29:1359(114)CO - AFGE and Edward Hanlon -- 1987 FLRAdec CO
[ v29 p1359 ]
The decision of the Authority follows:
29 FLRA No. 114 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Respondent and EDWARD HANLON Charging Party/Individual Case No. 3-CO-60006
I. Statement of the Case
The Administrative Law Judge issued the attached decision in this case, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed. The General Counsel and the Charging Party filed exceptions to the Judge's decision and the Respondent filed an opposition to the exceptions.
Until March 1985, Edward Hanlon was President of American Federation of Government Employees (AFGE), Local 2782, the exclusive representative of a unit of employees of the Bureau of the Census. He was defeated in his bid for reelection, and soon thereafter became active in an effort to persuade bargaining unit employees to switch their allegiance to the National Treasury Employees Union (NTEU).
The Respondent initiated an internal union disciplinary proceeding against Hanlon. By letter of April 17, 1985, the Respondent's National Vice - President, Donald MacIntyre, charged Hanlon with various alleged acts of disloyalty in violation of the AFGE Constitution and informed him that if the charges were sustained, he would be expelled from AFGE. [PAGE]
Between April 17 and October 31, 1985, Hanlon filed a number of unfair labor practice charges against the Bureau of the Census (Census) and the General Services Administration (GSA). The charges asserted the right of employees to distribute pro - NTEU materials in buildings occupied by Census and controlled by GSA. By letter of October 31, 1985, the Respondent amended the original charge of disloyalty to add allegations concerning Hanlon's conduct after April 17. The letter set forth a number of additional instances of assertedly pro - NTEU activity by Hanlon, including his filing of the unfair labor practice charges against Census and GSA. Specifically, the Union accused Hanlon of misconduct as follows: "You have filed formal charges against the Bureau of Census and the General Services Administration seeking an opportunity to distribute NTEU organizing materials to employees presently represented by AFGE Local 2782."
On November 20, 1985, Hanlon's attorney responded to the additional allegation, specifically contending that Hanlon had a right to file the unfair labor practice (ULP) charges against Census and GSA and that he could not be prosecuted for exercising that right. At the internal disciplinary hearing before the Respondent's Trial Committee, which began on November 21, 1985, MacIntyre nevertheless pressed the allegation against Hanlon for filing the charges. MacIntyre introduced one of the unfair labor practice charges filed by Hanlon against Census and GSA into the record and questioned him concerning the matter. MacIntyre sought to extract an admission from Hanlon that the purpose of the charge was to gain an opportunity to distribute NTEU materials. During the first day of the proceeding, Hanlon presented MacIntyre with a draft of an unfair labor practice charge against AFGE, reiterated his position that he had a right to file the charges against Census and GSA, and gave MacIntyre two weeks in which to withdraw the allegation concerning the filing of those charges in the October 31 letter. MacIntyre did not withdraw the allegation. Hanlon filed the charge against the Respondent on December 9, 1985.
On January 8, 1986, MacIntyre filed a motion with the Trial Committee asking that it strike the allegation concerning Hanlon's filing of the charges against Census and GSA and that the Committee not consider the related exhibits or testimony in reaching a decision. On January 21, the Trial Committee granted MacIntyre's motion. [ v29 p2 ]
On February 19, the Trial Committee found that Hanlon had engaged in "conduct detrimental or inimical to the best interest of this Federation' and recommended that he be expelled, as mandated by AFGE's constitution. On February 25, 1986, National President Kenneth T. Blaylock "expelled" Hanlon from membership for 5 years. 1
III. Administrative Law Judge's Decision
The Judge found that the only factual issue was whether the Respondent's proposal to discipline Hanlon was based in part on his having filed an unfair labor practice charge against Census and GSA. The Judge found that the proposed discipline pre-dated by months the unfair labor practice charge; that the Respondent's later reference to Hanlon's filing of charges was the last of 12 allegations of disloyalty against him; and that the cross-examination of Hanlon at the disciplinary proceeding concerning that allegation was limited. However, the Judge concluded that Hanlon's invocation of the unfair labor practice processes of the Authority was a factor in the disciplinary case against him.
The Judge identified the legal issue as whether a union may expel or suspend a member who invokes the Authority's processes by filing an unfair labor practice charge for the purpose of facilitating the member's effort to displace it with another union. The Judge found that because Hanlon sought to use the Authority's complaint processes to provide a more effective means of communicating to unit employees a message designed to end the Respondent's existence as a representative of the employees, the Respondent was within its right under section 7116(c) of the Federal Service Labor - Management Relations Statute (the Statute) to discipline Hanlon.
