[ v17 p862 ]
The decision of the Authority follows:
17 FLRA No. 115 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 556, AFL-CIO Respondent and PATSY K. PAIGE Charging Party Case No. 8-CO-37 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 556, AFL-CIO Respondent and UNITED STATES DEPARTMENT OF THE NAVY, NAVY EXCHANGE, PEARL UNITED STATES NAVAL BASE PEARL HARBOR, HAWAII Charging Party Case No. 8-CO-38 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaints, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Respondent and the General Counsel filed exceptions to the Judge's Decision. 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, the Authority hereby adopts the Judge's findings, conclusions and recommendations as modified herein. With regard to the appropriate remedy for the violations found in Case No. 8-CO-37, the Authority agrees with the Judge that it is not material that the Union may have decided that the grievances or statutory appeals at issue were lacking in merit, as the Union had interjected itself into the grievance process, and had refused to assist the employees only because of their non-member status. At the same time, we also agree with the Judge, in the circumstances of this case, that a backpay remedy is not warranted, noting particularly the Judge's conclusion that "the weight of the evidence does not indicate that intervention by the Union would have resulted in the substantive relief sought by the grievant." Hines v. Anchor Motor Freight, 424 U.S. 554, 91 LRRM 2481 (1976). We do not agree, however, that the Union should pay for "legal representation, of the employees' choice." The facts of this case do not in our view warrant, and no party seeks, such an order. Rather, we will order that the Union provide representation, by its own or outside legal counsel if appropriate, to the employees if they choose to seek a waiver of time limits under either the negotiated grievance procedure or any statutory appeals procedures available to them to now file grievances or appeals. With regard to Case No. 8-CO-38, the Authority agrees with the Judge's conclusion that the Union violated section 7131(b) of the Statute. While the solicitation in this case was undertaken by a person who was a full-time Union representative and not an employee within the meaning of the Statute, the record reveals that the Union representative specifically had requested duty time from management for four employees, resulting in overtime payments for two, to discuss the employees' concerns with their conditions of employment, and the Union representative used this time for another purpose, the solicitation of Union membership. In this regard, the Statute requires that "any activities" by an employee relating to internal union business, "including the solicitation of membership," be on nonduty time. /1/ The requirement applies to an employee's use of duty time and, as here, whenever a Union representative meets with employees on their duty time for such purposes. /2/ Since the Union knowingly violated the spirit and letter of section 7131(b), the Authority concludes, in agreement with the Judge, that the Union thereby violated section 7116(b)(1) and (8) of the Statute. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Service Employees International Union, Local 556, AFL-CIO, shall: 1. Cease and desist from: (a) Conditioning representation under the parties' collective bargaining agreement of non-members on their joining the Service Employees International Union, Local 556, AFL-CIO. (b) Telling employees in the bargaining unit that it will not process grievances pursuant to the contractual grievance procedure because of their non-membership in the Union. (c) Refusing to process grievances of bargaining unit employees because they are not members of the Service Employees International Union, Local 556, AFL-CIO. (d) Soliciting Union membership on employees' duty time. (e) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Represent the interests of all employees in the bargaining unit without regard to Union membership. (b) Upon request, provide employees Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu with Union representation, by its own or outside legal counsel if appropriate, to allow them to seek a waiver of time limits either under the negotiated grievance procedure or applicable statutory appeals procedures, so that they might seek to process their grievances or file statutory appeals, and provide them whatever services the Union would have provided in this matter had it not acted discriminatorily. (c) Post at its business offices and its normal meeting places, including all places where notices to members, and to employees of the Navy Exchange, Pearl, United States Naval Base, Pearl Harbor, Hawaii, 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 Service Employees International Union, Local 556, AFL-CIO, or his designee, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where Union notices to members and unit employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, 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., May 8, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL MEMBERS AND OTHER 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 condition representation under the parties' collective bargaining agreement of non-members on their joining the Service Employees International Union, Local 556, AFL-CIO. WE WILL NOT tell employees in the bargaining unit that the Service Employees International Union, Local 558, AFL-CIO, will not process grievances pursuant to the contractual grievance procedure because of their non-membership in the Union. WE WILL NOT refuse to process grievances of bargaining unit employees because they are not members of the Service Employees International Union, Local 556, AFL-CIO. WE WILL NOT solicit Union membership on employees' duty time. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute. WE WILL represent the interests of all employees in the bargaining unit without discrimination and without regard to Union membership. WE WILL, upon request, provide employees Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu with representation, by our own or outside legal counsel if appropriate, to allow them to seek a waiver of time limits, either under the negotiated grievance procedure or applicable statutory appeals procedures, so that they may seek to process their grievances or file statutory appeals, and provide them whatever services the Union would have provided in this matter had it not acted discriminatorily. (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 of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 688-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- E. A. Jones, Esq. For the General Counsel Eric A. Seitz, Esq. For the Respondent Robert F. Griem, Esq. For the Activity Before: ELI NASH, JR., Administrative Law Judge DECISION Statement of the Case This case arose pursuant to the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter called the Statute), as a result of an unfair labor practice Consolidated Complaint and Notice of Hearing issued May 12, 1981 by the Regional Director, Region 8, Federal Labor Relations Authority, Los Angeles, California. The Consolidated Complaint alleges that Service Employees International Union (hereinafter called the Union) violated section 7116(b)(1) and (8) of the Federal Labor Management Relations Statute (hereinafter called the Statute) by telling certain employees that the Union would not represent them in connection with their reduction-in-force unless they joined the Union; by telling employees that it had been instructed that employees could not file a grievance until they joined the Union; by not filing a grievance on behalf of the involved employees; and, by soliciting employees to join the Union while they were on duty status. Respondent's Answer denied the commission of any unfair labor practices. A hearing was held in this matter before the undersigned in Honolulu, Hawaii. