45:1004(103)CO - - AFGE Local 2344 and Carol Ramey - - 1992 FLRAdec CO - - v45 p1004

[ v45 p1004 ]
The decision of the Authority follows:

45 FLRA No. 103








(Charging Party/Individual)



August 31, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.1/

The complaint alleges that the Respondent/Union violated section 7116(b)(1) and 7116(c) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to process the dues authorization for a unit employee and denying him membership for reasons other than the failure to meet reasonable occupational standards uniformly required for admission or to tender dues uniformly required as a condition of acquiring and retaining membership, as provided by section 7116(c) of the Statute. For the reasons below, we find that the Respondent violated section 7116(c) of the complaint.

II. Preliminary Matter

Upon receipt of the Respondent's brief, the Authority issued an Order to Show Cause why the brief should be considered by the Authority in view of the fact that it appeared to be untimely filed. The brief was due on or before March 13, 1992. The Order noted that when filing documents with the Authority by mail, as here, the date of filing shall be determined by the postmark date. 5 C.F.R. § 2429.21(b). The metered postage stamp on the envelope is dated March 13, 1992. However, over the metered postage stamp appears a hand-cancelled postmark from the post office dated March 14, 1992.

In its answer to the Order, the Respondent stated that the brief was put in a mailbox at the post office at approximately 4:55 p.m. on Friday, March 13, 1992. The Respondent also stated that a sign on the mailbox stated that pick-up is scheduled every two hours until 11:30 p.m. on weekdays. These assertions are supported by an affidavit of the Respondent's deputy general counsel averring that he had delivered the envelope as asserted. The Respondent also submitted an affidavit by a staff member stating that on March 13 she prepared the envelope and delivered it to the Respondent's mail clerk who affixed postage to the envelope by postage meter. Finally, the Respondent submitted a declaration by a supervisor from the post office where the document was mailed, stating that mail "deposited prior to 8:00 p.m. on weekdays should be postmarked on the day of deposit in the box." Attachment to Respondent's Answer. Further, she stated that [m]etered mail collected at this office is not cancelled, or otherwise postmarked." Id. 2/

We conclude that the Respondent's answer to the show cause order establishes sufficient grounds for us to consider the brief. Section 2429.23(b) of the Authority's Rules and Regulations permits the Authority to waive any expired time limit, with exceptions not relevant here, in extraordinary circumstances. In our view, the affidavits submitted by the Respondent averring that the brief was placed in the mail on March 13, in a manner that should have resulted in the timely filing of the brief, together with the unusual circumstance of the Postal Service having hand-cancelled the meter-dated stamp marked March 13 with a postmark dated March 14, present extraordinary circumstances. Accordingly, we have waived the time limit and have considered the brief.

III. Facts

The Respondent is the exclusive representative of a unit of employees of the Veterans Affairs Medical Center, Huntington, West Virginia. Kenneth R. Combs has been an employee in that unit at all times material to this case. At all times material to this case Carl H. Blevins has been president of the Respondent and its agent.

On or about May 8, 1991, Combs submitted to the Respondent an executed Form SF-1187, "Request and Authorization for Voluntary Allotment of Compensation For Payment of Employee Organization Dues." On or about May 21, 1991, Blevins notified Combs, in writing, that his membership request had been rejected by the Respondent. In the notification, Blevins stated that "the membership voted not to accept you as a member due to your conduct being detrimental or inimical to the best interest of the [U]nion." Joint Exhibit 6. The notification stated further that "[y]our actions toward [the Union] had you been a member would have resulted in your expulsion from the [U]nion." Id.

The Respondent had held a membership meeting on May 16, 1991, and, according to the minutes of that meeting, the members unanimously denied the membership application.3/ The Respondent based the denial of membership on reports by members of the Union about statements by Combs denigrating the Union and its officers, all made before the application for membership and at a time when he was not a member of the Respondent. According to one of those reports, Combs often told anyone who would listen that the Union "is a big joke [and] can help no one," and that the officers use it "just to get out of work . . . ." Joint Exhibit 8 at 1. In addition, the report stated that Combs "has gone as far as to tell employees to get out of the Union and to even stop people from joining." Id. According to the report, Combs also made derogatory racial references about a fellow employee in connection with Combs' alleged public attacks on the Union. The record contains other statements by Union members reporting similar observations of conduct by Combs that was viewed as detrimental to the Union, including claims that he planned to "get inside of [the Union]" and "tarry [sic] it up from the inside[.]" Joint Exhibit 9.

It is undisputed that membership was not denied because Combs failed to meet reasonable occupational standards or to tender dues as provided in section 7116(c) of the Statute.4/

IV. Positions of the Parties

A. Respondent

In setting out its position, the Respondent links the reports of derogatory and damaging remarks by Combs with the Union's constitutional authority to elect or reject eligible members. These facts, it maintains,

place in clear perspective the conflicting interests inherent in §7116(c)'s language; (a) the interest of the unit member in being able to join the union and thereby to participate in the administration and performance of the union's statutory rights and duties, and (b) the interest of the union members in preserving -- by means of the standards set for the admission of members -- the reputation of the union, the integrity of its operation, and its ability to perform its statutory responsibilities.

