18:0005(2)CO - AFGE Local 916 and DOD, Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK -- 1985 FLRAdec CO
[ v18 p5 ]
18:0005(2)CO
The decision of the Authority follows:
18 FLRA No. 2
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Respondent
and
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
Charging Party
Case No. 6-CO-20008
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. The Respondent filed exceptions with respect 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 recommended Order. /1/ At issue
herein is the Respondent's policy of refusing to provide representation
for non-members in proceedings before the Merit Systems Protection Board
while providing such representation for members. As the Authority
recently noted, "when an exclusive representative decides to represent
unit employees in any matter which affects their conditions of
employment, it has the duty under section 7114 of the Statute to
represent unit employees fairly, and may not discriminate with regard to
that representation on the basis of union membership." American
Federation of Government Employees, AFL-CIO, 17 FLRA No. 72 (1985). See
also National Treasury Employees Union and National Treasury Employees
Union Chapter 121, 16 FLRA No. 102 (1984), petition for review filed sub
nom. National Treasury Employees Union v. FLRA, No. 85-1053 (D.C. Cir.,
Jan. 25, 1985); and National Treasury Employees Union, 10 FLRA 519
(1982), aff'd, 721 F.2d 1402 (D.C. Cir. 1983) (encompassed within the
union's duty under section 7114(a)(1) is the furnishing of the services
of an attorney on a non-discriminatory basis in removal actions, both
within the Agency procedures as well as before the Merit Systems
Protection Board).
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 American Federation of Government Employees, AFL-CIO, Local
916, shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in its unit of exclusive recognition solely on the basis of
whether such employees are members of the American Federation of
Government Employees, AFL-CIO, Local 916.
(b) Interfering with, restraining, or coercing unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the American Federation of Government Employees,
AFL-CIO, Local 916, 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) Publish in its newspaper, "916 Union Express," a statement
informing all members of the bargaining unit that its prior published
statement that only Union members could avail themselves of
representation by the Union in statutory appeals proceedings, is hereby
withdrawn and rescinded and inform all unit employees that it will
represent all bargaining unit employees in statutory appeals proceedings
without regard to labor organization membership.
(b) Represent all employees in its unit of exclusive recognition
without discrimination and without regard to membership in the American
Federation of Government Employees, AFL-CIO, Local 916.
(c) Post at its business office and its normal meeting places, and
all places where notices to its members and employees of the United
States Department of Defense, Department of the Air Force, Oklahoma City
Air Logistics Center, Tinker Air Force Base, Oklahoma, 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 American Federation of Government
Employees, Local 916, or a designee, and shall be posted and maintained
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members and other employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by any other material.
(d) Submit appropriate signed copies of such Notices to the United
States Department of Defense, Department of the Air Force, Oklahoma City
Air Logistics Center, Tinker Air Force Base, Oklahoma, for posting in
conspicuous places where the unit employees are located, where they
shall be maintained for a period of 60 consecutive days from the date of
posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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 14, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS OF 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 our unit of exclusive recognition solely on the basis of
whether such employees are members of the American Federation of
Government Employees, AFL-CIO, Local 916.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the American Federation of Government Employees,
AFL-CIO, Local 916, 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 publish in our newspaper, "916 Union Express," a statement
informing all members of the bargaining unit that our prior published
statement that only Union members could avail themselves of
representation by the Union in statutory appeals proceedings, is hereby
withdrawn and rescinded and we will inform all unit employees that we
will represent all bargaining unit employees in statutory appeals
proceedings without regard to labor organization membership.
WE WILL represent all employees in our unit of exclusive recognition
without discrimination and without regard to membership in the American
Federation of Government Employees, AFL-CIO, Local 916.
(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 any of its provisions, they may communicate directly with the
Regional Director for the Federal Labor Relations Authority, Region VI,
whose address is: Federal Office Building, 525 Griffin Street, Suite
926, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Steven M. Angel, Esquire
For the Respondent
Elizabeth A. Martinez, Esquire
For the General Counsel
Lt. Colonel Jerry M. Brasel
For the Charging Party
Before: WILLIAM B. DEVANEY, Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /2/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns Respondent's policy of refusing to
provide representation for non-members of Respondent in proceedings
before the Merit Systems Protection Board whereas Respondent provides
representation for its members in Merit Systems Protection Board
proceedings. Such policy is alleged to be in violation of Sec. 16(b)(1)
of the Statute.
This case was initiated by a charge filed on November 20, 1981 (G.C.
