49:0738(71)CO - - NFFE, Local 1827 and Catherine Bratton - - 1994 FLRAdec CO - - v49 p738
[ v49 p738 ]
The decision of the Authority follows:
49 FLRA No. 71
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER
April 15, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the General Counsel's exceptions.
The complaint alleged that the Respondent violated section 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed to comply with section 7114(a)(1) of the Statute by not permitting non-Union members of the bargaining unit to participate in a poll concerning the method of determining seniority to calculate seniority-based benefits. The Judge found that the Respondent did not violate the Statute as alleged, and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with this decision. Contrary to the Judge, we conclude that the Respondent violated the Statute as alleged.
The facts, which are fully set forth in the Judge's decision, are undisputed. Briefly, they establish that the Respondent is the exclusive representative of a unit of employees at the Defense Mapping Agency, Aerospace Center, St. Louis, Missouri (Agency), including employees in the Agency's Graphic Arts Negative Engraving Division (GAN). In March 1986, the Respondent and the Agency entered into a collective bargaining agreement that grants the Respondent the discretion to determine the method of computing seniority among unit employees for certain purposes. More specifically, Article 60 provides, as relevant here:
60-1 When the use of seniority as defined by an employee's Federal [Service Computation Date] is not mandated by law or government-wide regulations and is not otherwise specified in this Agreement, seniority will be determined by the employee and/or the Union, at the option of the Union, for the purpose of application of this Agreement.
60-2 It is agreed that the same method of computing seniority must be applied to all employees in any given work group when the employees would be competing with each other for seniority-based benefits enumerated in the Agreement, such as shift preference, overtime, leave, etc.
Judge's Decision at 3 (emphasis omitted). In at least five areas covered by parties' agreement, seniority, as determined by the Respondent, is used to determine employee rights and benefits. These areas are the selection of days off and vacations, the selection of 8-hour days for compressed work schedules, overtime, training and details.
Consistent with Article 60-1, the Respondent had, for many years, polled unit employees to determine the type of seniority they preferred. Prior to October 1, 1991, seniority among GAN employees was based on continuous employment with the Agency. Because it had been several years since the last employee poll and the work force in GAN had significantly changed, a number of employees requested that the Respondent conduct another poll. As a result, on August 1, 1991, the Respondent began a poll of its members to determine the type of seniority to be used for calculating seniority-based benefits. The Charging Party, who was at that time a negative engraver inspector, requested to vote on the issue. She was refused an opportunity to vote specifically because she was not a Union member. Indeed, the Respondent acknowledges that all non-member unit employees were denied the opportunity to vote on the matter precisely because of their lack of membership in the Union.
Because the results of the first poll were inconclusive, a second poll of Union members was conducted. Thereafter, by letter dated September 17, 1991, the Respondent advised the Agency that the majority of its members preferred that the length of employment in GAN be used to calculate all seniority-based privileges. The Respondent further advised the Agency that:
GAN time will be used for selection of [Compressed Work Schedule] days off and 8 hour day [sic] will be effective now. Overtime, training, details, temp. promotions, etc. effective beginning Oct. 1, and vacation schedules effective starting Jan. 1, 1992.
Jt. Exhibit 7.
Since October 1, 1991, the Agency has determined seniority-based benefits for all GAN unit employees on the basis of their date of hire in GAN.
III. Administrative Law Judge's Decision
The Judge concluded that the Respondent's failure to permit non-Union members to participate in the poll did not violate the Statute and recommended that the complaint be dismissed.
In reaching this result, the Judge found that the scope of the duty of fair representation under section 7114(a)(1) of the Statute closely parallels the judicial formulation of the duty in the private sector. The Judge noted that in Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908 (1987) (Fort Bragg), the Authority concluded that in order to determine whether a union had fulfilled its duty of fair representation, a union's responsibilities under section 7114(a)(1) must be analyzed in the context of whether the union's representational activities on behalf of employees were grounded in the union's authority to act as exclusive representative. The Judge further noted that the Authority also concluded that where a union is not acting as the exclusive representative, the duty of fair representation does not apply. The Judge then reviewed the history of the doctrine in the private sector citing, among other cases, Air Line Pilots Association, International v. O'Neill, 111 S. Ct. 1127 (1991) (ALPA v. O'Neill).