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. All parties submitted timely briefs which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact and conclusions. Findings of Fact The Activity operates two gas stations at the Pearl Harbor Naval Base. Prior to January 1981, one of the stations was fully automated while the other was a self-service station with lane attendants who collected cash from customers. The self-service station employed four employees in the NA-2/3 Mobile Equipment Services job classification. They were Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu. In December 1980, the Activity automated the self-service station. Since the automated station did not involve either servicing cars or collecting cash in the lanes, the Activity decided that it no longer needed employees in the Mobile Equipment Service classification, the positions occupied by Paige, Gutowski, Santiago and Kamanu. Instead, the Activity decided that it would operate the newly automated station with a lower paying classification, PS-2 checker/cashier, thus requiring a reorganization and reduction-in-force. After making its decision to reorganize and conduct a reduction-in-force, the Activity, as is required by the collective bargaining agreement, Article 19, notified the Union by letter of its intention to conduct a reorganization. /3/ Union vice president Gregory Elliot acknowledged receipt of this notification. Elliot testified that he was contacted in early January 1981 about the reduction-in-force in the gas station, and that he then contacted Exchange Manager Gantz with a request to negotiate on the retention of credits, an area which the parties had not successfully resolved since 1979. As provided in Article 19, Section 5 of the collective bargaining agreement, the four affected employees were notified, following the notification to the Union, on January 19, 1981, by a General Reduction-In-Force Notice, that each could be subject to a reduction-in-force by virtue of the reorganization of the self-service station. The General Reduction-In-Force Notice stated that the proposed action was being taken because of "a reorganization of the Service Station due to conversion to fully automated gas lanes". Each employee was given the general notice in the presence of a Union shop steward. The notice also stated that the employee could be terminated, but advised that each would receive a specific notice at least five calendar days prior to termination, and that at that time each would be advised of his or her job and appeal rights. Following receipt of the general reduction-in-force notices the affected employees Paige, Gutowski, Santiago and Kamanu, along with a secretary, Sharon Smith and Union business representative Debbie Page /4/ and shop steward Robert Goroza met with Exchange Manager Gantz, Gas Station Manager Chun and a gas station supervisor, Linda Long on January 21, 1981. This meeting was apparently called to discuss the general reduction-in-force notices of January 19, 1981. It is not clear whether the Union attended this meeting to assist these employees, since Article 19 of the collective bargaining agreement provides that the Union will provide assistance in communicating reasons for a reduction-in-force to affected employees. What is clear is that the Union, before the meeting ended, assumed a representational role. Exchange Manager Gantz initially explained why the reduction-in-force was necessary and assured the affected employees that they would have first consideration for filling the new full-time PS-2 checker/cashier jobs at the automated station. Sharon Smith, who was unaffected by the reorganization, attempted to ask questions on behalf of the four employees. However, Union business representative Page inquired whether the employees wanted Smith or the Union to represent them concerning the reduction-in-force. Since the employees selected the Union, Smith was required by business representative Page to leave the meeting prior to its ending. At the conclusion of the meeting, business representative Page requested and received permission to meet alone with the four employees and Union steward Goroza. After Activity representatives had departed, Page, according to the four employees, stated that assisting them would require "a lot of time after hours and on weekends to research" other avenues that might be taken to help the employees. Business representative Page then told the four employees that if they wanted her to help them, one of them would have to join or "rejoin" the Union. Page added that they would have five days to join the Union and that they could get the necessary papers from steward Goroza. In response to a question concerning the cost of membership Page informed them that new members paid $15.00 while renewing membership cost $50.00. Supervisor Long's testimony corroborates that a fee was mentioned for Union membership during the meeting. Long stated that, after the meeting, she overheard a heated argument involving the four employees, Sharon Smith, and steward Goroza concerning what had happened in the meeting with Page. According to Long, she overheard them arguing over the $50.00 they were told they would have to pay for the Union to represent them. She also overheard someone say that the contract was supposed to cover them up to arbitration. Long broke up this gathering and told the employees to follow the proper procedures if they wanted to talk to Goroza. Union business representative Page's recollection of the meeting differs. According to Page, she explained to the employees that the reduction-in-force procedures had to be followed and that, if they were, it would take a lot more investigating to look into the matter. Page further states that she told employees that the Union would be looking into the reasons behind the reorganization, that the question had already been raised in the Union office, and that a Union vice president was looking into it. As already stated, vice president Elliot's testimony confirms the Union's awareness of