More specifically, the Judge noted private sector case law to the effect that a union may expel a member for filing a decertification petition because it represents an attack on the very existence of the union, Tawas Tube Products, Inc., 151 NLRB 46 (1965). The Judge reasoned that Hanlon's charge against Census and GSA was like a decertification petition because it was an important element in his attack on the Respondent and was intended to lead to replacement of the Union as representative of the bargaining unit. The Judge therefore recommended that the Tawas Tube decision be expanded and applied in this case. Further, the Judge found that the Respondent's threat to expel Hanlon from membership for filing the charge was a limited and appropriate defensive [ v29 p3 ] measure. The Judge concluded that the Respondent did not interfere unnecessarily with or coerce Hanlon in exercising his right to file ULP charges or unlawfully threaten him. Rather, the Judge concluded that the Respondent exercised its right under section 7116(c) of the Statute to enforce discipline in a manner consistent with the Statute. The Judge therefore determined that the Respondent did not violate section 7116(b)(1) of the Statute, as alleged in the complaint, and recommended that the Authority dismiss the complaint.
IV. Positions of the Parties
A. General Counsel's Contentions
In its exceptions, the General Counsel contends that the Respondent's threat of discipline against Hanlon because he filed unfair labor practice charges constituted an unwarranted interference with Hanlon's protected right under section 7102 of the Statute to file unfair labor practice charges with the Authority and, therefore, a violation of section 7116(b)(1) of the Statute. In support of its contention, the General Counsel argues that the filing of unfair labor practice charges is a protected right and that a union may not attempt to penalize a member for exercising that right. The General Counsel further argues that union members would be inhibited in filing charges with the Authority if they could later be threatened with internal union discipline for having done so.
B. Charging Party's Contentions
In his exceptions, the Charging Party argues that if the Authority were to adopt the rationale of the Judge, the Authority's unfair labor practice process would be adversely affected, the ability of the General Counsel to discover and prosecute unfair labor practices would be impeded, and, employees would be uncertain as to which unfair labor practice charges could result in union discipline and which could not. Further, the Charging Party alleges that the unfair labor practice charges he filed were against management and did not threaten the existence of the Respondent.
C. Respondent's Contentions
in its opposition, the Respondent argues in support of the Judge's rationale and decision. The Respondent argues that if a union member's "treasonous activity" becomes protected activity by the filing of a ULP charge, "a union [ v29 p4 ] would effectively be precluded from ever defending itself from internal sabotage and acts of treason as long as the member/saboteur simultaneously filed unfair labor practices alleging that his activity was protected activity."
V. Analysis and Conclusions
The issue in this case is whether the Respondent violated section 7116(b)(1) of the Statute when it proposed to discipline Hanlon for filing unfair labor practice charges, as alleged in the complaint. We find, contrary to the Judge, that the Respondent violated the Statute as alleged.
We recognize that under section 7116(c) of the Statute, a labor organization may discipline its members pursuant to procedures contained in its constitution or bylaws. In most cases, that discipline is not and should not be reviewed by the Authority. Contrary to the Union's position, however, the Union's ability to enforce discipline is not unlimited. Indeed, section 7116(c) itself recognizes that a union's actions must be consistent with the Statute. Accordingly, the Union's assertions that its actions were necessary to defend against "treasonous activity" are not dispositive of this case. Rather, our inquiry here is whether the proposal concerning Hanlon's filing of unfair labor practice charges resulted in unlawful restraint, interference or coercion under section 7116(b)(1) of the Statute. We do not here pass on any of the other allegations of disloyalty contained in the Union's charges, nor will we review the final Union action in relation to the other charges.
It is well established that the filing of unfair labor practice charges is a protected right of employees under section 7102 of the Statute and that a union may not threaten or discipline a member because the member has filed unfair labor practice charges. National Association of Government Employees, Local R5-66, 17 FLRA 796 (1985); Overseas Education Association, 15 FLRA 488 (1984). Congress has ensured in section 7102 that employees may exercise their rights under that provision "freely and without fear of penalty or reprisal." Congress further provided in section 7116(b)(1) that a union may not interfere with, restrain or coerce an employee in the exercise of a right under the Statute. While under section 7116(c) of the Statute a union is not precluded from disciplining a member in accordance with the procedures of its constitution or bylaws, it may do so only to the extent [ v29 p5 ] that the discipline is consistent with provisions of the Statute. 2 To threaten to discipline a member for the exercise of a right the member has under section 7102 is inconsistent with section 7102 and, therefore, beyond the legitimate interests of a union to regulate its internal affairs.
In this case, the Respondent initiated its disciplinary procedure against Hanlon several months before he filed any unfair labor practice charges. However, the Respondent amended its initial accusation against Hanlon by specifically adding as a further allegation of misconduct his filing of charges. Thus, the Respondent clearly proposed to discipline Hanlon based in part on his exercise of his section 7102 right to file charges with the Authority.