Exh. 1(a) which alleged violation of Secs. 16(b)(1) and (8) of the
Statute. The Complaint and Notice of Hearing issued on November 30,
1981 (G.C. Exh. 1(d); alleged a violation only of Sec. 16(b)(1); set
the hearing for February 17, 1983, at a time and place to be determined;
and by Order dated January 28, 1983 (G.C. Exh. 1(b)), the time and
place of hearing was fixed, pursuant to which a hearing was duly held on
February 17, 1983, in Oklahoma City, Oklahoma, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issue involved, were afforded
opportunity to present oral argument and Counsel for the General Counsel
and for Respondent presented oral argument. At the close of the
hearing, March 17, 1983, was fixed as the date for mailing post-hearing
briefs and Respondent timely mailed an excellent brief, received on
February 21, 1983, which has been carefully considered together with the
closing arguments. Upon the basis of the entire record, I make the
following findings and conclusions:
FINDINGS
1. American Federation of Government Employees, AFL-CIO, Local 916
(hereinafter referred to as "Respondent") in 1964 was recognized as the
exclusive representative of all civilian employees served by the
Civilian Personnel Office working at Tinker Air Force Base and Oklahoma
City Air Force Station, (hereinafter, also, referred to as the
"Activity"), with certain exclusions more fully set forth in paragraph
5(a) of the Complaint. On January 13, 1978, this unit was consolidated
into a national unit, in Case No. 53-10177(UC), including all
non-supervisory, non-professional employees at various Air Force
Logistics Command Facilities, including Tinker Air Force Base, paid from
appropriated funds and who are serviced by Air Force Logistics Command
Civilian Personnel Offices, again with certain exclusions more fully set
forth in paragraph 5(b) of the Complaint. In 1976, Respondent and the
Activity executed a collective bargaining agreement effective until July
21, 1979. On, or about, April 3, 1979, Air Force Logistics Command and
the national office American Federation of Government Employees, AFL-CIO
(hereinafter referred to as "AFGE") executed a collective bargaining
agreement covering the consolidated unit. Respondent, at all times
material, has been, and is, the agent of AFGE for purposes of
representation of employees, collective bargaining and administration of
the collective bargaining agreement of April 3, 1979.
2. In September, 1981, Respondent published in its newspaper, "916
Union Express," an article which described how a paid union
representative had won an employee's reinstatement in a Merit Systems
Protection Board case. As part of this article, Respondent stated that
only members could avail themselves of this service-- specifically, that
" . . . only Union members can avail themselves of this service of
representation by the Union . . . ." (Jt. Exh. 1(b)).
3. Mr. James Holloway, President of Respondent, testified that that
article reflected the policy of Respondent, ". . . that in the area of
appeals to the Merit Systems Protection Board the Union's policy is that
only members can avail themselves of representation by the Union" (Tr.
16) and Mr. Holloway stated that this is still the policy of Respondent
(Tr. 16). Mr. Holloway further stated that:
"Appeals to the MSPB, EEO, proceedings under the Statute,
matters-- I guess the best way to sum it up is matters which we
feel are outside our duty to represent under our contract." (Tr.
18)
. . . .
"Q. . . . you said that earlier your policy was that you don't
represent non-members in statutory proceedings, and you say that
EEO--
"A. That's the policy.
"Q. -- is a statutory proceeding.
"A. That's the policy." (Tr. 19)
However, Mr. Holloway stated that while this was, and is, the policy, ".
. . in practical effect, I know of no instance where we actually failed
to represent anyone who asked for it." (Tr. 19).
4. Mr. Holloway explained that this policy applies only at the point
of election to pursue a statutory appeal procedure; that Respondent
will assist anyone who asks for assistance in responding to the proposed
notice of suspension and no distinction is made between members and
non-members (Tr. 21); that after the response, management makes a
decision whether to suspend or to take disciplinary action and if the
discipline is removal or suspension for more than 14 days, the employee
has the option of pursuing an appeal under the negotiated grievance
procedure or of appealing to the Merit Systems Protection Board (Tr.
21-22); that if a non-member elects to proceed under the grievance
procedure, Respondent represents that employee as it would a member (Tr.
22); but if he elects the statutory appeal route (here, specifically,
MSPB), " . . . the Union's policy is that only members can avail
themselves of representation by the Union." (Tr. 16).