Applying the above-stated principles to the facts of this case, the Judge found that in selecting the type of seniority to be used for determining seniority-based benefits, the Respondent "acted as the exclusive representative of unit members and there is no question that it was subject to the duty of fair representation." Judge's Decision at 14. Pursuant to this duty, the Judge further found that the Respondent could not act in a manner that was contrary to the interests of non-Union members. Nevertheless, the Judge rejected the General Counsel's position that a union cannot resort to the views of its members concerning the exercise of a contractually delegated power to establish a condition of employment "unless it permits all members of the bargaining unit to take part in the decision to act." Id. In arriving at this finding, the Judge specifically relied on Professional Air Traffic Controllers Organization, MEBA, AFL-CIO, Local 301, Aurora, Illinois, 7 A/SLMR 896 (1977) (PATCO); American Federation of Government Employees, Local 2000, AFL-CIO, 14 FLRA 617 (1984) (AFGE, Local 2000); and National Labor Relations Board v. Financial Institution Employees of America, 475 U.S. 192, 205 (1986) (Financial Institution Employees).
The Judge found that although PATCO was decided under Executive Order 11491, Section 10(e) of the Executive Order is substantially similar to section 7114(a)(1) of the Statute.(1) In that case, the Assistant Secretary of Labor, in adopting the decision of the judge, concluded that the union did not commit an unfair labor practice by refusing to allow non-union employees to participate in a vote on whether to change certain employees' work schedules. In reaching that result, the Assistant Secretary reasoned that under Section 10(e),
a union's actions are weighed against the widely recognized right of a union to maintain control over its own internal affairs. This right includes affording a union broad latitude in fulfilling its representational obligations in negotiating and administering agreements on behalf of all unit employees in a manner it deems appropriate under the circumstances, so long as the union action is not shown to be arbitrary, discriminatory or in bad faith.
Id. at 16.
The Judge further found that, in AFGE, Local 2000, the Authority dismissed portions of a complaint alleging that the union had violated the Statute by refusing to permit non-union members to participate in a contract ratification vote. The Judge noted particularly the Authority's statement that:
All employees are entitled to vote in determining whether there is to be union representation; but once a labor organization is chosen as the exclusive representative, the labor organization then acts for, and negotiates collective bargaining agreements covering, all employees and its members ratify and approve such agreements in the manner provided by the labor organization's governing requirements. . . .
Id. at 18.
Finally, the Judge noted that in Financial Institution Employees, the Supreme Court held that "dissatisfaction with representation is not a reason for requiring the union to allow nonunion employees to vote on union matters like affiliation. Rather, the [National Labor Relations] Act allows union members to control the shape and direction of their organization, and '[n]on-union employees have no voice in the affairs of the union.'" Id. at 18-19.
Next, the Judge addressed the fact that both the General Counsel and the Respondent had relied on the decision of the National Labor Relations Board (Board) in Branch 6000, National Association of Letter Carriers, 232 NLRB 263 (1977) (Letter Carriers I) to support their respective positions. According to the Judge, in that case the employer and the union had executed a memorandum of agreement providing that the letter carriers could vote on the issue of fixed or rotating days off. The Board held that the union committed an unfair labor practice by subsequently excluding employees who were not members of the union from attending the meeting at which the vote was taken. The Judge quoted the Board's holding that the exclusion of non-union employees was unlawful because the decision as to days off "[was] not a matter that was exclusively within the internal domain of the Union" and that "[l]imiting to union member unit employees only the right to participate in a referendum which determines an aspect of working conditions necessarily discriminates against nonunion unit employees." Id. at 19-20. In a footnote quoted by the Judge, the Board distinguished a union vote on the ratification of a contract from a vote on a work schedule, which became a "substitute for negotiation" and thereby "eliminated from the situation the union representation element and with it the propriety of limiting to union members a voice in the choice." Id. at 20 n.1.