Moreover, the accusation of wrongdoing for filing unfair labor practice charges was not inadvertent or merely an inartfully phrased allegation, but, rather, an intentional and fully considered specification in the disciplinary action case against Hanlon. Hanlon's attorney objected to this additional allegation both prior to and during the course of the disciplinary hearing, essentially contending that the allegation constituted an illegal interference with Hanlon's right under the Statute to file charges. Despite those objections and Hanlon's expressed intent to file an unfair labor practice charge against the Union unless the allegation was dropped, the Respondent's Vice President continued to press the allegation and questioned Hanlon at length concerning his filing activity at the disciplinary hearing. Only after Hanlon filed the unfair labor practice charge against the Respondent which led to the complaint in this case did the Respondent's representative seek to strike the disputed allegation. [ v29 p6 ]
The Union claims that it was not Hanlon's filing of charges per se which formed a basis for its disciplinary action against him, but, rather, the disloyal conduct that was disclosed by the filing. The Union asserts that its Vice President was not questioning Hanlon's right to file charges, but was trying to show that Hanlon was filing charges to facilitate his goal of ousting AFGE and replacing it with NTEU, an act that allegedly was inconsistent with his membership in the Union. However, we find that whatever the Union's subjective reasons or motivation may have been for including Hanlon's filing of unfair labor practice charges as a basis for the disciplinary action, such reasons or motives are not controlling or significant in this case.
We are persuaded by the objective facts and circumstances surrounding the Union's conduct as described above, principally: (1) the express wording of the allegation against Hanlon clearly accusing him of wrongdoing for filing unfair labor practice charges; (2) the circumstances in which the allegation was made and aggressively pursued, that is, an effort to discipline Hanlon in a formal proceeding and (3) the circumstances that eventually led to the withdrawal of the disputed allegation, that is, the Union did not withdraw the allegation until after it was faced with an unfair labor practice charge of unlawfully interfering with Hanlon's rights. Further, although the record indicates that the Respondent's Trial Committee and National President did not consider Hanlon's filing of unfair labor practice charges in making a decision in this matter, his protected activity clearly formed a basis for the proposed disciplinary action up to the time that the Trial Committee acted.
In these circumstances, we find that the Respondent's conduct constituted a threat against Hanlon for exercising a protected right under the Statute and that its conduct went beyond the boundaries of permissible internal union discipline under section 7116(c). We also disagree with the Judge's conclusion that the Union's threat to expel Hanlon for filing unfair labor practice charges was an appropriate defensive measure under the Statute. In that regard, we reject the Judge's recommendation that we expand and apply the NLRB's Tawas Tube doctrine in the circumstances of this case.
The Tawas Tube doctrine provides that a union may expel a member for filing a decertification petition because such a petition represents an attack on the very existence of the union. The Judge reasoned that Hanlon's unfair labor [ v29 p 7 ] practice charges were like a decertification petition because they were an important element in a direct attack on or challenge to the Union's existence and also because they were possible precursors of a representation petition designed to oust AFGE as representative of the bargaining unit. The Judge, therefore, concluded that Hanlon's filing of his ULP charges should be unprotected from the Union's action under the Statute. We disagree.
As the Judge recognized, the policy in the private sector is that individuals are to be completely free from restraint or coercion in seeking relief from the National Labor Relations Board (NLRB or the Board) through the filing of ULP charges. NLRB v. Industrial Union of Marine and Shipbuilding Workers of America, AFL - CIO, 391 U.S. 418 (1968). The right of individuals to file ULP charges is considered indispensable to the administration of the National Labor Relations Act (the Act) because the Board cannot initiate its own processes to prevent and remedy unfair labor practices. Thus, any effort to discourage, impede or defeat an individual's right of free access to the Board's ULP processes is contrary to public policy and beyond the legitimate interests of a labor organization. The Judge correctly noted that the same policy and rationale apply in the Federal sector under the Statute. He also appropriately observed that an employee who files a ULP charge with the Authority has stepped beyond the internal affairs or legitimate concerns of his or her union and into the public domain, where the overriding public interest in ensuring free access to the Authority's ULP processes controls.
Furthermore, as the Judge recognized, in the private sector the Tawas Tube doctrine is strictly limited to decertification petition situations and does not permit union discipline of members for filing ULP charges, even where a charge reasonably may be interpreted as a threat to the existence of the union. Cannery Workers Union (Van Camp Sea Food Co.), 159 NLRB 843 (1966).