5. Although stewards have on occasion represented employees before
MSPB (Tr. 33, 34) and received official time (Tr. 34), as provided by
Article 4 of the current master agreement (Jt. Exh. 2, Tr. 36) and as
had been provided in the prior local agreement (Tr. 36), Respondent has
three staff representatives, who are full-time staff employees, and,
normally, one of these staff representatives is appointed to handle
statutory appeals (Tr. 32-33). Respondent's staff representatives,
because they are not currently employed by the Activity, do not, of
course, receive official time.
6. Respondent's newspaper, the "916 Union Express" is mailed to
members and other interested parties (Tr. 14) and, in addition, is
distributed on Tinker Air Force Base to employees (Tr. 14-15) and is
placed in newsstands, provided by the Activity (Jt. Exh. 3), located
throughout the base. (Tr. 15).
7. Respondent represents between 13,000 and 14,000 members of the
bargaining unit of whom approximately 2,500 are union members (Tr. 14).
CONCLUSIONS
Respondent's position, as stated in its brief, is:
" . . . It is the position of the Union that the duty of fair
representation is coextensive with those rights which arise from
the status as exclusive representative. Thus, the Union
recognizes, and embraces, it's (sic) responsibilities to represent
non-members in matters arising from the collective bargaining
relationship. However, it is submitted that the Union enjoys no
special status once an employee has elected to process a statutory
appeal. Accordingly, the Union shoulders no responsibility in
representing employees in such procedures.
"In short, the requirements of the duty of fair representation
are not unlimited. It is suggested that the boundaries of this
duty are those boundaries established by the rights afforded the
exclusive representative because of its' status as such."
(Respondent Brief, Argument, pages unnumbered).
Respondent cites and relies upon Professional Air Traffic Controllers
Organization (PATCO-MEBA), Indianapolis, Indiana Air Route Traffic
Control Center, A/SLMR No. 442, 4 A/SLMR 703 (1974) (hereinafter
referred to as the "PATCO" case or decision); United States Department
of the Navy, Naval Ordnance Station, Louisville, Kentucky, FLRC No.
75A-54, 3 FLRC 686, A/SLMR No. 588, 5 A/SLMR 725 (1975) (hereinafter
referred to as the "Naval Ordnance Station" case or decision); Internal
Revenue Service, Western Region, San Francisco, California, 9 FLRA No.
57, 9 FLRA 480 (1982) (hereinafter referred to as the "Western Region"
case or decision); and the post-enactment statement of Congressman
Ford, /3/ included in the Legislative History of the Federal Service
Labor-Management Relations Statute, Title VII of the Civil Service
Reform Act of 1978, Subcommittee on Postal Personnel and Modernization
of the Committee on Post Office and Civil Service, House of
Representatives, 96th Cong., 1st Sess., Committee Print No. 96-7
(hereinafter referred to as "Legislative History"), at pages 797-998
(from 124 Cong. Rec. H 13609, daily ed. October 14, 1978) in support of
its stated position. For reasons more fully set forth hereinafter, I do
not agree with Respondent's position and do not find that the
authorities cited and relied upon by Respondent support its position.
The PATCO case, supra, concerned the allegation that the labor
organization, PATCO, violated Section 19(b)(1) of Executive Order 11491,
as amended, by refusing Complainant participation in a reduced air fare
program, and by informing him that membership in PATCO was a
prerequisite for participation in the program. The Assistant Secretary
stated, in part, as follows:
"In agreement with the Administrative Law Judge, I find that
dismissal of the instant complaint is warranted based on the view
that the evidence herein establishes merely that the reduced air
fare program was an incident of membership in the Respondent labor
organization. Thus, in my view, the evidence fails to establish
that the Respondent acted inconsistent with its obligation under
Section 10(e) of the Order to represent the interests of all
employees in the unit without discrimination and without regard to
labor organization membership inasmuch as it was not established
by the Complainant that, by virtue of Article XV of its negotiated
agreement with the Federal Aviation Administration (FAA), the
Respondent obtained a term and condition of employment applicable
only to members of the Respondent and their immediate families.
Rather, as found by the Administrative Law Judge, the evidence
adduced reveals that the Respondent merely obtained FAA's
acknowledgment that it would not oppose the former's efforts to
obtain for its members a reduced or free air fare arrangement or
consider the taking advantage of reduced air fares to be in
violation of its code of ethics." (4 A/SLMR at 704).
Judge Arrigo had further stated, in part, as follows:
". . . The employer does not bestow or provide any benefit to
union members or indirectly assist P.A.T.C.O. in this endeavor but
essentially states in the article (15) that it has no objection if
P.A.T.C.O. wishes to seek such beneficial treatment from third
parties. (footnote omitted.) The benefit therefore, if obtained,
is not in any sense derived from the employer. On the facts . . .