Respondent's Brief at 8. It argues that "the substantial interest in affording the unit member union participation rights, as reflected in the Statute's seeming to limit to only two the exceptions to the right of union membership[,]" must be balanced against "the equally substantial interest in sustaining the viability of the [U]nion as an organization." Id. The Respondent argues that the balance should be struck in the Union's favor

[w]here, as here, the [U]nion followed its constitutional provisions on voting regarding membership applicants and reasonably based its rejection of an applicant on undisputed facts establishing both the applicant's threats to the very integrity of the [U]nion and the applicant's racial epithets directed against a [U]nion officer[.] [Emphasis in original.]


The Respondent argues that the Statute does not provide "the absolute right of admission to the [U]nion." Id. at 9. Rather, it contends that various facts make it reasonable that the Respondent should be permitted to deny membership to an applicant despite the language of section 7116(c). The Respondent argues that Combs' threats to destroy the Union from the inside and his use of racially disparaging epithets amount to misconduct that justify excluding him from the Respondent's organization. In this regard, the Respondent cites Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 26 FLRA 114 (1987), (Veterans Administration Medical Center), aff'd sub nom. American Federation of Government Employees, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989), in which the Authority found that an agency did not violate section 7116(a)(1) and (2) by reprimanding a union official for using derogatory racial comments to refer to a management official. The Respondent contends that Combs' "racial name-calling . . . removes him from the protection of §7116(c), just as use of even milder racial epithets removed the union president from the protection of §7102" in Veterans Administration Medical Center. Respondent's Brief at 11. Finally, the Respondent argues that "§7116(c) should not be read to eviscerate totally the interests of the [U]nion in self-preservation in favor of the right of a racial bigot to join the [U]nion for the express purpose of destroying it 'from the inside.'" Id. at 12.

B. General Counsel

The General Counsel contends that refusal to accept a unit employee's application for membership violates section 7116(c) of the Statute unless it is based on one of the two reasons enumerated in that section. The General Counsel draws a distinction between disciplining a member, which is contemplated by the final paragraph of section 7116(c), and denying membership to an applicant. According to the General Counsel, "[a] labor organization cannot discipline a non-member; nor may a labor organization condition membership on anything other than an applicant's failure[]" to meet occupational standards or to tender dues. General Counsel's Brief at 4. The General Counsel states that the Authority "adopted this very concept" in American Federation of Government Employees, AFL-CIO, Local 2000, 4 FLRA 601 (1980).

The General Counsel alleges that denial of membership under these circumstances also violated section 7116(b)(1) of the Statute.

V. Analysis and Conclusions

As noted, section 7116(c) provides that it is an unfair labor practice for an exclusive representative to deny membership to a unit employee "except" for failure to meet occupational standards uniformly required for admission or failure to tender dues. The parties have stipulated that the Respondent's denial of membership was based on neither of these factors. Accordingly, we find that the Respondent violated section 7116(c) of the Statute by denying membership to a unit member for reasons other than those permitted by the Statute.

The Respondent incorrectly insists that we may strike a balance between the interests of the employee in participating in the activities of the exclusive representative and the interests of union members in preserving its reputation, integrity, and ability to perform its statutory duties. The statutory language clearly sets out two exceptions to the right of union membership. Just as clearly, it limits the exceptions to those two circumstances and mandates that it shall be an unfair labor practice to deny a unit employee membership for any other reason. There is nothing in the legislative history that suggests the language means anything other than what it plainly says.5/

The Respondent also argues that Combs' alleged misconduct involving plans to tear down the Union "from the inside" and engaging in "egregious racial speech[,]" Respondent's Brief at 10, "removes him from the protection[s] of [section] 7116(c)[.]" Id. at 11. In support of this position, it notes that the use of derogatory racial comments about a manager removed the union president from the protections of section 7102 in Veterans Administration Medical Center and argues that similarly the racial name-calling in this case removed Combs from the protection of section 7116(c). That case, however, is inapposite. In establishing that employees have the right to form, join, or assist a labor organization, section 7102 does not address the scope of the conduct that will be protected in the course of such activity. Therefore, the Authority has been required to do so. See, for example, Department of the Navy, Naval Facilities Engineering Command, Western Division San Bruno, California, 45 FLRA 138, 155-57 (1992) petition for review filed as to other matters sub nom. National Federation of Federal Employees v. FLRA, No. 92-1345 (D.C. Cir. Aug. 8, 1992) (Member Armendariz dissenting in pertinent part), (the Authority determined that in the circumstances of that case offensive ethnic references were not removed from the ambit of protected activity); Veterans Administration Medical Center (the Authority determined that in the circumstances of that case derogatory racial comments were unprotected by section 7102). In contrast, section 7116(c) specifically limits the reasons for which a union can deny membership. Misconduct of a unit employee, no matter how opprobrious, is not among those reasons, and, as noted, section 7116(c) makes it an unfair labor practice to deny membership "except for" the enumerated reasons.

Finally, we are not persuaded by the Respondent's argument that the General Counsel's reading of section 7116(c) would require it to admit to membership an employee "who admittedly was determined to destroy the union 'from the inside.'" Respondent's brief at 12. Assuming arguendo the accuracy of Respondent's characterization of Combs' activities, we reiterate that this does not provide an acceptable basis under section 7116(c) for denying membership to an otherwise qualified unit employee. We note that once Combs has been admitted to membership he will be subject to discipline by the Union for subsequent misconduct consistent with the requirements of section 7116(c).

In view of the foregoing, we conclude that the Respondent violated section 7116(c) as alleged, and we shall issue an appropriate remedial order.6/

VI. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and se