In its Cannery Workers decision, the Board emphatically refused to extend the Tawas Tube doctrine to the unfair labor practice charge process. The Board held, in pertinent part:
Where a charge has been filed asserting infringement of statutory rights in violation of Section 8 of the Act, such charge relates to events which have already occurred and sets in motion the [ v29 p8 ] Board's investigatory machinery to determine whether (1) the charge is meritorious and warrants formal proceedings, including an adversary hearing in which the issues are fully litigated, with the matter ultimately adjudicated by the Board on the basis of the record developed at the hearing, or (2) the charge lacks merit and should be dismissed. In either case, the resolution of the matter proceeds from an objective appraisal of fixed events preceding the filing of the charge, and the determination is made by a public agency, the Board, or, on appeal, the courts. At no stage of the proceeding is there occasion for influencing or persuading employees to support a particular disposition of the matter. Neither their subjective views concerning the events involved in the charge nor their solidarity with their fellow union members can have any legitimate effect on the outcome. The Board here is concerned not with their views, choices, or mutual support, but the vindication of the public interest in securing obedience to the statute. There is therefore, no justification for permitting the public policy of the Act to be circumvented through the imposition of disciplinary action against an employee for having filed a charge with the Board. These considerations are applicable to all charges filed under section 8 . . . .
159 NLRB 849.
The Board contrasted representation proceedings under section 9 of the Act, such as decertification petition proceedings:
While proceedings under Section 9 of the Act are no less within the public domain, there are significant differences. Here, the Board is concerned with ascertaining the desires of the employees . . . . The matter of union representation is resolved, not through any appraisal by the Board of alleged past events, but rather by the employees themselves . . . . The outcome here is determined, not by past events already fixed, but by the influencing of employee views for the future event of their expression in the [ v29 p9 ] election. In the fluid rather than fixed circumstances of a contest for support, the union and its adherents can perform their legitimate function effectively only if they are unified. To require them to tolerate an active opponent within their ranks would undermine their collective action and thereby tend to distort the results of the election. To permit the union and its members to discipline the hostile members is therefore not inconsistent with the purposes of the Act and impinges on no legitimate interests of others as we decided in Tawas Tube. On the other hand, for a union to penalize a member for filing a charge directly infringes upon the proper administration of the Act and therefore cannot be permitted . . . .
159 NLRB 849-50.
We find the rationale of the Board in Cannery Workers applicable and persuasive in the circumstances of this case. Therefore, even assuming that Hanlon's ULP charges reasonably may be construed as part of an attack on the Union, we will not fashion and apply an expanded Tawas Tube doctrine as recommended by the Judge, because "(t)here is . . . no justification for permitting the public policy of the (Statute) to be circumvented through the imposition of disciplinary action against an employee for having filed a charge with the (Authority)." Rather, in accordance with prior Authority decisions and consistent with private sector case law cited above, we find that the Respondent's conduct in threatening Hanlon with discipline for filing unfair labor practice charges with the Authority constituted an unlawful interference with his protected right under section 7102 of the Statute to file the charges. Moreover, we find that the Union's action could reasonably tend to have a restraining or "chilling" effect on other members who might similarly wish to exercise such right.
Accordingly, we conclude that the Respondent violated section 7116(b)(1) of the Statute as alleged in the complaint. However, since Hanlon's filing of unfair labor practice charges was not considered as a basis for the decision to suspend him, our remedy will address only the Respondent's reliance on Hanlon's filing of unfair labor practice charges as a basis for the proposed disciplinary action. [ v29 p10 ]
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the American Federation of Government Employees, AFL - CIO, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing, its members in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute by threatening to discipline members for filing unfair labor practice charges.
(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
2. Take the following affirmative action in order to carry out the purposes and policies of the Federal Service Labor - Management Relations Statute:
(a) Post at the business office at the American Federation of Government Employees, AFL - CIO, and in normal meeting places, including places where notices to members of and unit employees exclusively represented by American Federation of Government Employees, Local 2782, the agent of the American Federation of Government Employees, AFL - CIO, are customarily posted, copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the National President of the American Federation of Government Employees, AFL - CIO, and shall be posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and to other employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(b) Submit appropriate signed copies of said Notice to the Bureau of the Census, Suitland, Maryland, for posting in conspicuous places where unit employees exclusively represented by American Federation of Government Employees, Local 2782, AFL - CIO, the agent of the American Federation of Government Employees, AFL - CIO, are located for 60 consecutive days from the date of posting. [ v29 p11 ]
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of the Order, as to what steps have been taken to comply.
Issued, Washington, D.C., October 30, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY [ v29 p12 ]
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce our members in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute by threatening to discipline members for filing unfair labor practice charges.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.