I do not find that the reduced air fare program is a condition of
employment . . . .
"While this issue is one of first impression under the Order,
similar issues arising in the private sector . . . have been
decided based on the distinction between an incident of membership
and a condition of employment and the legal consequences that flow
therefrom . . . ." (4 A/SLMR at 707).
I fully agree with the distinction, as noted by Judge Arrigo, between an
incident of membership and a condition of employment and the legal
consequences that flow therefrom; but representation of bargaining unit
members in statutory proceedings is not an incident of membership.
The Naval Ordnance Station case, supra, arose from the activity's
refusal to recognize a union steward as the representative of a unit
employee who had not designated the steward as his representative as
required by applicable Navy Regulations and by the notice of proposed
removal. The Assistant Secretary had held that the exclusive
representative had an obligation under Section 10(e) of the Order to
represent the employee until such time as he indicated his desire to
choose his own representative and that the activity's failure to
recognize the steward as the representative of the employee violated
Section 16(a)(1) and (6) of the Order. The Council reversed, stating,
in part, as follows:
" . . . the second sentence of section 10(e) (It (the exclusive
representative) is responsible for representing the interests of
all employees in the unit without discrimination and without
regard to labor organization membership . . . ) does not impose an
affirmative duty on the exclusive representative to act for unit
employees whenever it is empowered to do so under the Order, but
only prescribes the manner in which the exclusive representative
must provide its services to unit employees when acting within its
scope of authority established by other provisions of the Order.
"In conclusion, with respect to the first issue raised, section
10(e) of the Order does not impose upon a labor organization
holding exclusive recognition an obligation to represent a
bargaining unit employee in an adverse action proceeding until
such time as the employee indicates a desire to choose his own
representative. /4/
" . . . the first sentence of section 10(e) (When a labor
organization has been accorded exclusive recognition, it is the
exclusive representative of employees in the unit and is entitled
to act for an to negotiate agreements covering all employees in
the unit.) which empowers an exclusive representative to act for
all unit employees . . . also authorizes it to act for or on
behalf of an individual unit employee. However, . . . the
exclusive representative's right to act for or represent an
individual unit employee, as distinguished from its right to act
for all unit employees, is not without limitation. That is, while
a labor organization may on its own initiative act on behalf of a
unit employee pursuant to its authority under contract or the
Order, such a right is not inherent where, as here, it concerns an
employee's adverse action proceeding, which is a procedure
established pursuant to law and regulation rather than by
agreement or the Order. Such matters, which are fundamentally
personal to the individual and only remotely related to the rights
of the other unit employees, are not automatically within the
scope of the exclusive representative's 10(e) rights, which are
protected by the Order . . . .
"In the instant case the Union had no contractual right to act
upon its own initiative and attempt to serve as the employee's
representative in an adverse action proceeding. (Footnote
omitted.) Moreover, as found by the Assistant Secretary, the
individual employee had not selected the union as his
representative and so advised agency management." (3 FLRC at
691-692).
While clearly the Council held that an exclusive representative has no
obligation under the Order to represent unit employees in an adverse
action proceeding, the Council did not have before it, nor did it
address, the labor organization's duty of representation of non-members
of the union in adverse action proceedings if it undertakes such
representation on behalf of members of the union. I find nothing in the
Council's decision in Naval Ordnance Station that supports Respondent's
position, indeed, the inference is to the contrary. Thus, the Council,
inter alia, specifically stated that, "Such matters . . . are not
automatically within the scope of the exclusive representative's 10(e)
rights . . . " and specifically noted that, " . . . the individual
employee had not selected the union as his representative and so advised
agency management."
The Western Region case, supra, involved a request for information.
Judge Naimark held, and the Authority adopted his conclusion, that the
union was entitled to the information requested in order to enable it to
properly represent a unit employee at an oral hearing prior to
management's consideration of a proposed adverse action and that the
complaint was not barred by Sec. 16(d) of the Statute. Respondent here
points to Judge Naimark's statement that,
" . . . The Union, as bargaining representative, would have had
no standing qua Union before the appeals body. /5/
In the Western Region case, the same assistant counsel for NTEU
represented the employee, Rodriguez, in the MSPB proceeding as had
represented the employee at the oral hearing. I quite agree with
Respondent that representation of the employee before MSPB was as his
personal representative; but it simply does not follow, as Respondent
asserts, that, if the union has no rights as exclusive representative in
an appeals procedure, it has no duty under Sec. 14(a)(1) of the Statute.