The Judge noted that the decision of the Board in Letter Carriers I was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit in Branch 6000, National Association of Letter Carriers v. National Labor Relations Board, 595 F.2d 808 (D.C. Cir. 1979) (Letter Carriers II). The Judge also observed that this decision had most recently been applied by the Board in International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmith Forgers and Helpers, Local 202, 300 NLRB 28 (1990) (Boilermakers, Local 202) and American Postal Workers Union, Pittsburgh Metro Area Postal Workers Union, AFL-CIO, 300 NLRB 34 (1990) (American Postal Workers). In this connection, the Judge discussed the General Counsel's argument that the instant case fits precisely within the Board's rationale in Letter Carriers I because the poll of GAN union members served as a substitute for negotiation with management. In addition, the Judge discussed the argument made by the Respondent that its selection of the method of calculating seniority was simply a negotiating proposal.
Contrary to the Respondent's assertions, the Judge found, based on the evidence before him, that "[t]here were no negotiations" with the Agency concerning the Respondent's decision to base seniority on an employee's time in GAN. Judge's Decision at 26. Furthermore, the Judge found that, under the rationale enunciated by the Board in Letter Carriers I and its progeny, the Respondent's failure to permit non-Union members to vote on the issue of seniority would warrant a finding that the Respondent had violated section 7116(b)(1) and (8) of the Statute. Nevertheless, the Judge concluded that both the Board and the court in Letter Carriers I and Letter Carriers II had "misconceived and/or misapplied the duty of fair representation[,]" and he recommended that this precedent not be adopted. Id. at 28. According to the Judge, "when a majority of the employees selects an exclusive representative, the exclusive representative is then entitled to act for all employees in the unit; and those who elect not to join the exclusive representative give up their right to a voice in the affairs of the union." Id. at 30. Finding no evidence that the Union's action was either discriminatorily motivated or discriminatory in effect, the Judge recommended that the complaint be dismissed, consistent with the rationale set forth in PATCO.
IV. General Counsel's Exceptions
The General Counsel maintains that the Judge erred in failing to conclude that the Respondent violated section 7116(b)(1) and (8) by conducting the members-only poll and thereafter directing the Agency to calculate seniority in accordance with the outcome of the poll. The General Counsel asserts that "where a condition of employment is left to the sole discretion of the [union] and the union conducts a poll of unit employees the results of which ultimately determine that condition of employment, the union must poll all members of the bargaining unit, not just union members." Brief to Exceptions at 3 (emphasis omitted).
In support of its position, the General Counsel argues that the decision of the Assistant Secretary in PATCO can be readily distinguished. According to the General Counsel, the union in PATCO used a members-only poll solely for the purpose of determining the bargaining position that it would take in subsequent negotiations with management, while in this case the Respondent used such a poll, without negotiating with the Agency, to dictate the manner in which seniority would be calculated for all unit employees.
The General Counsel further asserts that the decision of the court in Letter Carriers II is more directly on point with the instant case. The General Counsel notes that the U.S. Court of Appeals for the District of Columbia, in affirming the decision of the Board, relied particularly on the fact that the union in that case adopted the outcome of the union members' referendum regarding the days-off policy to be instituted by the employer without further negotiations with the employer, and that "this was an abdication of the representative function that violated the duty of fair representation. . . ." Brief to Exceptions at 5 (emphasis in original). According to the General Counsel, the court in Letter Carriers II was careful to distinguish the case before it from "a poll of the union membership to ascertain its views" prior to formulating a negotiating posture for the bargaining unit. Id. at 6 (emphasis omitted).
The General Counsel also notes that the Board has further clarified its Letter Carriers I decision in American Postal Workers and Boilermakers Local 202. The General Counsel points out that in American Postal Workers the Board found that a union did not violate the Act by refusing to permit nonmember unit employees to attend a union meeting because there was no evidence that the union had established a procedure to which nonmembers were denied access as a "substitute for negotiations[,]" or that the union had delegated its decision-making power as the exclusive representative. Id. at 7. The General Counsel contrasts that case with Boilermakers, Local 202, in which the Board found that the union had violated the Act by conducting a members-only poll as a "substitute for negotiation" in choosing a floating holiday for the bargaining unit.