_____________________________ (Union) 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 of the Federal Labor Relations Authority, Region III, whose address is 1111 18th Street, N.W. 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. [PAGE]
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Respondent and EDWARD HANLON Charging Party Case No. 3-CO-60006 Donald M. Macintyre, and Hugh Hassan For the Respondent Carolyn J. Dixon, Esquire Bruce Rosenstein, Esquire For the General Counsel Before: JOHN H. FENTON Chief Administrative Law Judge
Statement of the Case
This matter arises under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq. it is based on a charge filed by Edward Hanlon on December 9, 1985, and a Complaint issued on February 28, 1986 by the Regional Director of Region III of the Federal Labor Relations Authority. The Complaint alleged that Respondent violated section 7116(b)(1) of the statute by proposing to discipline Hanlon (i.e., affect his membership status) because he filed unfair labor practice charges. At issue are the questions whether such a threat was in fact made, and, if so, whether the kind of charge(s) here involved renders Hanlon's conduct vulnerable to lawful discipline. [PAGE]
A hearing was held on April 15, 1986 in Washington, D.C. Based on the entire record and my observation of the witnesses, I make the following findings of fact, conclusions of law and recommendations.
Findings of Fact
Until March of 1985, Edward Hanlon was President of AFGE Local 2782, the certified exclusive representative of employees of the Bureau of the Census. He was defeated in his bid for reelection, and soon thereafter he became very active in an effort to persuade bargaining unit employees to switch their allegiance to the National Treasury Employees Union.
On April 17, 1985, AFGE National Vice - President Donald MacIntyre wrote Hanlon a letter, in which he detailed various acts of claimed disloyalty on Hanlon's part, informed him that he would be brought to trial and, if found guilty, expelled from Local 2782. 3
For various reasons the trial did not commence until November 21, 1985. Hanlon in the meantime continued his activities seeking to replace AFGE with NTEU as the representative of the unit employees. Between the date of his "indictment" and October 31 he filed nine unfair labor practice charges against Census and GSA. All concerned the right of employees to distribute pro - NTEU materials in the buildings occupied by census and controlled by GSA.
On October 31, MacIntyre again wrote Hanlon, amending the original allegations to add conduct occurring since the April letter. The letter set forth eight "illustrative" instances of additional pro - NTEU activity, the last of which was:
You have filed formal charges against the Bureau of Census and the General Services Administration seeking an opportunity to distribute NTEU organizing materials to employees presently represented by AFGE Local 2782. [ v29 p2 ]
On November 20, Hanlon's attorney, Leonard Levy, responded to the charges in a letter to the Chair of Respondent's Trial Committee. He specifically asserted that Hanlon "has a right to file unfair labor practice charges against the Census Bureau and the General Services Administration, and cannot be prosecuted for that." At the trial, MacIntyre nevertheless pressed his charge in this respect over the objection of attorney Levy, introducing an unfair labor practice charge into the record, and examining Hanlon with respect to such activity. That examination consisted of an effort to extract from Hanlon an admission that the purpose of the charge (also called complaints) was to gain an opportunity to distribute NTEU materials. MacIntyre's persistence in attempting to get Hanlon to concede that such was his motivation certainly suggests, for what it is worth, that it was not the charge(s), as such, but the opportunity the charge(s) would open up, which concerned Respondent. That opportunity as MacIntyre insisted, was to replace AFGE With NTEU. 4
During that first day of trial, Hanlon presented MacIntyre with a draft of the unfair labor practice charge which gave rise to this proceeding, reiterated his right to file such charges, and gave MacIntyre two weeks in which to withdraw the allegation concerning formal charges in the October 31 letter. MacIntyre did not answer and failed to meet that deadline. The charge was filed on December 9. Two more days of trial followed on December 21 and 22.
On January 8, apparently after the investigation of the instant charge had involved Respondent, MacIntyre filed a motion with the Trial Committee. He asked that it strike the allegation concerning the filing of unfair labor practice charges, and that it not consider, in reaching its [ v29 p3 ] decision, either the exhibit or the testimony relating to it. On January 20, counsel for Hanlon, while not resisting the request that the charge be dropped, vigorously resisted any attempt "to purge the record" of all references to the matter. On January 21, the Trial Committee granted the motion to "strike from the record" the statement concerning Hanlon's charges against Census and GSA and the request that the exhibit and testimony relevant thereto not be considered.
On February 19, the Trial Committee found that Hanlon had engaged in "conduct detrimental or inimical to the best interests of this Federation" and recommended that he be expelled, as mandated by Article XVIII, section 2(a) of the AFGE Constitution. On February 25, National President Kenneth T. Blaylock expelled Hanlon from membership for five years. 5
Discussion and Conclusions
The sole factual issue is whether Respondent's proposal to discipline Hanlon was in part based on his having filed an unfair labor practice charge in Case No. 3-CA-50499. The lawfulness of his expulsion is not in question, although Respondent's brief resists on such grounds in reliance on mixed motive cases and the "but for" test. 6
The proposed discipline pre-dated by months the unfair labor practice charge. It is clear that Respondent's overwhelming concern was that the former president of its Local 2782 was actively campaigning to displace that union [ v29 p4 ] with the NTEU. Its reference to Hanlon's having filed "formal charges" is the last of twelve "counts" of disloyalty lodged against him, a placement which appears to indicate its relative importance. The cross-examination of Hanlon in the internal trial, with respect to the charge placed in evidence, is limited to the effort to elicit his admission that he wished to open up the property of Census/ GSA to his organizing effort in behalf of NTEU. It is noteworthy also that Respondent never proposed any discipline based on Hanlon's complaints to the Department of Labor.