the proposed reduction-in-force. Page testified that she told the employees that if they wanted the Union to represent them, they would have to fill out a representation form and that they had five days to fill out this form. Page also testified that a gentleman inquired if the employees had to be members of the Union for the forms to be processed, but recalls only that she probably responded, "(T)he Union strives on membership and we will be more than happy to have (you) become members." In conjunction with this question, Page also recalls the mention of fees for joining and rejoining the Union. Union business representative Page further testified that, prior to processing a case, the Union representative or first line shop steward must have a letter of representation which is signed authorizing the Union to proceed. This letter of representation is required of members and nonmembers alike. There is no indication from the record that the employees confused this letter of representation with an authorization to join the Union. Business representative Page also testified that at the time of the January 21, 1981, meeting she felt a grievance could not be filed although she did not explain this to the employees. Clearly, Page did not inform these employees that the matter could not be handled under a statutory appeals procedure, or that it could not be handled under the negotiated grievance procedure as is raised by vice president Elliot in his later testimony. Page states that she told the employees that the Union had seven days to appeal or take action on the General Reduction-In-Force Notice of January 19, 1981-- leaving five days to sign a representation form, but later admitted that there was no pressing need on January 21, 1981, for signatures on authorization forms within five days. Her statement apparently left the four employees with the notion that this was a matter which could be handled under the grievance machinery and further confused the issue. In addition, Page admitted that the contract does not require a signature on an authorization form as a prerequisite to filing a grievance. Page also acknowledged that the contract permits grievances on any employee employment-related dissatisfaction. A review of the collective bargaining agreement does not disclose whether a reduction-in-force is or is not subject to the grievance procedure of Article 28. Further, grade and pay retention matters resulting from a reduction-in-force are normally appealable to the Office of Personnel Management under a statutory appeals procedure rather than through the grievance machinery. However, certain matters relating to reductions in force may be handled under the grievance machinery, as is pointed out later. The meeting between Page and the four employees lasted about 15 minutes, and although Gutowski and Santiago had clocked out prior to the meeting, employees Paige and Kamanu were on the clock throughout both meeting with Activity and Union representatives. Since Paige and Kamanu were on the clock during these meetings, business representative Page spoke with supervisor Long after the meetings, telling her that the two employees should be paid overtime for the meetings. During the meeting with the employees, business representative Page also told employees Paige and Kamanu that she would make sure that they were paid for the time spent in the meetings that afternoon, and they were indeed paid overtime for the meetings. Based on the credited testimony of the four affected employees, which is partially corroborated by the testimony of supervisor Long, it is found that Union business representative Page told these employees that if they wanted the Union to help them concerning the reduction-in-force they would have to join or rejoin the Union, and that the cost, depending on whether they joined or rejoined, would be either $15.00 or $50.00. It is also found, that the record establishes that Union business representative Page solicited membership of these employees while they were on the clock. Later on the afternoon of January 21, 1981, Paige went to supervisor Long to inquire about filing a grievance. Long simply instructed Paige to follow the contract procedures. Paige then went to Union steward Goroza, and obtained from him a blank grievance form. As noted below, the contract procedure would indeed allow Paige to process any grievance without Union intervention. Thereafter, Paige talked to her three fellow employees about filing a grievance for the group. In addition, the four employees conferred and agreed to each chip in enough money for Kamanu to join the Union since business representative Page had said she would represent them if one of them was in the Union. Kamanu testified that he found out about the grievance after it had been turned down by the Union. Later, when he learned that the Union was not going to help them, Kamanu told the other three that there was no sense in joining. For whatever reasons, none of the employees joined the Union. Paige then drafted a grievance dated January 22, 1981 based on the January 21, 1981 meeting with Exchange Manager Gantz. The nature of the grievance was described as, "company is planning on adding more employees, which will be doing the same work at less pay. Also Mr. Gantz has no answers to our questions. But wants us to take a $1.14 drop in pay." Paige's grievance requested the following corrective action: "If I am doing the same work, I want the same pay." In essence, the grievance involved grade and salary retention, and as already noted, there is a serious question whether that aspect could have been processed under the grievance machinery. Paige then tried unsuccessfully to contact business representative Page. Failing this, Paige requested shop steward Goroza to submit the grievance to business representative Page for her. Goroza took the grievance and said he would try to reach Page. However, Goroza apparently did not talk to Page, but instead took the grievance to chief steward Lynn Mata who told him she could not take it because the employees had not joined the Union. Goroza returned the grievance to Paige and told her what Mata had said. Supervisor Long corroborates Paige, testifying that she overheard Paige and Goroza arguing about what Mata had said-- that since none of them joined the Union, they were not going to be represented by the Union. Since this incident occurred at the gas station, Long asked Goroza what was going on. Goroza responded that he had just returned from Mata who had instructed him to return the grievance to Paige because the four employees had not joined the Union and paid the fees. Long then instructed the employees to return to work. Based on the foregoing, it is found that chief steward Mata did in fact refuse to process the Paige grievance because none of the affected employees were Union members and that the employees were told that their lack of membership was the reason their grievance could not be processed. The grievance form also states that it was submitted to a "Manager" on January 23, 1981. However, there is no record evidence that it was ever received or processed by any Activity official. In fact, Gantz on recross examination concedes that, "nothing had happened to these employees at that point so I don't see how they could have filed an appeal." 