18:0299(36)CO - NTEU and NTEU Chapter 204 and Federal Election Commission -- 1985 FLRAdec CO

[ v18 p299 ]
The decision of the Authority follows:

 18 FLRA No. 36
 Charging Party
                                            Case No. 3-CO-30039
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, and the parties' contentions, the
 Authority finds:
    The complaint alleges that the National Treasury Employees Union and
 National Treasury Employees Union, Chapter 204 (Respondent) failed and
 refused to comply with section 7114(a)(1) of the Federal Service
 Labor-Management Relations Statute (the Statute) /1/ in violation of
 section 7116(b)(1) and (8) of the Statute /2/ by the issuance of a
 memorandum to unit employees establishing different schedules for
 members and nonmembers to telephone Respondent Chapter 204's President
 to ascertain whether they were on an Agency list of employees
 tentatively eligible to receive cash awards.
    On September 20, 1978, the Respondent National Treasury Employees
 Union was certified as the exclusive representative for a unit of all
 professional and nonprofessional employees of the Federal Election
 Commission (the Agency), including temporary employees.  At all times
 material herein, Respondent Chapter 204 has been the designated agent of
 the Respondent National Treasury Employees Union for purposes of
 representing employees in the unit described above.  At all times
 material herein, Philip J. Kellett has been the President of Chapter
 204.  On September 19, 1983, the Agency provided the Respondent with a
 list of unit employees tentatively eligible to receive cash awards under
 Article 20 of the collective bargaining agreement between the Agency and
 the Respondent.  On that same day, Kellett distributed a memorandum to
 all unit employees informing them that the Respondent had received a
 list of employees tentatively eligible to receive cash awards under
 Article 20 of the agreement and established the following schedules
 under which employees could telephone to find out if their names
 appeared on the list:
          Daily, 9:30 a.m. until 5:30 p.m., MEMBERS OF NTEU Chapter 204
       may contact me to inquire about their standing.
          Daily, from 5:30 p.m. until 5:45, NON-MEMBERS may call to make
    The General Counsel contends that the Respondent's establishment of a
 different schedule which provided a period of 15 minutes at the end of
 the normal work day to nonmembers as opposed to 8 hours during the work
 day for members to receive desired information breached its duty to
 fairly represent all employees in the unit under section 7114(a)(1) in
 violation of section 7116(b)(1) and (8) of the Statute.  The Respondent,
 on the other hand, contends that in the present case it had the right to
 distinguish between members and nonmembers because it was not
 "representing" unit employees as defined in the Statute.
    The U.S. Court of Appeals for the District of Columbia Circuit, in
 affirming the Authority's decision in National Treasury Employees Union,
 10 FLRA 519 (1982), aff'd sub nom. National Treasury Employees Union v.
 Federal Labor Relations Authority, 721 F.2d 1402 (D.C. Cir. 1983),
 stated in part:
          The duty of fair representation does not establish an objective
       standard of 'adequate representation' that the union must meet as
       a minimum, and that, once met, the union may use as a basis upon
       which to discriminate between members and nonmembers. Rather,
       under the duty of fair representation, a union may adopt virtually
       any non-arbitrary standard for providing representation of
       individual employees, so long as the standard adopted is applied
       in a nondiscriminatory manner with respect to all unit employees,
       i.e., members and nonmembers alike.
 Subsumed within that duty also is the obligation not to discriminate on
 the basis of union membership in representing unit employees on matters
 affecting their conditions of employment.  The Authority, in applying
 the NTEU decision, supra, found in American Federation of Government
 Employees, AFL-CIO, 17 FLRA No. 72 (1985), that the duty of fair
 representation is not restricted to those proceedings under the sole
 control of the exclusive representative as a consequence of its
 certification.  Rather, 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.
    In the present case, the Respondent voluntarily undertook to provide
 unit employees with information concerning their eligibility to receive
 cash awards, a matter affecting their conditions of employment.  /3/ The
 Respondent obtained that information from the Agency for dissemination
 to unit employees.  It is inferred that Respondent obtained such
 information by virtue of its status as the employees' exclusive
 representative.  Thus, Respondent was acting in its capacity as the
 exclusive representative of unit employees under section 7114(a)(1) when
 it disseminated information to those employees concerning the
 implementation of a collective bargaining agreement provision which
 Respondent had negotiated with the Agency.  In providing unit employees
 access to this information, Respondent's decision to allow access to
 union members for an eight-hour period during the work day while
 restricting nonmembers to only 15-minutes at the end of the work day
 constituted discrimination with regard to its representation on the
 basis of union membership.  In this regard, contrary to the Respondent's
 assertion, the fact that unit employees are not being "represented" in a
 formal or adversarial proceeding cannot absolve an exclusive
 representative from the consequences of its demonstrably discriminatory
 conduct when acting in its capacity as exclusive representative.
 Further, by allowing nonmembers such a small segment of time to inquire
 about the cash awards, this has the effect of coercing nonmembers to
 join Respondent which is a violation of employee rights guaranteed under
 section 7102 of the Statute.  Accordingly, the Authority concludes that
 by failing to give nonmembers equal time to inquire about their
 eligibility to receive cash awards, a matter affecting their conditions
 of employment and of obvious significance to them, the Respondent has
 failed to meet its obligation under section 7114(a)(1) of the Statute
 and thereby violated section 7116(b)(8) of the Statute.  Further, by the
 above conduct, the Respondent has interfered with, restrained and
 coerced employees in the exercise of their rights guaranteed in section