These circumstances tend to suggest that it was not the "charges" per se the disturbed Respondent, but rather the disclosure therein of his treasonous purpose - a matter Respondent sought to prove at the trial. Thus, I was prepared for the argument that the allegation was inartfully or improvidently drawn, and that its reference to the charges was merely descriptive of the manner in which disloyal activity was disclosed rather than an attack upon the means chosen to achieve that purpose. Put another way, it appeared conceivable that Hanlon's right vis-a-vis census GSA to file charge and vindicate the right of employees to distribute organizational materials could be acknowledged or recognized, while his claimed right to campaign against his union would not be. The fact that MacIntyre did not respond to the letter from Hanlon's attorney asserting the latter's right to file a charge, did not respond to Hanlon's statement that he would file the instant charge if that allegation was not withdrawn, and defended this action, in part, on the basis of mixed motive cases, convinces me that Hanlon's action in invoking the processes of the Authority was itself a factor in the disciplinary case against him. 7
The legal issue is more difficult: may an exclusive bargaining agent expel (suspend?) a member who invokes the Authority's processes by filing an unfair labor practice charge for the purpose of facilitating his effort to displace it with another labor organization? Is a union [ v29 p5 ] entitled, under the law, to use its internal disciplinary powers to defend itself against such a threat to its existence?
The Statute does not contain, in Section 7116(b), which governs the conduct of labor organizations, any specific unfair labor practice provision protecting the rights of employees who initiate, or otherwise cooperate in, proceedings before the Authority. It does, however, in Section 7116(a)(4) make it an unfair labor practice for an agency to
discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter.
Notwithstanding the lack of a corresponding provision under section 7116(b), the Authority has held that a union may not remove a steward because he gave testimony in an Authority proceeding 8 expel a member because he filed, or caused others to file, an unfair labor practice against it. 9 or threaten an employee who had filed a charge against it. 10
The Authority 's rationale for these holdings was most fully stated at 6 FLRA 218, as follows:
the right guaranteed to employees under section 7102 of the Statute to form, join, or assist any labor organization, or to refrain from such activity, is sufficiently broad to include within its scope the right of an employee to appear as a witness in Authority proceeding to which a union is a party and to give testimony supporting or opposing the union's interest in that proceeding. In this regard, it is no less interference with the section 7102 statutory right for [ v29 p6 ] a union to discipline or discriminate against an employee for giving testimony in an Authority proceeding than it is for an employer to do so as proscribed by section 7116(a)(4) of the Statute. Such interference with employee rights under section 7102 is thus a violation of section 7116(b)(1) of the Statute. However, this should not be construed as abrogating the union's control of its own internal affairs in the absence of a statutory violation such as here involved.
That analysis does not explain why the constraints expressly imposed upon agencies in such circumstances should apply to labor organizations in the absence of any explicit reference to the latter, nor does it acknowledge the relevance of private sector guidance, where the Labor Board and reviewing courts have imposed such constraints upon unions in the construction of a statute which likewise fails expressly to provide for such unfair labor practices by unions. Because this case presents a novel question, and one where private sector guidance might well be useful, the statutory framework of the two laws, as respects the relationship of unions to those they represent, would appear to be helpful.
Both laws assure employees the right to form, join or assist any labor organization, or to refrain from such activity. Our Statute makes it an unfair labor practice for a union "to interfere with, restrain or coerce any employee in the exercise of" such rights. The NLRA makes it an unfair labor practice for a union "to restrain or coerce . . . employees in the exercise of" such rights, with the proviso that:
this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein . . .
Our own Statute in Section 7116(b)(4), provides that it shall be an unfair labor practice for a labor organization--
to discriminate against an employee with regard to the terms and conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or non- [ v29 p7 ] preferential civil service status, political affiliation, marital status or handicapping condition.
In addition, in Section 7116(c), our Statute provides that:
it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by such exclusive representative except for failure--
(1) to meet reasonable occupational standards uniformly required for admission, or
(2) to tender dues uniformly required as a condition of acquiring and retaining membership.
This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with tile provisions of this chapter.
Finally, section 7115(b) provides that authorized dues deductions shall terminate when an employee is suspended or expelled from membership in the union.