5 C.F.R. 351.901 permits appeals by "(a)n employee who has been affected by a reduction in force action" to the Merit Systems Protection Board. However, there is no indication that these employees were ever informed of any appeal rights. The collective bargaining agreement provides in Section 7 of Article 28 that an employee may present a grievance without intervention by the Union. /5/ If indeed the grievance had been presented to a management official, as the grievance form suggests, it should have been processed without Union assistance. While this may be true, it is found that even if management did not process the grievance, the Union would not be relieved of its responsibility to represent these employees, particularly since it initially sought to represent them and its reason for not doing so was that these employees were not Union members. Subsequently, Paige informed the other three employees of the Union's refusal to accept the grievance. Paige also inquired of supervisor Long what other options were available since the Union had refused to assist because they had not joined. Supervisor Long checked with Exchange Manager Gantz and gave Paige the telephone number of the local agent for the Federal Labor Relations Authority. Apparently, neither Long nor Gantz suggested that the grievance could be processed without Union intervention. Paige thereafter contacted the local Authority agent and filed the instant unfair labor practice charge on February 11, 1981, prior to implementation of the reduction-in-force. Around March 31, 1981, the reorganization of the gas station was implemented. There is no evidence to suggest that any further grievance was filed or that the employees sought further assistance of the Union after the implementation. As a result of the reorganization, employee Santiago submitted her resignation and was rehired in the laundry, in the dry-cleaning plant; employee Gutowski exercised her retreat right to a presser position in the laundry; employee Kamanu was hired as a cashier/checker in the newly automated gas station; and, employee Paige went on maternity leave beginning in April 1981, but ultimately returned to a cashier/checker position at the newly automated station. According to the Union's vice president Gregory Elliot, he was, as previously noted, aware of the reduction-in-force in early January 1981 and at that time he contacted Exchange Manager Gantz regarding negotiations. Gantz does not recall a specific contact, but assumes there was some contact with the Union concerning the reorganization. After the unfair labor practice charge was filed in early February 1981, Elliot again contacted Gantz concerning the reduction-in-force because he was concerned about possible financial liabilities of the Union. Elliot states that he informed Gantz of his concern with respect to the grade and pay retention and the way employees would be placed in the PS-2 positions. According to Elliot, Gantz told him that it was a reorganization and that was the way it was going to be handled. Elliot allegedly argued that the matter should be handled as a reclassification because of the change of duties, but Gantz responded that the Exchange was not going to give them the benefit of grade and pay retention. Gantz recalls that he had contact with the Union concerning the reduction-in-force following the January 21, 1981 meeting, but does not recollect the exact nature of these meetings. I credit Elliot in finding that the Union indeed contacted Activity management, in both January and February concerning the reduction-in-force, but was unsuccessful in its attempts to negotiate concerning the matter. Elliot also testified that his research on the matter revealed that the only issue involved was whether the Activity's action was a reorganization or a reclassification. Certainly this is a matter about which the parties disagreed and the grievance machinery of the collective bargaining agreement could have been brought into play to resolve this difference in understanding. Nonetheless, Elliot states that the issue of pay could not be handled under the grievance procedure and that there were no regulations regarding what would happen to an employee moving between pay schedules in non-appropriated fund operations. Finally, Elliot testified that no grievance was filed concerning the actual implementation of the reduction-in-force because the Civil Service Reform Act provisions applied only to employees covered under the crafts and trades pay schedule and do not apply to the affected employees, and that the provisions of the Civil Service Reform Act concerning a (non-appropriated) employee's entitlements to the same pay cannot be addressed under a grievance procedure or under any appeals procedure. /6/ Discussion and Conclusions Section 7114(a)(1) of the Statute provides that a labor organization is "responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." Furthermore, the doctrine that an exclusive representative's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members of that unit without arbitration or discrimination, and to exercise its discretion with complete good faith and honesty to avoid arbitrary conduct, has long been accepted by the Supreme Court. Vaca v. Sipes, 386 U.S. 171 (1967). The Union insists that the General Counsel has not produced any evidence that it failed or refused to fulfill its obligation of fair representation to the four employees herein. The Union argues that from the time it first learned of the employer's planned reorganization, it expended considerable effort, first investigating and then opposing the proposed reduction-in-force. Further, it states that no grievance was filed during January or February 1981 because the Agency was only proposing to act and had not taken such action. After the reduction-in-force was implemented, it decided not to file a grievance or appeal because it concluded that there was no grievable or appealable matter. Although the grievance here may have been complex and time consuming, that alone is not determinative of whether the Union breached its duty of fair representation. The statutory obligation of an exclusive representative to represent all members of a designated unit is breached when conduct by the Union is arbitrary, discriminatory, or in bad faith, Vaca v. Sipes, supra. The credited evidence discloses that Union business representative told employees Paige, Gutowski, Santiago and Kamanu on January 21, 1981 that the Union would represent them only if they joined or "rejoined"; that these employees were given a five day limit in which to join the Union; and that they were going to have to pay money to obtain representation. Page, as the record revealed, is a full-time business