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48:0900(95)CO - - AFGE, Local 1857, (Sacramento Air Logistics Center, North Highland, CA) and Eloise F. Holdahl - - 1993 FLRAdec CO - - v48 p900

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[ v48 p900 ]
The decision of the Authority follows:

48 FLRA No. 95











(Charging Party/Individual)


(46 FLRA 904 (1992))




November 19, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions filed by the Union to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Union's exceptions.

The case concerns an application for attorney's fees under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, made by the Union, which prevailed in the underlying unfair labor practice case reported at 46 FLRA 904 (1992).(*) The application was made pursuant to part 2430 of the Authority's Rules and Regulations.

The Judge found that the position of the General Counsel in prosecuting the underlying unfair labor practice case was substantially justified, and recommended that the Authority reject the Union's application for attorney's fees.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's decision and find that no prejudicial error was committed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions, and his recommended action.

In order to avoid the imposition of attorney's fees under the EAJA, the General Counsel has the burden of proving that his position was "substantially justified." 5 U.S.C. § 504(a)(1). The U.S. Supreme Court has stated that "substantially justified" means having a "reasonable basis both in law and fact[,]" or "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). As there were no facts in dispute, the only question before us is whether the General Counsel propounded a theory that has a reasonable basis in law. In this regard, we note that in American Federation of Government Employees, Local 495, AFL-CIO (Veterans Administration Medical Center, Tucson, Arizona), 22 FLRA 966 (1986), the Authority stated that the EAJA was not intended to deter the General Counsel from advancing "novel or untested legal theories and cases . . . ." Id. at 977.

We agree with the Respondent that the statutory issue in this case is "well-settled and easily understood: A union has no duty of fair representation as to matters in which it is not acting as an employee's exclusive representative." Brief to Exceptions at 4. Thus, consistent with Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908 (1987) and Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, 36 FLRA 776 (1990) (Antilles), the only finding necessary for a determination of whether the Union violated the Statute by failing to represent the Charging Party under the General Counsel's primary theory of violation is whether, as a matter of law, the Union was required to act as the employee's exclusive representative in connection with the proposed disciplinary action. As the Judge stated, "the Union was clearly not the exclusive representative of the affected employee for this action." Judge's decision at 4-5. Accordingly, we conclude that the General Counsel did not have a reasonable basis for maintaining the first theory of violation.

However, the General Counsel also argued, as an alternative theory, that the Respondent had assumed certain obligations as a result of the parties' negotiated collective bargaining agreement. That theory relied on Antilles, in which the Authority held that a union had a duty to represent nonmembers in administering a health care plan because it had negotiated the exclusive right to administer the plan. In this case, the Union had negotiated certain procedural rights concerning discipline, including provisions concerning the content of notices of proposed disciplinary actions and the right to official time if the Union were chosen to represent the employee. See 46 FLRA at 905. The Authority distinguished this case from Antilles because in this case the employees had certain statutory and regulatory protections and because the negotiated agreement specifically excludes proposed disciplinary actions from the negotiated grievance procedure and, thus, "does not purport to govern the full scope of rights accorded to employees regarding proposed disciplinary actions." Id. at 914. Nonetheless, as the Judge correctly noted, "at some stage" the negotiated grievance procedure would be available to unit employees to challenge such discipline. Judge's decision at 5. Accordingly, the Judge found, and we agree, that there is a "facial appearance, somewhat akin to Antilles, of redress of discipline imposed by the agency through the Union negotiated agreement." Id. Consequently, we agree with the Judge that, under Authority precedent, the General Counsel's alternative contractual theory was reasonable, and, therefore, that it was substantially justified.

II. Order

The application for attorney's fees is dismissed.

(If blank, the decision does not have footnotes.)

*/ In the underlying case, the Authority concluded that the Respondent Union had not violated section 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it refused to represent the Charging Party, who was not a member of the Union, in connection with a proposed disciplinary action. The Authority's conclusion was based on a finding that the Respondent had neither a statutory nor a contractual duty to represent unit employees who were not Union members in proposed disciplinary actions.