The NLRA's treatment of the subject is far less comprehensive. It provides that an employer may not discriminate against an employee "because he has filed charges or given testimony under this act." It contains no limitation on a union's right to discriminate with regard to the terms or conditions of membership, although it prohibits a union from causing or attempting to cause an employer to discriminate against an employee who has been denied membership (or has had it terminated) on some ground other than a failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Its general prohibition on restraint or coercion of employees in the exercise of section 7 rights (the analog of our Section 7102) is associated with a very broadly worded directive: that such prohibition of restraint and coercion of employees in the exercise of these fundamental rights of [ v29 p8 ] association (or non-association) are not to be construed in such a way as to limit the union's freedom to prescribe its own rules respecting membership.
The contrast between the Statutes is marked. unions in the private sector expressly have a virtually free hand in deciding the qualifications for membership and the ways in which such status can be lost or limited. In the federal sector such power is severly circumscribed by section 7116 (b)(4), which lists ten grounds upon which discrimination concerning the terms and conditions of membership is prohibited. Further, Section 7116(c) arguably eliminates any such power, at least with respect to the acquisition of membership. It, in a sweeping statement which seems to render Section 7116(b)(4) not only too narrow but altogether redundant, prohibits the denial of membership for any reason other than uniformly imposed requirements having to do with reasonable occupational standards or the payment of dues. That section nevertheless leaves unions free to enforce discipline in accordance with the procedures of constitutions and bylaws "to the extent consistent with the provisions of this chapter."
Read literally and in isolation, section 7116(c) would end this inquiry, Hanlon was denied membership for reasons having nothing to do with occupational standards or willingness to pay dues. Such a literal reading of the first sentence of section 7116(c) would also suggest that the forms of union discipline recognized in the second sentence could not include expulsion. However, Section 7115(b) recognizes a union's power to expel, and the Assistant Secretary, in interpreting section 19(c) of Executive order 11491, which is virtually identical to Section 7116 (c) of the statute, recognized a union's right to expel members for misconduct. 11 In AFGE Local 987, the Assistant Secretary spoke to the right of a labor organization "to protect itself from those acts of its members which threaten its continued existence." He said:
In my view, a labor organization may, pursuant to section 19(c) of the order, subject its members to discipline, [ v29 p9 ] including, in appropriate cases, expulsion, to protect its continued existence, if such discipline is meted out in accordance with procedures under the labor organization's constitution or by-laws which conform to the requirements of the Order.
Although the Authority has not had occasion to address the question, it would seem clear that section 7116(c) does not prohibit suspension or expulsion as a form of discipline exercised by a union in the management of its internal affairs. The question remains whether it may lawfully be exercised in response to the filing of an unfair labor practice charge by a member who seeks thereby to end the union's status as exclusive bargaining agent.
In the private sector the NLRB, with Court approval, has held that Congress intended to impose on unions the same restrictions which were imposed on employers regarding employee rights. Thus, the prohibition of employer discrimination based on an employee's having filed a charge or given testimony under that Act has been extended to unions notwithstanding the lack of such a specific limitation on unions. 12 The Board noted that its power to prevent and remedy unfair labor practices confers on any person the right to file charges, that such right is indispensable to the administration of the law because the Board cannot initiate its own processes, and that the right to invoke such processes must therefore be zealously guarded. The same rationale applies to the Authority: in a word, that an employee who files charges with the Authority has stepped beyond the internal affairs (or legitimate concerns) of his union and into the public domain, where there exists an overriding public interest in keeping access to the regulatory agencies free from interference in the name of internal discipline.
The Board has extended such protection to employees who file petitions, although the terms of its Act apply literally [ v29 p10 ] only to charges or testimony. There is only one slim exception to this doctrine of free access. In Tawas Tube Products, Inc. (151 NLRB 46) the Board held that the filing of a decertification petition was an attack upon "the very existence of the union as an institution" and that the union acted in a privileged, defensive manner in expelling a member who filed such a petition. The Board noted that "unless a union can expel a member who seeks its destruction during the pre-election campaign, the member could campaign against the union while remaining a member and therefore privy to the union's strategy and tactics." It noted also that an employee who seeks to decertify a union hardly values his membership and his expulsion would therefore not be an effective deterrent against resort to the Board's processes. That doctrine received court approval, 13 and was refined with a holding that a fine for filing a decertification petition is unlawful. 14 The rationale for the distinction was that a fine is punitive rather than defensive - that the "union is not one whit better able to defend itself against decertification as a result of the fine." (The member had not been expelled and, as his ability to work against his union while remaining privy to its tactics and strategy was unaffected, no defensive purpose was served by the fine).