representative who also acted as a negotiator for the present collective bargaining agreement. Page's own testimony and the testimony of others indicated a degree of assertiveness in ordering Smith from the January 21 meeting and in seeking overtime for the four employees. Thus, if the Union had no obligation initially to assist these employees, Page undertook the obligation to represent them. In assuming this obligation, the Union assumed the concurrent obligation not to act in an arbitrary or discriminatory way. Certainly Page was interested in obtaining and maintaining union membership for as she states, the Union "strives" on membership. The conclusion is inescapable that Page used this opportunity to seek to obtain additional membership for the Union. Therefore, full credit must be given to the employees accounts, fragmented as they are, that Page indeed solicited their membership before the Union would assist them in this matter. Page's credibility is further strained by the action of chief steward Mata who later refused to process the Paige grievance because the employees were not Union members. Mata's refusal because they had not joined the Union leaves little doubt about the Union's motivation here. In all the circumstances, the only reasonable inference to be drawn is that Page actively sought out Union membership in exchange for assisting these employees, and when they refused to join the Union halted any action by it on the reduction-in-force until after an unfair labor practice charge was filed. Accordingly, it is found that the General Counsel established by a preponderance of the evidence that Page's attempt to require these employees to join the Union in order to obtain Union assistance with their reduction-in-force was discriminatory and in violation of section 7116(b)(1) and (8) of the Statute. With respect to the Mata incident, the credited corroborated evidence is that the grievance filed by Paige was rejected by the Union and returned to Paige for one reason, that these employees were not Union members. It is settled law that a union need not process a frivolous grievance. Vaca v. Sipes, supra. Finding a violation turns not on the merits of the grievance, but rather on whether the Union's disposition of the grievance was perfunctory or motivated by ill will or other invidious considerations. A deliberate and unjustifiable refusal to process a grievance for discriminatory reasons constitutes a violation of the Statute. While the Union argues in mitigation that it was engaged in investigation and made proposals concerning the reduction-in-force, its investigation of the matter and attempts to negotiate appear rather cursory prior to the filing of the instant unfair labor practice charge. Indeed, a labyrinth of regulations concerning reduction-in-force, pay and grade retention exist. See, 5 C.F.R. 351, et al. Although the matter was complicated, it apparently was not impossible to solve as Union efforts after the unfair labor practice was filed clearly show. Thus, the Union, if it handled the matter at all gave only a superficial effort and without question rejected the grievance because these employees were not members. An escalation of its handling of the matter after the unfair labor practice was filed does not alter the fact that the grievance was initially rejected for membership reasons. Furthermore, there is no evidence that its attempts to resolve the matter were ever conveyed to any of the affected employees, and they were left with the impression that the only reason that their grievance was not processed was because they were not Union members. Such action by an exclusive representative in requiring membership in order to accept and process a grievance of an employee in a unit which it represents is discriminatory and interferes with, restrains and coerces employees in violation of section 7116(b)(1) and (8) of the Statute. With respect to the independent allegation that the Union unlawfully solicited membership during work time, the Union does not deny that its agents may have engaged in impermissible solicitations, but contends only that, if so, the conduct was negligent and unintentional rather than deliberate. It does, however, question whether the employees herein were in duty status. The record disclosed that while two employees had clocked out, two others were still on the clock and working, and that they were indeed paid overtime at the Union's request for participation in the meetings. The General Counsel contends that section 7131(b)(7) precludes the use of official time by a union for conducting internal union business such as soliciting of membership. There is ample record evidence, as noted above, to show that at least two of the affected employees were not in a "non-duty" status since they were still on the clock and were subsequently paid by the Activity for the time spent at the meeting. In such circumstances, solicitation of these employees for Union membership is prohibited by the Statute. Accordingly, it is found that the Union's conduct in soliciting membership from employees in duty status is prohibited by section 7131(b) and in violation of section 7116(b)(1) and (8) of the Statute. The Remedy Having found that the Union did engage in conduct violative of section 7116(b)(1) and (8) of the Statute it is recommended that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Statute. The question of back pay for breach of the duty of fair representation by a union has never been considered by the Authority. There is no doubt that the Authority is empowered under section 7105(g)(3) and 7118(a)(7) of the Statute to fashion such a remedy where warranted. The General Counsel argues that the egregious conduct engaged in by the Union warrants a remedy requiring that the affected employees be made whole for any pay lost as a result of the reduction-in-force action, from the date of the reduction-in-force implementation to the date the Union secures consideration of the grievance filed by those employees, or that the employees affected obtain the position they would have obtained had there been no violation by the Union. I disagree that such a remedy is appropriate in this particular matter. The Supreme Court set out the basic principle for apportionment of damages for breach of fair representation in Vaca v. Sipes, supra, as follows: The governing principle then is to apportion liability between the employer and the Union according to the damage caused by the fault of each. Thus, damages attributable solely to the employer's breach of contract should not be charged to the Union, but increases if any in those damages caused by the Union's refusal to process the grievance should not be charged to the employer. Thus, where there is a breach of fair representation, only the liability for any intervening wage loss or losses which are not the result of an employer's discrimination or breach would fall upon the union. In proposing such a remedy the General Counsel no doubt seeks to discourage illegal distinctions between