/6/ If it provides representation to unit employees in appeals
proceedings, it must do so without discrimination and without regard to
labor organization membership.
The portion of Congressman Ford's post-enactment statement relied
upon by Respondent is as follows:
"The labor organization is required to meet a duty of fair
representation for all employees, even if not dues-paying members,
who use the negotiated grievance procedure. The costs involved in
the procedure, which may well involve arbitration, are high.
Although, the basic House approach of stating in the statute the
scope of the procedure was followed, the conferees also adopted a
provision (Sec. 21(a)(2)) aimed solely at allowing the exclusive
representative, at its option, to propose and agree to a reduced
coverage for the negotiated grievance procedure-- perhaps for
financial reasons . . . ." (Legislative History, pp. 997-998).
Sec. 21(a)(2) of the Statute provides that, "Any collective bargaining
agreement may exclude any matter from the application of the grievance
procedures which are provided for in the agreement", and I am aware that
some agreements do provide that matters subject to a statutory appeals
procedure to the MSPB are excluded from arbitration under the negotiated
grievance procedure; but, even accepting Congressman Ford's statement
that reduced coverage of a negotiated grievance procedure does not
affect the duty imposed by Sec. 14(a)(1) of the Statute and, while an
exclusive representative may reduce its obligation to provide
representation, if it, nevertheless, undertakes representation of unit
employees in statutory appeals proceedings it must represent the
interests of all employees in the unit it represents "without
discrimination and without regard to labor organization membership."
Although not cited by Respondent, I have given long and careful
consideration to Judge Sternburg's decision, in American Federation of
Government Employees, AFL-CIO and Social Security Administration, Case
No. 3-CO-20003 (OALJ-82-131, dated September 16, 1982), (hereinafter
also, referred to as the "Social Security" case) in which he held that
charging different, or higher, contingent fees for non-union employees
than for union members in a civil class action by a private attorney
paid a retainer by the union did not violate Secs. 16(b)(1) or (8) of
the Statute. Factually, that case is distinguishable. There, a
question had arisen as to whether Social Security was paying the proper
night differential to unit employees working overtime. Upon discovery
of the alleged underpayment, many unit employees filed grievances, both
individually and through the union, under the negotiated grievance
procedure. The union and management representatives held numerous
meetings with regard to the mechanics for processing the grievances
and/or back pay claims; a ruling was sought from the Comptroller
General, whose decision left "no dispute as to the merits of the
grievances . . . only the amount . . . "; and a task force was
established to process the records and back pay claims. Nevertheless,
because of its dissatisfaction with the progress of the task force, the
union consulted a private attorney concerning the possibility of filing
a civil action in the United States District Court for the purpose of
obtaining back pay underlying the pending grievances. The attorney
agreed to represent unit employees in a class action against Social
Security for the night pay differential allegedly due. Initially, the
attorney intended to recoup his fee and expenses solely on a contingent
basis from any recovery; subsequently, however, the attorney requested,
and the union agreed to pay, a retainer of $5,000.00. Although a
variety of consent forms were used, some of which provided for no
contingent fee, a consent form was published by the union which provided
that union members would pay the attorney a contingent fee of 5% of any
recovery and that non-union employees would pay a contingent fee of 10%
for any recovery. The class action was filed. At the time of the
hearing, the grievances had not yet been finally resolved or processed
to arbitration nor had the Court rendered decision in the class action.
Judge Sternburg stated that, "Other than possibly speeding up the
disposition or resolution of the back pay claims, the record fails to
set forth any other advantages that may inure to the unit employees by
joining in the suit rather than awaiting the outcome of the task force
set up to determine SSA's back pay liability to the individual
employees."
Consequently, in the Social Security case, as the union had proceeded
with disposition or resolution of the back pay claims under its
negotiated agreement, and those proceedings were active and continuing,
the union's instigation and financing of a parallel civil action was
outside its obligation as exclusive representative. Indeed, Judge
Sternburg stated,
"Had the suit been a substitute for arbitration, which was in
the sole control of the Union, then it would appear that the
question should be answered in the affirmative, since the Union
would then be precluding unit non-union members from equal
representation . . . ."
Although Social Security, supra, is distinguishable, I am aware, as I
noted in National Treasury Employees Union and National Treasury
Employees Union, Chapter 121 and Department of Treasury, Bureau of
Alcohol, Tobacco and Firearms, Case No. 6-CO-15 (OALJ-83-108)
(hereinafter, referred to as the "NTEU" case), that it appears to be
based, at least in part, on the premise that the union did not control
access to suit in court. As noted, Judge Sternburg did state that if
the civil action had been a substitute for arbitration he would have
found a violation, notwithstanding that access to suit in court would
have been unchanged; but, to the extent that Social Security, supra, is
based on control of access, my conclusion herein, for reasons more fully
set forth hereinafter, and in the NTEU case may be at variance with that
of Judge Sternburg.