Thus the Board recognizes a union's right to take minimal defensive measures against a dissident bent on its destruction through statutory means, but condemns any steps which would deter such conduct without otherwise enhancing the union's ability to thwart such an effort. But the Board does not recognize a union's right to employ such measures against a member who files an unfair labor practice charge which may reasonably be interpreted as a threat to its existence. Thus the Board refused to apply the Tawas Tube exception in a case involving a charge of unlawful assistance to the charging party's union. 15 The charge, if successfully prosecuted, would have adversely affected the union's bargaining relationship, and the union defended on the ground that expulsion was a proper response to an [ v29 p11 ] attack on its representation status. The Board rejected the defense on the ground that unfair labor practice charges, which require it to examine past events and determine whether the law has been violated, are very different from representation cases, which look to future elections concerning bargaining representatives. Such contests, said the Board, entitle a union to oust active opponents within their ranks who would undermine their solidarity. On the other hand permitting a union to penalize a member for filing a charge directly infringes upon the proper administration of the Act.
More importantly for our purposes, the Board not only rejected the claim that a charge of unlawful assistance is a direct attack upon the union's existence, but it said that it would draw no distinction between a charge of assistance and one of domination. It made no attempt to explore the ramifications of the fact that posed by a decertification petition. The distinction, of course, is that the charge requires examination of events which are history, and does not impact on choices which are to be made by unit employees.
The guidance from the private sector appears to be that the Tawas Tube doctrine is strictly limited to tile decertification petition, and is unavailable in a complaint case no matter how strong the analogy to be drawn in terms of the threat posed to the union's existence. An employee's right to bring about correction of a perceived wrong simply overrides the union's right to require loyalty.
The instant case is however, somewhat different than any of those discussed. Here Hanlon's charge was the precursor of a representation petition designed to oust his union as bargaining agent. The situation is, then, but one short step removed from Tawas, and unlike the cases examined, it involves the question whether a labor organization must tolerate an enemy within its ranks who files a charge as the entering wedge to decertification or displacement. That is, it presents the case of a member simultaneously attempting to subvert his organization and insisting on his right to retain his membership and be privy to the tactics and strategy of his union in its effort to defend itself against its rival.
It could be argued that the Supreme Court sub silentio overruled Tawas Tube when it held that those who invoke the statutory process for the resolution of labor disputes [ v29 p12 ] thereby enter the public domain and are beyond the reach of legitimate union concern and discipline. 16 But the Supreme Court spoke in a case involving an unfair labor practice charge, and one devoid of a threat to the union's existence. Here, as noted, the similarity to Tawas Tube is close: this case, although involving a charge, was pregnant with the prospect of decertification or its equivalent, and the Union's response to its threatened elimination was minimal and defensive. That is, threatened expulsion ought not be a strong deterrent to one who seeks to destroy the institution, and exclusion from meetings (and other internal sources of information) serves the purpose of depriving the dissident of the advantages of an insider in his effort to unseat the incumbent union. These considerations argue strongly, in my view, for the legitimacy of Respondent's conduct, for the impediment to access to the policing authority is weak and the defensive purpose of exclusion from the organization is very real and understandable. Nor is there here, as courts have noted in some private sector cases, any real threat that expulsion will impinge on employment opportunities so as to render it a punitive measure, coercive in the sense a fine is.
There is yet a further obstacle to a finding that the Tawas Tube doctrine may justify what was done here. It is that our Statute expressly protects petitioners against agency interference, unlike its analog at the Labor Board. Arguably, identical protection is extended, by implication, to the restraints on unions. 17 If, on the other hand, one views the NLRA as the model for our Statute, one assumes that Congress knew of, and approved of, the kind of exception recognized in Tawas Tube for a collective bargaining agent which takes the "minimal defensive measure" of expelling a member who seeks to end its existence. An employer has no conceivable justification for discriminating against a petitioner. The Board and Courts have found, in [ v29 p13 ] very limited circumstances, that a union is justified in resisting a member's "direct attack" upon its institutional existence. It seems to me to be to be the better part of wisdom to accept that distinction for purposes of administering this law, i.e., to recognize a union's right to expel, but not otherwise to coerce a member who seeks to destroy it in a way highly comparable to the filing of a decertification petition. A wooden transfer of the literal terms of Section 7116(a)(4) to Section 7116(b)(1), on the theory Congress must have intended that which it omitted to be the exact equivalent of that which it addressed, would eliminate even the Tawas Tube exceptions to the general interdiction of any interference with persons who invoke the procedures of the Authority.
In sum, very persuasive arguments can be made against extending the Tawas Tube doctrine to any case involving an unfair labor practice charge. I nevertheless recommend that the Authority take that step in the unique circumstances of this case. Hanlon sought, through the Authority's complaint processes, a more effective means of communicating to unit employees a message designed to end Respondent's existence as collective bargaining agent. The next step, in such an agenda, was to invoke the Authority's representation processes for purposes of displacing Respondent with NTEU. Respondent's limited and defensive response was a threat to expel him from membership for filing the charge which would initiate that course of action and facilitate achievement of that end. The charge filed here was a close counterpart to a decertification petition, i.e., it was an important element in a "direct attack upon" or challenge to his Union's existence. While any interference with his access to the channels created by Congress for the