members and non-members, but ignores a basic formula running through all breach of fair representation questions, that in order to establish legal damages, it must be shown that the employee initially suffered from an improper action from an employer's breach and that the Union could have secured some relief. Even there, as here, a deliberate and unjustifiable refusal to process a grievance is found, there remains a question of entitlement, since damages are generally not warranted except where they are to compensate for injury suffered. This record does not establish the foregoing. Contrary to the General Counsel's theory which assumes that the matter grieved is meritorious, it is my view, that there must be a substantial reason to believe that the Union's breach of its duty contributed to any loss which is compensable. Assignment of fault for liability prior to a determination of record that any liability exists has several flaws. First, any damages for which the Union might be responsible might well be de minimis. Secondly, there is no indemnification for the Union, if after processing the grievance it found to lack merit. Further, federal sector labor policy would not be served by requiring a union to pay damages where the employee would not be able to obtain the substantive relief sought by his or her grievance or appeal. /8/ And, finally the Union's action herein did not prevent these employees from either filing or pursuing a grievance or statutory appeal, on their own, in a timely manner. The instant record offers no clear and convincing evidence that a grievance or appeal would have been successful or would have resulted in any of these employees retaining pay or equivalent positions at their level prior to the reduction-in-force. /9/ If anything, the record establishes that the servicing of cars and collecting cash, performed by these employees in the higher classification was no longer required in the automated station. Under such circumstances, they may well not have been entitled to retained pay or grade. Thus, the weight of the evidence does not indicate that intervention by the Union would have resulted in the substantive relief sought by the grievant Paige, i.e., same pay for same work, since the work appears from the record to be at a lower classification and somewhat different. Nor does the evidence indicate that negotiations with the Activity would have resulted in a satisfactory resolution for these employees. If, however, negotiations would satisfy its obligation, the Union contacted the Activity in early January before the unfair labor practice charge was filed and sought negotiations, but was rebuffed. Furthermore, as Respondent's uncontroverted testimony disclosed, these employees, who are non-appropriated fund employees, could well not be covered by any grievance or appeal procedures which would require retention of pay or grade in a reduction-in-force. For the Authority to grant such a remedy without that determination having been made would be purely speculative. Here the record establishes only that employees at the automated station, after the reorganization, performed lesser work which may or may not have required a reduction in pay and grade. It does not reveal, nor is it alleged, that there was either discriminatory treatment of these employees by the Activity during the reorganization or that there was any mistake in the reduction-in-force. Such an issue should be resolved either through the grievance machinery or through the statutory appeals procedure, each of which the Union argues is unavailable. To order back pay prior to that determination would be punitive. Another difficulty with the General Counsel's proposed remedy, is that it overlooks potential liability of the Agency concerning whether or not the reduction-in-force was discriminatorily or mistakenly conducted. The record does not reveal nor is it suggested by the parties that the reduction-in-force was defective. If not, there is no liability for damages since the fundamental purpose of such a remedy is to compensate for injuries suffered as a result of a breach by the employing agency and for whatever other losses these employees may have suffered as a result of Union discrimination in failing to pursue the grievance. It must be recognized that the decision to reorganize and to perform the reduction-in-force was exclusively within the province of management and that the Union on its own can neither reinstate these four employees nor, since all time limits have expired, grieve or appeal the matter unless the Activity or the government agency assigned to police the matter now agrees to accept a grievance or appeal. Notwithstanding the Union's wrongful conduct, the fact remains that any compensable injury for which liability initially exists, would have to result from discrimination or a mistake attributable to the employer's conduct, not the Union. Therefore, a determination of what injury was suffered must be made before the Union can be ordered to make any payment of damages to these employees. In this regard, cases such as Vaca v. Sipes, supra; Bowen v. United States Postal Service, et al., 103 S.Ct. 588 (1983); Czosek v. O'Mara, 397 U.S. 25 (1970); Harrison v. Chrysler Corp., 558 F.2d 1273, 1279 (1977), all agree that the Union is responsible not for damages solely attributable to an employer's breach, but only for increases in damages caused by its own breach. Such damages include legal fees and intervening wage losses. This record shows neither. The net result of the General Counsel's proposed remedy then would be to require no determination of that liability, but require payment of damages by the Union before any determination of liability has been made regardless of whether there is a compensable injury. Such a result is incongruous with the general principle that the Union is responsible only for damages caused by its own breach since no damages have been shown. The Union alleges that this matter was not subject to the parties' grievance machinery or to a statutory appeals procedures due to the status of these non-appropriated fund employees. Indeed, a maze of regulations exist concerning reductions in force and pay and grade retention. In taking such a position it shows a bias or predetermination which would bar it from further effectively processing the matter, even if all time limitations had not expired. The legislative history of the Statute indicates Congress' intent to include reduction-in-force coverage under the negotiated grievance procedure, absent the parties' exclusion of such coverage. See Legislative History of Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, p. 730, 735, 769, November 19, 1979. Contrary to the Union's position that these employees were covered neither by the negotiated procedure or a statutory appeals procedure, it is found that whether the Activity's action was a reorganization or reclassification was indeed an area which might have been considered under the negotiated procedure, and the Union's refusal