The General Counsel argues that the instant case fits precisely into the Board's rationale for finding violations in Letter Carriers I and Boilermakers, Local 202 because the poll of Union members in this case also served as a substitute for negotiation with the Agency. The General Counsel asserts that because the parties' agreement grants the Union complete discretion to determine the type of seniority to be used for determining seniority-based benefits, the Union has "abdicated" its "representative function" by allowing the votes of its members to be determinative. Id. at 10. The General Counsel urges the Authority to adopt the private sector precedent and find that the Respondent breached its duty of fair representation in violation of section 7116(b)(1) and (8).
Finally, the General Counsel asserts that the Judge's reliance on Financial Institution Employees and ALPA v. O'Neill is misplaced because those cases are not applicable to the facts of this case.
As a remedy, the General Counsel seeks a cease and desist order as well as certain affirmative actions, including a return to the status quo ante and make-whole relief for all employees who suffered any loss of pay as a result of the implementation of GAN time as the method of calculating seniority.
V. Analysis and Conclusions
Section 7114(a)(1) of the Statute provides, in pertinent part, that:
An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.
By this provision, "Congress adopted for government employee unions the private sector duty of fair representation." National Treasury Employees Union v. FLRA, 800 F.2d 1165, 1171 (D.C. Cir. 1986); Fort Bragg, 28 FLRA at 916. Consistent with section 7114(a)(1) of the Statute, and the scope of the duty of fair representation in the private sector, union representational activities grounded in the union's status as exclusive representative must be undertaken without discrimination and without regard to labor organization membership.
It is now well established that "[w]here it is alleged that a union failed to comply with section 7114(a)(1) by discriminating on the basis of membership in the union, the Authority first determines whether the union's disputed activities were undertaken in the union's role as exclusive representative of unit employees." U.S. Air Force, Loring Air Force Base, Limestone, Maine and American Federation of Government Employees, AFL-CIO, Local 2943, 43 FLRA 1087, 1094 (1992). See also Antilles Consolidated Education Association, (OEA/NEA) San Juan, Puerto Rico, 36 FLRA 776 (1990) (Antilles); Fort Bragg. If the activities were undertaken in that role, then the duty of fair representation under section 7114(a)(1) "attache[s]" and the Authority determines whether the union unlawfully discriminated on the basis of union membership. Antilles, 36 FLRA at 791.
In Antilles, the Authority concluded that the union was acting in its capacity as exclusive representative when it negotiated the right to administer certain insurance plans for unit employees. Having undertaken this role through collective bargaining, the union was obligated to administer those plans "without discrimination and without regard to labor organization membership." Id. at 790.
This formulation of the duty of fair representation is consonant with that expressed by the court in Letter Carriers II. There, the court stated that the duty of fair representation imposes on the bargaining agent a responsibility to fairly represent the interests of all unit employees "in good faith and without arbitrariness or invidious discrimination." 595 F.2d at 811. In the court's view, although this responsibility may be delegated, once the delegatee has been selected, it must function as a representative for all the employees in the bargaining unit, and if its decisions "are motivated solely by self-interest, then there is a breach of the duty of fair representation." Id. at 812. In addressing the facts of the case before it, the court found that in conducting a referendum on the issue of fixed or rotating days off, it was contemplated that each union member would vote his personal preference and that the union would adopt the outcome of the referendum without further negotiations with the employer. In finding that the Board did not exceed its discretion when it concluded that this was an abdication of the union's representative function that violated the duty of fair representation, the court reasoned that the "ultimate decisonmaker--the union membership--did not function in a representative capacity." Id. Rather, the court determined that "[t]he referendum merely computed the composite personal preferences of individual union members without consideration of the views or interests of non-union employees." Id.
In this case, the Judge found that the Respondent "acted as the exclusive representative of unit members and there is no question that it was subject to the duty of fair representation." Judge's Decision at 14. The Judge further acknowledged that, pursuant to this duty, the Respondent could not act in a manner that was contrary to the interests of non-Union members. Nevertheless, the Judge concluded that the Respondent's failure to permit non-Union members of the bargaining unit to participate in a poll concerning the method of calculating seniority to be used for determining seniority-based benefits did not violate the Statute. We cannot agree and find that, by this conduct, the Respondent breached its duty of fair representation in violation of section 7116(a)(1) and (8).
