30:0035(9)CO - - AFGE, AFL-CIO and SSA - - 1986 FLRAdec CO - - v30 p35

[ v30 p35 ]
The decision of the Authority follows:

30 FLRA NO. 9





Charging Party

Case No. 3-CO-20003
(17 FLRA 446)


I. Statement of the Case

This case is before the Authority pursuant to a remand from
the United States Court of Appeals for the District of Columbia
circuit. The Authority had requested remand of this case in light
of National Treasury Employees Union v. FLRA, 800 F.2d 1165
(D.C. Cir. 1986) (NTEU II), which the court decided after the
Authority's issuance of its original decision in this matter,
American Federation of Government Employees, AFL - CIO, 17 FLRA 
446 (1985). The question before us is whether it is an unfair
labor practice under the Federal Service Labor - Management
Relations Statute (the Statute) for the Respondent to charge
non-union member employees disparate fees to participate in a
civil action law suit under the Back Pay Act. We find that the
Respondent did not commit the unfair labor practices alleged and
vacate the Authority's previous decision in this case.

II. Background

In a recent Decision and Order in Fort Bragg Association of
Educators, National Education Association, Fort Bragg, North
Carolina, 28 FLRA 908 (1987), the Authority reviewed its
previous decisions concerning the scope of a labor organization's
duty of fair representation. The Authority concluded, in
agreement with the court in NTEU III and in National Treasury
Employees Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983) (NTEU
I), that "Congress adopted for government employee unions the
private sector duty of fair representation." Fort Bragg,
28 FLRA at 915. The Authority also determined that it will
analyze a union's responsibilities under section 7114(a)(1) of
the Statute in the context of whether the union's
representational activities on behalf of employees are grounded
in the union's authority to act as exclusive representative. Fort
Bragg, 28 FLRA at 918.

III. Discussion

In the underlying decision in this case, the Administrative
Law Judge found that section 7114(a)(1) of the Statute obliges an
exclusive representative to adhere to a standard of fair
representation only in those proceedings which are in the sole
control of the exclusive representative by virtue of its
certification. The Judge concluded that the Statute does not
impose such obligations in those proceedings which are available
to employees in general, and are supplementary to, but not a
substitute for, proceedings which are the sole prerogative of the
exclusive representative. American Federation of Government
Employees, 17 FLRA at 459. Consistent with the Authority's
decision in Fort Bragg, we conclude, in agreement with the Judge,
that the Respondent's action in charging non-union member
employees disparate fees to participate in a civil action law
suit under the Back Pay Act did not violate section 7116(b)(1)
and (8) of the Statute.

In this case, a question arose regarding whether the Social
Security Administration (the Agency) had been paying the
appropriate night differential to Baltimore, Maryland, bargaining
unit employees performing electronic data processing tasks in an
overtime status. After discovering the alleged underpayment,
several bargaining unit employees filed grievances under the
negotiated grievance procedure of the collective bargaining
agreement then in effect. The Respondent and the Agency met and
discussed the mechanics for processing the grievances. They
agreed to seek a ruling from the Comptroller General on the
overtime issue. They also established a task force to review the
background records and claims for backpay from the numerous

The Respondent's President became dissatisfied with the task
force's progress in handling the many grievances. To spur the
Agency to process the grievances more expeditiously, the
Respondent engaged an attorney to file a civil suit to obtain the
backpay. Consent forms were circulated among employees, asking
whether they wished to join in the litigation. One of the
Respondent's official publications also published a consent form
for participation in the suit, indicating a fee of 5
percent of any recovery for union members, and a 10 percent fee
for non-union members. A civil action suit against the Agency
seeking payment of the employees' night differential pay claims
was filed in the summer of 1981.

There was no dispute as to the liability of the Agency for
the overtime payments. The only question remaining was the
calculation of the amounts owed to the individual grievants. The
employees who grieved their overtime payment would not have
received any different amount of backpay based upon their
participation in the civil action. Although only the Respondent
could invoke arbitration on behalf of the employees under the
existing collective bargaining agreement, there was no need for
any of the grievances to proceed to arbitration, unless there was
a disagreement over the computation of the overtime. There is no 
mention in the record of the Respondent failing to invoke
arbitration. The Respondent did not intend the civil action to
replace or substitute for the grievance/arbitration mechanism of
the collective bargaining agreement. Rather, the civil action was
merely a means to spur the Agency to more expeditious processing
of the grievances.

The Judge found that the civil action was a route available
to all employees, and not within the sole control of the
Respondent. The Judge also found that the civil action was used
as a tool to expedite the processing of the grievances. Under
these circumstances, the Judge found that the civil action suit
constituted a benefit of Union membership as opposed to a right
flowing from the Union's status as exclusive representative. The
Judge concluded that the Respondent did not deny fair
representation to the non - Union me-hers by permitting the
attorney to charge different fees to the participants in the suit
depending on their membership in the Union.

Pursuant to section 2423.29 of the Authority's Rules and
Regulations and section 7118 of the Statute, we have reviewed the
rulings of the Judge made at the hearing and find that no 
prejudicial error was committed. The rulings are affirmed. Upon
consideration of the Judge's Decision and the entire record, and
consistent with the Authority's decision in Fort Bragg and the
court's decision in NTEU II, we find that the Judge properly
analyzed the case in the context of whether the Union's
representational activ