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59 FLRA No. 19
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
GRAND COULEE POWER (PROJECT) OFFICE
GRAND COULEE, WASHINGTON
PATRICK J. RUNNELS, AN INDIVIDUAL
COLUMBIA BASIN TRADES COUNCIL
DECISION AND ORDER
September 5, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on the General Counsel's (GC) exceptions to the attached decision of the Administrative Law Judge granting the Union's, as intervenor, motion for summary judgment and denying the GC's motion for summary judgment. The Judge found that the Respondent did not violate § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with the Charging Party's right under 5 U.S.C. § 7102. In this regard, the Judge found that the Respondent's failure to recognize the Charging Party's attorney representative was permitted under the parties' collective bargaining agreement. The Union filed an opposition to the GC's exceptions.
Upon consideration of the Judge's decision, the GC's exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision.
II. Background and Judge's Decision
The Respondent issued a notice of a proposed seven day suspension to the Charging Party, a prevailing rate employee. In response, the Charging Party retained an attorney not approved by the Union, who advised the Respondent that he was representing the Charging Party with respect to the proposed suspension in accordance with 5 U.S.C. § 7503. [n2] The Respondent repeatedly refused to recognize the Charging Party's attorney representative, claiming that under Article VII, Section 7.1(E) of the parties' agreement, the Charging Party is permitted only to represent himself or to have a Union or Union-approved representative. [n3]
The GC issued a complaint alleging that the Respondent violated § 7116(a)(1) of the Statute by failing to comply with 5 U.S.C. § 7102, which the GC argued "protects the right of employees to refrain from seeking the assistance of the union." [n4] Complaint at ¶ 18.
Prior to hearing, the GC filed a motion for summary judgment, alleging that there were no genuine issues of material fact in dispute and that a response to a proposed suspension of 14 days or less involves rights under chapter 75 of title 5. The Respondent and Union filed oppositions to the motion, and the Union filed a cross-motion for summary judgment, asserting that the parties' agreement precluded an employee from having an attorney representative in responding to proposed suspensions unless the attorney was approved by the Union. The Charging Party filed a response in opposition to the Union's motion and in support of the GC's motion, asserting that he was entitled to an attorney representative under § 7503.
The Judge denied the GC's motion for summary judgment and granted the Union's cross-motion for summary judgment, concluding that the Respondent did not violate the Statute as alleged. Without addressing [ v59 p102 ] whether the employee rights set forth in § 7102 were implicated, the Judge found that the Respondent did not violate the Statute because it was complying with Article VII, Section 7.1(E) of the parties' agreement. Decision at 11.
In reaching that conclusion, the Judge noted that Article VII, Section 7.1(E) is essentially the same as a provision the Authority found negotiable in AFGE, AFL-CIO, Local 1858, 27 FLRA 69 (1987). Id. at 10 n.2. The Judge found that Article VII, Section 7.1(E) is enforceable under § 9(b) of the Prevailing Rate Systems Act (PRSA) and § 704(a) of the Civil Service Reform Act (CSRA) without regard to any provisions of the Statute because the Respondent and the Union negotiated the "issue of representation" set forth in that provision prior to August 19, 1972. Decision at 11.
Based on the foregoing, the Judge recommended that the complaint be dismissed.
III. Positions of the Parties
A. GC's Exceptions
The GC claims that the Judge erred in: (1) failing to find that the Respondent interfered with the Charging Party's right to refrain from seeking the assistance of the Union under § 7102 of the Statute; (2) finding that the negotiated grievance procedure includes matters at the proposed suspension stage and that the parties bargained over representation with respect to proposed suspensions; (3) failing to recognize that the Charging Party had a right to select any personal representative under 5 U.S.C. § 7503(b)(3) in connection with the proposed suspension; and (4) implying that employee rights under § 7503(b) can be eliminated by § 704 of the CSRS.
B. Union's Opposition
The Union asserts that § 7102 of the Statute does not apply in this case because at all times, the Charging Party was free to represent himself and decline the assistance of the Union. The Union further argues that nothing in § 7102 entitles employees to representation of their choosing. The Union also asserts that to the extent that the GC is claiming that § 7503(b) was violated by the failure to permit the Charging Party to have an attorney representative, such violation does not constitute an unfair labor practice under § 7116(a)(1) because § 7116(a)(1) applies only to violations of rights contained in the Statute.
IV. The Judge did not err in failing to find that the Respondent interfered with the Charging Party's right under § 7102 of the Statute
As noted above, § 7102 of the Statute provides, in pertinent part, that "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right."
The GC argues that the Judge erred in failing to find that the Respondent interfered with the Charging Party's "right under § 7102 of the Statute to refrain from seeking the assistance of the union[.]" Exceptions at 17-18. The GC asserts that § 7102 includes the right to obtain an attorney representative and decline "the assistance" of the union. Id. at 9; see also id. at 14, 17-18. The crux of the GC's argument is that the Respondent's refusal to recognize the Charging Party's attorney representative precluded the Charging Party from refusing representation of the Union.
The GC's argument ignores a critical fact. In this regard, it is undisputed that at all relevant times the Charging Party was free to refuse the Union's representation and, instead, to represent himself. As such, even assuming that a requirement to accept Union representation would constitute assistance to the Union, there was no such requirement in this case. Although the GC is correct that the Charging Party was not permitted to obtain an attorney representative unless the attorney was approved by the Union, the GC is not correct that the Charging Party was precluded from declining the Union's representation. At no time was the Charging Party required to accept -- or precluded from declining -- any assistance of the Union.
In these circumstances, there is no basis for concluding that the Judge erred in failing to find that the Respondent interfered with the Charging Party's rights under § 7102. Accordingly, we conclude that the Respondent did not violate the Statute as alleged and adopt the Judge's conclusion to dismiss the complaint on the grounds set forth above. [n5]
The complaint is dismissed.
Separate Opinion of Chairman Cabaniss, dissenting in part:
Although I agree with the majority decision so far as it goes, I dissent from the majority's failure to address the other exceptions, which are not automatically resolved or rendered moot by the resolution of the one matter discussed in the majority opinion.
File 1: Authority's Decision in 59 FLRA No.
19 and Opinion of Chairman Cabaniss
File 2: ALJ's Decisison
Footnote # 1 for 59 FLRA No. 19 - Authority's Decision
Footnote # 2 for 59 FLRA No. 19 - Authority's Decision
5 U.S.C. § 7503(b) provides in relevant part that "[a]n employee against whom a suspension for 14 days or less is proposed is entitled to . . . be represented by an attorney or other representative[.]"
Footnote # 3 for 59 FLRA No. 19 - Authority's Decision
Article VII, Section 7.1(E) of the parties' agreement provides, in relevant part, that "[i]f an employee covered by this General Agreement should choose not to be represented by a representative approved by the [Union], he must represent himself in presenting the grievance."
Footnote # 4 for 59 FLRA No. 19 - Authority's Decision
As relevant here, § 7102 provides that "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right."
Footnote # 5 for 59 FLRA No. 19 - Authority's Decision