At the outset, we note that in finding that the Respondent's conduct was not contrary to its duty of fair representation, the Judge appears to have concluded, without expressly stating, that the matter here at issue was exclusively within the province of the Respondent's internal affairs. Thus, in support of his decision, the Judge specifically relies on Financial Institution Employees for the proposition that union members have the right to control the shape and direction of their organization and that non-union members have no voice in a union's internal affairs. The Judge additionally relies on AFGE, Local 2000, which also involved internal union matters, including participation in negotiations and a contract ratification vote.
Contrary to the Judge, we conclude that the administration of the contract clause granting the Respondent the discretion to determine the type of seniority to be used for calculating seniority-based benefits, without further negotiations with the Agency, directly affected all unit employees and, therefore, was not a matter relating to the Respondent's internal affairs. Rather, we conclude that, like the situation in Antilles, the Respondent undertook in its bargaining agreement the obligation to administer the system of seniority to be used for determining certain seniority-based benefits. Applying the rationale of Antilles to the circumstances of this case, the Respondent was required to administer that system in a manner that did not discriminate on the basis of Union membership. When it polled only its members to determine the method of computing seniority, the Respondent neglected the interests of the nonmembers who would be affected by the new computations.
Consistent with the reasoning of the court in Letter Carriers II, we find that, in the circumstances of this case, the Respondent abdicated its representative function by conducting a poll only of Union members, and thereby breached its duty of fair representation under section 7114(a)(1) of the Statute. In so finding, we agree with the General Counsel that PATCO, in which the union took a poll of its members to determine a negotiating proposal, is distinguishable from the instant case. Similarly, cases involving ratification of an otherwise agreed-upon contract are distinguishable because "[ratification] settles no term or condition of employment [but] merely calls for an advisory vote . . . ." National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 350 (1958). See also Letter Carriers I, 232 NLRB at 263, n.1 (distinguishing the ratification of a collective bargaining agreement, deemed "an internal union matter," from polling used as "a substitute for negotiation"). Accordingly, we conclude that by its conduct the Respondent violated section 7116(b)(1) and (8).
In its exceptions, the General Counsel requests, among other things, a return to the status quo ante, including make-whole relief for all employees who suffered any loss of pay as a result of the Respondent's unlawful conduct.
We note, in this regard, that Congress has entrusted the Authority with the responsibility to take any remedial action it considers appropriate to carry out the policies of the Statute. National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990). We further note that the purpose of a make-whole remedy is to place individuals who have been adversely affected by an improper action in the situation they would have been if the improper action had not occurred. Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas and American Federation of Government Employees, AFL-CIO, National Council of Social security Administration-Field Operations Locals, 32 FLRA 521, 525 (1988).
In this case it is clear that the Respondent's unlawful conduct interfered with the employees' terms and conditions of employment, which the Statute seeks to protect. It is also clear that, in the circumstances of this case, the issuance of a make-whole order will restore the status quo ante and mitigate the inhibiting effect of the Respondent's improper acts. We therefore conclude that in order to fully effectuate the purposes and policies of the Statute, it is appropriate to direct the Respondent to restore the status quo ante as of October 1, 1991,(2) and to make whole any employee who is determined to have suffered a loss of pay, benefits or differentials as a result of the Respondent's unlawful conduct. See Bowen v. United States Postal Service, 459 U.S. 212 (1983) (Supreme Court found backpay appropriate as a remedy for the union's breach of its duty of fair representation); see also Local 282, International Brotherhood of Teamsters, 267 NLRB 1130, 1131 (1983), enforced, 740 F.2d 141 (2d Cir. 1984) (union required to make employees whole for work lost because of the union's failure to notify laid-off employees of an arbitration award that altered the requirements they needed to fulfill in order to maintain their seniority); International Association of Machinists and Aerospace Workers, Local 39, AFL-CIO, 24 FLRA 352 (1986) (union ordered to pay unit employee amount of earnings lost during his suspension where union had failed to timely file grievance on employee's behalf).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Respondent, National Federation of Federal Employees, Local 1827, shall:
1. Cease and desist from:
(a) Denying unit employees who are employed in the Graphic Arts Negative Engraving Division, Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, and who are not members of the Union the opportunity to participate in a poll concerning the type of seniority to be used for calculating seniority-based benefits.
(b) Interfering with, restraining or coercing employees in the exercise of their rights to