once a grievance was filed undermined any opportunity for resolution through that machinery. Under the Union's theory that there is no statutory appeal procedure or grievance available, these employees have no protection against a discriminatory or mistaken reduction-in-force. As business representative Page testified, the grievance procedure was available for any employee dissatisfaction. Since the grievance machinery does not preclude grievances concerning reorganizations, it is found that the Union could have, at the very least, attempted to process the grievance through the procedures agreed to by the parties. Here the facts are sufficient to establish discrimination by the Union which seriously undermined any effort by these employees to successfully pursue the grievance or appeal, either on their own or with Union assistance. /10/ The remaining question is, what relief is available, if any, for these employee's claim that they have failed to secure any relief. Having answered that their problem might well have been resolved, if not remedied favorably to them, through the negotiated grievance machinery, and that the matter might have been considered under that machinery, it is recommended that the Authority, under the broad remedial discretion of section 7118(a)(7)(D), order, in addition to a cease and desist order and notice posting, that the Union provide, at its expense legal representation, of the employee's choice, to assist them in seeking to obtain waivers of time limits, both under the negotiated grievance machinery and the statutory appeals procedure, if necessary, so that they might process a grievance or appeal relating to the March 31, 1981 reduction-in-force, and to provide further services which would have been performed by the Union in assisting these employees in the reduction-in-force matter, had it not acted discriminatorily in refusing to assist in the reduction-in-force or to process the Paige grievance. Finally, it is recommended that the Authority retain jurisdiction over this matter in order to reconsider the remedy and provide further appropriate remedial provisions should they become necessary. Based on the foregoing, it is recommended that the Authority adopt the following: /11/ ORDER Pursuant to section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section 2423.29(b)(1), the Authority hereby orders that Service Employees International Union, Local 556, AFL-CIO, shall: 1. Cease and desist from: (a) Conditioning representation under the parties' collective bargaining agreement of non-members on their joining the Service Employees International Union, Local 556, AFL-CIO. (b) Telling employees in the bargaining unit that it will not process grievances pursuant to the contractual grievance procedure because of their nonmembership in the Union. (c) Refusing to process grievances of bargaining unit employees because they are not members of Service Employees International Union, Local 556, AFL-CIO. (d) Soliciting employees to join the Union while those employees are on duty status. (e) In any like or related manner, interfering with, restraining, or coercing any employee in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Statute: (a) Advise all employees in the bargaining unit that the Service Employees International Union, Local 556, AFL-CIO, will represent the interests of all employees in the unit without discrimination and without regard to labor organization membership. (b) Upon request, provide employees Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu with a legal representative of their own choosing at the Union's expense, to allow them to seek a waiver of time limits either under the grievance machinery or a statutory appeals procedure so they might seek to process their grievance or file a statutory appeal and to provide further services which would have been provided by the Union had it not acted discriminatorily. (c) Post at the Activity, Navy Exchange, Pearl, United States Naval Base, Pearl Harbor, Hawaii, 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 Union and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices are customarily posted. Reasonable steps shall be taken by the Union to ensure that such notices are not altered, defaced, or covered by any other material. (d) Pursuant to 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region 8, 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. ELI NASH, JR. Administrative Law Judge Dated: February 28, 1983 Washington, D.C. APPENDIX 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT condition representation on nonmembers on their joining the Service Employees International Union, Local 556, AFL-CIO. WE WILL NOT tell employees in the bargaining unit that the Service employees International Union, Local 556, AFL-CIO will not process grievances pursuant to the contractual grievance procedure because of their nonmembership in the Union. WE WILL NOT solicit employees to join Service Employees International Union, Local 556, AFL-CIO while on duty status. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employees in the exercise of the rights guaranteed by the Federal Service Labor-Management Relations Statute. WE WILL NOT refuse to process grievances of bargaining unit employees because they are not members of Service Employees International Union, Local 556, AFL-CIO. WE WILL advise all employees in the bargaining unit that Service Employees International Union, Local 556, AFL-CIO, will represent the interests of all employees in the unit without discrimination and without regard to labor organization membership. WE WILL, upon request, provide employees Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu with a legal representative of their own choosing, at the Union's expense, in order to allow them to seek waiver of time limits either to process the grievance or under a statutory appeals procedure and to provide them whatever services the Union would have provided in this matter had it not acted discriminatorily. (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 of the Federal Labor Relations Authority, Region 8, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California, 90071, and whose telephone number is: (213) 798-3805. --------------- FOOTNOTES$ --------------- /1/ Section 7131(b) provides: Sec. 7131. Official time . . . . (b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership . . .) shall be performed during the time the employee is in a nonduty status. /2/ See American Federation of Government Employees, Local 1778, AFL-CIO, 10 FLRA 346, 351 (1982); American Federation of Government Employees, AFL-CIO, Local 2633 and Veterans , Administration, Regional Office, Cleveland, Ohio, 2 FLRA 4, 8 (1979). /3/ Article 19, of the Collective Bargaining Agreement, Reduction In Force states, in pertinent part: Section 1. This Article pertains only to regular employees. Reduction in force shall be defined as an action taken by Management to increase the efficiency, economy, or effectiveness of operations, causing