Although not cited by Respondent, I have also considered American
Federation of Government Employees, Local 2126, AFL-CIO, San Francisco,
California, 1 FLRA No. 112, 1 FLRA 992 (1979), in which the Authority
adopted an Administrative Law Judge's decision that, " . . . the union,
as such, had no duty to represent complainant in his EEO complaint." (1
FLRA at 999). The complainant was a member of the union and, of course,
the case, did not involve any assertion of discrimination on the basis
of labor organization membership. Judge Schneider's statement, quoted
above, was consistent with the Council's decision in Naval Ordnance
Station, supra, and with Judge Naimark's statement in Western Region,
supra, and Judge Schneider found that the union ". . . did not act
arbitrarily or perfunctorily or in bad faith, and did not breach its
duty of fair representation to the complainant, under any of the
possible interpretations of that duty . . . ." (1 FLRA at 1002). See,
also, American Federation of Government Employees, AFL-CIO, Local 987, 3
FLRA No. 115, 3 FLRA 714 (1980).
There can be no doubt that an adverse action grows out of employment.
A suspension of less than 14 days for example, is subject to the
exclusive coverage of the negotiated grievance procedure. Indeed,
Respondent, rather than narrowing the coverage of its negotiated
grievance procedure, has provided for broad coverage, inter alia, "any
matter involving working conditions, or any matter involving the
interpretation and application of policies, regulations, and practices
of the Air Force, AFLC, and subordinates AFLC activities not
specifically covered by this Agreement." (Jt. Exh. 2, Art. 6, Sec. 6.01,
p. 25); and an aggrieved employee is afforded the option of utilizing
either the statutory appeals procedure or the negotiated grievance
procedure, but not both. (Jt. Exh. 2, Art. 6, Sec. 6.02, pp. 25-26).
The Agreement specifically provides that, ". . . the steward/official
may be excused from work, a reasonable amount of official time will be
granted to:
" . . .
"(7) represent an employee in appeal hearings covered by
statutory procedures;
* * * *
"(10) be present as an observer in adverse action proceedings
or grievance adjustments where the Union is not be employee's
representative (subject to approval of the hearing officer in
charge of the proceeding);
* * * *
"(13) prepare employee grievances and appeals;
* * * *
"(16) assist an employee when designated as their
representative in preparing a response to a proposed disciplinary
action;
* * * *
"(20) assist an employee in preparing a response to any
personnel action resulting from a directed fitness for duty
examination;
"(21) allow travel time on the base or to the Union office to
accomplish any of the above" (Jt. Exh. 2, Art. 4, Sec. 4.06, pp.
9-11; See, also, Sec. 4.07, p. 11; Sec. 4.09, p. 12).
Of course, official time is also provided for various other functions,
including: presentation of grievances at any step of the negotiated
grievance procedure; representation at arbitration hearings;
preparation for grievances and arbitration. An employee may present a
grievance without union representation, but "the Local shall be given an
opportunity to have an observer present at any discussion of the
grievance on official time if the observer would otherwise be in a duty
status" (Jt. Ex. 2, Art. 6, Sec. 6.05, p. 27).
Respondent states that ". . . when an employee is initially subjected
to discipline, the union will provide a representative irrespective of
membership. However, after management has made a final decision to
impose some discipline of a 14 days suspension, or longer, the employee
must decide whether to pursue his rights under the negotiated agreement
or to pursue his rights under the statutory appeal procedure. If the
employee elects to proceed under the statutory appeal procedure, then
the Union feels it's (sic) duty of fair representation is extinguished."
(Respondent's Brief, pages unnumbered). Respondent further states that,
"As a service to it's (sic) members, the Union has on staff three full
time union representatives. These are normally the individuals who
represent employees in statutory appeals (Tr. 32). Since these
individuals are not employed by Management, they do not receive any
official time to represent individuals before the MSPB." (Respondent's
Brief).
Secs. 21(d) and (e) of the Statute provide that matters covered by
statutory appeals procedures which fall within the coverage of the
negotiated grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appeals procedure or under the
negotiated grievance procedure, but not both (5 U.S.C. 7121(d) and (e)).
