IS HEREBY INCORPORATED BY REFERENCE. THE
REASONS FOR DENYING THE MOTION FOR ADMISSION OF EVIDENCE WERE FULLY SET
FORTH IN THE ORDER OF SEPTEMBER 11, 1980; ARE HEREBY REAFFIRMED; AND
NEED NOT BE REPEATED IN DETAIL. SUFFICE IT TO SAY THAT, AS NOTED IN THE
ORDER OF SEPTEMBER 11, 1980, " . . . THE EVIDENCE PROFFERED BY
RESPONDENT FULLY CONFIRMS THE EVIDENCE PREVIOUSLY PRESENTED BY THE
GENERAL COUNSEL, NAMELY, THAT THE MEMORANDUM WAS, INDEED, POSTED BY
RESPONDENT AT INTERNATIONAL FALLS AND AT LOS ANGELES, CAN NOT PROPERLY,
BE CHARACTERIZED AS "NEW" EVIDENCE BUT IS SIMPLY CUMULATIVE . . .
NEVERTHELESS, THE ONLY FACT MATERIAL TO POSTING IS THAT THE MEMORANDUM
WAS IN FACT POSTED WHICH RESPONDENT ADMITS . . . "
/10/ SEE, ALSO: 5 U.S.C. 7103(A)(3), 5 U.S.C. 101, 102, 103, 104 AND
105.
/11/ RESPONDENT'S MOTION TO CORRECT TRANSCRIPT (RES. BRIEF, N. 2, P.
2) IS GRANTED AND THE TRANSCRIPT IS HEREBY CORRECTED AS FOLLOWS:
PAGE 98, 1. 21, "17.50" IS CORRECTED TO READ "71.50".
PAGE 78, 1. 21, "ADMONITION" IS CORRECTED IN BOTH PLACES WHERE IT
APPEARS ON 1. 21 TO READ "ADMISSION" .
/12/ MR. BUFE, TESTIFIED, THAT, " . . . THE NOTION THAT WE WOULD HAVE
TO PROVIDE A HIGH-PRICED ATTORNEY TO FLY HALFWAY ACROSS THE COUNTRY TO
REPRESENT A NON-MEMBER IN A SPECIFIC CASE IS SOMETHING THAT WE
DEFINITELY DO TAKE INTO CONSIDERATION AS ONE FACTOR . . ." (TR. 106).
NOTWITHSTANDING MR. BUFE'S EQUIVOCATION, THE INFERENCE IS CLEAR THAT, AS
TO A NON-MEMBER, THE ANSWER WOULD BE "NO", WE WILL NOT SUPPLY AN
ATTORNEY FOR A NON-MEMBER.
/13/ IT IS UNNECESSARY TO MAKE, AND, ACCORDINGLY, I EXPRESSLY DECLINE
TO ATTEMPT, ANY FORMULATION OF CONSIDERATIONS WHICH MIGHT, UNDER VARIOUS
CIRCUMSTANCES, BE PROPER.