the release of an employee through either separation, demotion, furlough for more than thirty (30) days, or reassignment requiring displacement. Reduction in force also occurs when the release of an employee is required due to lack of work or funds, reorganization, reclassification due to change in duties, or the need to make a place for a person exercising reemployment or restoration rights, within the Navy Exchange, Pearl Harbor. Section 2. The Employer agrees that prior to giving Unit members official notice of a proposed reduction in force, the Union will be notified in advance of the proposed effective date, the number of employees involved, and the types of positions to be affected. The Union shall be provided an opportunity to express its views and offer suggestions regarding the proposed implementation. The Union agrees to render assistance in communicating the reason(s) for the reduction in force to members of the Unit who may be affected. The Union will have the opportunity to be present at all formal meetings held for the purpose of issuing reduction-in-force notices. /4/ Page is a full-time business representative with two years experience in that position. Page also participated as a union negotiator and signed the present collective bargaining agreement between the parties. /5/ The parties collective bargaining agreement in Article 28, Grievance Procedures, contains several pertinent provisions concerning entitlement to representation, including: Section 2 C.(2). Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. Section 3. Complaints over the following shall not be processed under this procedure. (e) The classification of any position. Section 5. Appeal and Grievance Options. An aggrieved employee affected by discrimination may choose to raise the matter under either a statutory appellate procedure or the negotiated grievance procedure, but not both. Section 7. An employee or a group of employees may present grievances to appropriate management officials and have them adjusted without the intervention of the exclusive representative. . . . And, the following concerning processing of a grievance: Section 11. Step 1. The employee shall first submit the grievance, in writing . . . within ten (10) calendar days after the alleged violation. . . . The appropriate level of Union representation at Step 1 shall be the designated Shop Steward. . . . The Department Manager shall issue a written decision to the employee not later than ten (10) calendar days after the receipt of the grievance. . . . /6/ With regard to this obligation, the United States Code might well support this position. It states: 5 U.S.C. 5342(a)(2)(B) defines prevailing rate as: an employee of a nonappropriated fund instrumentality described by section 2105(c) of this title who is employed in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement. . . 5 U.S.C. 2105(c) states that nonappropriated fund employees are not employees for the purpose of (1) laws (other than subchapter IV of Chapter 53 and sections 5550 and 7154 of this title) administered by the Office of Personnel Management. /7/ Section 7131(b) of the Statute provides: Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status. /8/ The Federal Labor Relations Council, found in Department of the Interior, Bureau of Reclamation, Yuma Project Office, Yuma, Arizona, FLRC No. 74A-52, that the jurisdiction over certain employees appeals, particularly a reduction-in-force involved in that case, fell within the jurisdiction of the Civil Service Commission and the determination of whether employees were entitled to back pay was for exclusive determination by the appeals procedure under section 19(d) of the Executive Order and not the Assistant Secretary. The Council held that an unfair labor practice complaint may not be used as an alternative method for obtaining redress for the employees who properly have access to the appeals procedure. There the Council's rejection seemingly is based not on any reluctance to remedy the alleged violations, but instead on finding itself without authority to grant such a remedy. The Yuma case, however, does not preclude the Authority from granting a back pay remedy here. The Statute, unlike the Executive Order contains broad discretionary language for remedying unfair labor practices including section 7117(a)(7)(D) which includes broad authority to take "such other action as will carry out the purposes of this chapter". Thus, the Authority is clearly vested with discretion to grant any reasonable remedy where it deems such a remedy would effectuate the purposes of the Statute. /9/ The private sector cases cited by the General Counsel are inapposite. Those cases involve matters where the employer plainly disregarded clear-cut contract provisions without objection from the exclusive representative and the employees were clearly entitled to make whole remedies. The General Counsel maintains that uncertainty as to the potential merit of the grievance should be resolved in favor of the victims, not the wrongdoer, since it is the Union's wrongdoing that created the uncertainty. This argument overlooks the fact that in this case there may well be no wrongdoing for which compensation is due, since there is a real question as to whether these employees are entitled under government regulations to retain pay and grade. Further, it overlooks a crucial element, that the reduction-in-force involved here was never challenged as discriminatory or mistaken. Moreover, while the National Labor Relations Board adopts the position that fault must be assumed, it is not universally accepted. See, N.L.R.B. v. Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO Automative Plating Co. 454 F.2d 17 (2d Cir.) where the Court found such a remedy speculative and punitive. Compare Truck Drivers, OCL Drivers, Local 705, 209 NLRB 292 (1974). /10/ Although the Agency was not charged in this matter, it occurs that it was at equal fault here in not advising these employees as to exactly what their appeal rights were in this reduction-in-force. The record reveals several opportunities for such action by the Activity, including an opportunity to accept and process the initial grievance on January 23, 1981 without Union intervention. The Activity must bear some of the burden herein since its erroneous actions and advice at least contributed to these employees not having a grievance processed to resolution, whether satisfactory or unsatisfactory to them. /11/ Based on the above, it is unnecessary to decide whether the Union's liability should be limited, as argued at the hearing. Assuming that a back pay remedy is appropriate however, I agree with the General Counsel that the reschedulings of the matter for hearing were not objected to by the Union nor was it alleged that these reschedulings were in any way improper or that they would create a hardship for the Union. In such circumstances, it is difficult to envision that the reschedulings had any connection with limiting the Union's back pay liability in this matter.