Respondent's Agreement (Jt. Exh. 2, Art. 6, Sec. 6.02, pp. 25-26) thus
reiterates the provisions of the Statute. It is possible that under the
doctrine of fair representation a union might decline all representation
of all unit employees in statutory appeals; but I expressed no opinion
concerning the duty, if any, under such circumstances as such issue is
not before me. Nevertheless, it is clear that a union violates its duty
of fair representation if it refuses to represent a unit employee
because of non-membership in the union. Thus, in Del Casal v. Eastern
Airlines, Inc., et al., 634 F.2d 295, 106 LRRM 2276 (5th Cir. 1981),
cert. denied, 454 U.S. 892, 108 LRRM 2656 (1982), the Court of Appeals
held that the union, Airline Pilots Association International (ALPA)
breached its duty of fair representation when it failed to provide a
discharged pilot, who was a member of its bargaining unit, with a union
staff attorney to represent him at a System Board of Adjustment hearing
because of his non-membership in the union. The Court stated, in part,
as follows:
"The court accepts ALPA's arguments that the duty of fair
representation does not require a union to accept a particular
individual into membership, that a union is not obligated to
extend those internal benefits enjoyed by its members to
nonmembers, and that a union may refuse to prosecute a grievance
which it considers to be lacking in merit; however, these
arguments are not dispositive of the issue in this case. The
issue in this case is whether a union may refuse to represent a
member of the bargaining unit on the ground that he is not a
member of the union without violating its duty of fair
representation. Thirty-five years ago this court established the
principle that a union may not discriminate against members of its
bargaining unit on the basis of that person's status as a
nonmember of the union. Hughes Tool Co. v. NLRB, 147 F.2d 69 (5th
Cir. 1945).
" . . . The proposition that discrimination against non-member
employees who are part of the bargaining unit is impermissibly
arbitrary if no relevant distinction exist between the union and
nonunion employees is reiterated in Deboles v. Trans World
Airlines, Inc., 552 F.2d 1005, 1016, (3rd Cir. 1977), cert.
denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed. 2d 98 (1977).
". . . While ALPA has the authority to decide under what
conditions an attorney will be supplied to a grievant, the fact
that the grievant is not a member of the union can play no part in
that decision." (634 F.2d at 300-301, 106 LRRM at 2280).
In Del Casal, supra, ALPA provided attorneys to grievants at their
hearings before the System Board, as Respondent provides staff
representatives here in hearings before the MSPB. Respondent, like
ALPA, violates its duty of fair representation when it denies
representation to members of the bargaining unit before the MSPB on the
basis of whether they are members of the union.
Under the Statute, Respondent has not merely a duty of fair
representation implied from its status as exclusive representative, but
the specific statutory obligation whereby it,
" . . . is responsible for representing the interests of all
employees in the unit it represents without discrimination and
without regard to labor organization membership." (Sec. 14(a)(1),
5 U.S.C. Sec. 7114(a)(1)).
Respondent's stated policy, as fully set forth in its publication, "916
Union Express" and in the testimony of President Holloway, was, and is,
that ". . . in the area of appeals to the Merit Systems Protection Board
the Union's policy is that only members can avail themselves of
representation by the Union." Such published policy violates
Respondent's obligation under Sec. 14(a)(1) and constitutes an unfair
labor practice, in violation of Secs. 16(b)(1) and (8). /7/ Tidewater
Virginia Federal Employees Metal Trades Council/International
Association of Machinists, Local No. 441, 8 FLRA No. 47, 8 FLRA 217
(1982); American Federation of Government Employees, Local 1778,
AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (1982); National Treasury
Employees Union, 10 FLRA No. 91, 10 FLRA 519 (1982); see also, National
Treasury Employees Union (NTEU), Chapter 202, et al., 1 FLRA 910 (1979);
Federal Aviation Science and Technological Association Division,
National Association of Government Employees, 2 FLRA 802 (1980).
Moreover, such announced policy constituted a further violation of Sec.
16(b)(1), independent of Sec. 14(a)(1), because it interfered with the
employees' protected right under Sec. 2 of the Statute to refrain from
joining a labor organization. American Federation of Government
Employees, Local 1778, AFL-CIO, supra; National Treasury Employees
Union, supra.
Having found that Respondent has engaged in, and is engaging in,
certain conduct in violation of Secs. 14(a)(1), and 16(b)(1) of the
Statute, it is recommended that the Authority issue the following:
ORDER
Pursuant to Section 18 of the Statute, 5 U.S.C. 7118, and Section
2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby
orders that the American Federation of Government Employees, AFL-CIO,
Local 916, shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in its unit of exclusive recognition solely on the basis
of whether such employees are members of American Federation of
Government Employees, AFL-CIO, Local 916.
(b) Interfering with, restraining, or coercing unit employees
in the exercise of their right to refrain from joining, freely and
without fear of penalty or reprisal, the American Federation of
Government Employees, AFL-CIO, Local 916, 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) Publish in its newspaper, "916 Union Express" a statement
informing all members of the bargaining unit that its prior
statement, published in September, 1981, that only union members
could avail themselves of representation by the union in statutory
appeals proceedings is hereby withdrawn and rescinded and inform
all unit employees that it will represent all bargaining unit
employees in statutory appeals proceedings without regard to labor
organization membership.
(b) Represent all employees in its unit of exclusive
recognition without discrimination and without regard to
membership in American Federation of Government Employees,
AFL-CIO, Local 916.
(c) Post at Tinker Air Force Base, Oklahoma, including at its
normal meeting places and all places where notices to members and
employees of the United States Department of Defense, Department
of the Air Force, Oklahoma City Air Logistics Center, Tinker Air
Force Base, Oklahoma, 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 Local 916 and they shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members and other
employees are customarily posted. The President of Local 916
shall take reasonable steps to insure that such Notices are not
altered, defaced, or covered by any other material.
(d) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
2423.20, notify the Regional Director of the Federal Labor
Relations Authority for Region VI, whose address is: P.O. Box
2640, Dallas, Texas, 75221, 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: July 15, 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 MEMBERS AND OTHER EMPLOYEES
THAT:
WE WILL NOT afford differing standards of employee representation to
employees in our unit of exclusive recognition solely on the basis of
whether such employees are members of American Federation of Government
Employees, AFL-CIO, Local 916.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the American Federation of Government Employees,
AFL-CIO, Local 916, 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 publish in our newspaper, "916 Union Express" a statement
informing all members of the bargaining unit that our prior statement,
published in September, 1981, that only Union members could avail
themselves of representation by the Union in statutory appeals
proceedings is hereby withdrawn and rescinded and we will inform all
unit employees that we will represent all bargaining unit employees in
statutory appeals proceedings without regard to labor organization
membership.
WE WILL represent all employees in our unit of exclusive recognition
without discrimination and without regard to membership in American
Federation of Government Employees, AFL-CIO, Local 916.
(Labor Organization)
Dated: By: (Signature) (Title)
This Notice must remain posted for sixty (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 VI,
whose address is P.O. Box 2640, Dallas, Texas 75221; and whose
telephone number is (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ The recommended Order is modified to require submission of the
Notice to the Charging Party and posting by the Charging Party.
/2/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(b)(1) will be referred to, simply,
as "16(b)(1)."
/3/ As a post-enactment, it is not part of the legislative history
and may not be accorded weight as legislative history.
/4/ "Having determined that section 10(e) of the Order does not
impose upon an exclusive representative an obligation to represent unit
employees in an adverse action proceeding, it is unnecessary to pass on
the Assistant Secretary's further conclusion that such obligation
continues until the employee chooses his own representative in a
grievance or appellate action pursuant to section 7(d)(1)." (3 FLRA at
690).
/5/ "in its brief Respondent states the Union had no right to request
Rodriguez before the MSPB. This contention supports the conclusion that
the latter could not have passed upon the Union's entitlement to the
information as bargaining representative." (9 FLRA at 492-493).
/6/ Respondent refers to the "duty of fair representation." While I
agree that the duty of fair representation, developed in the private
sector, see, for example, Conley v. Gibson, 355 U.S. 41 (1957), also
applies under the Statute, the Statute in Sec. 14(a)(1) contains a
specific non-discrimination provision and under the Statute "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."
/7/ Of course, the complaint herein does not allege a violation of
Sec. 16(b)(8), but only of Sec. 16(b)(1). Nevertheless, as the
Authority stated, in National Treasury Employees Union, infra,
Respondent'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 .
. . ." (10 FLRA 521, n.6). The better practice would be to allege both
a Sec. 16(b)(8) and a Sec. 16(b)(1) violation when there is an asserted
failure to represent the interests of all employees in the unit it
represents without discrimination and without regard to labor
organization membership. Certainly, American Federation of Government
Employees, Local 1778, AFL-CIO, infra, does not warrant the omission of
a Sec. 16(a)(8) allegation where, as here, the complaint asserts an
established policy of discrimination against non-member unit employees.