[ v16 p464 ]
16:0464(70)CA
The decision of the Authority follows:
16 FLRA No. 70
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1920, AFL-CIO
Respondent
and
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY, HEADQUARTERS
III CORPS AND FORT HOOD
FORT HOOD, TEXAS
Charging Party
Case No. 6-CO-20012
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in certain unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed in its entirety.
Thereafter, the General Counsel filed exceptions to the Judge's
Decision, and the Respondent filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings made by
the Judge at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record in this case, the Authority
hereby adopts the Judge's findings, conclusions and recommended Order.
/1/
ORDER
IT IS ORDERED that the complaint in Case No. 6-CO-20012 be, and it
hereby is, dismissed.
Issued, Washington, D.C. November 15, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1920, AFL-CIO
Respondent
and
UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY, HEADQUARTERS
III CORPS AND FORT HOOD
FORT HOOD, TEXAS
Charging Party
Case No.: 6-CO-20012
Joseph F. Henderson, Esq.
For the Respondent
Sharon D. Hill, Esq.
For the Charging Party
James E. Dumerer, Esq.
Elizabeth A. Martinez, Esq.
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101, et seq. It was instituted by the Regional Director of the
Sixth Region of the Federal Labor Relations Authority by the issuance of
a Complaint and Notice of Hearing dated July 26, 1982. The Complaint
was issued following an investigation of an unfair labor practice charge
filed on February 14, 1982, by United States Department of Defense,
Department of the Army, Headquarters III Corps and Fort Hood, herein
referred to as the Agency or Charging Party.
The Complaint alleges that American Federation of Government
Employees, Local 1920, AFL-CIO, herein the Respondent, AFGE or Union, by
its agent Herbert B. Stimmel, has since on or about February 18, 1982,
interfered with, restrained and coerced employees in the exercise of
their rights guaranteed in Section 7102 of the Federal Service
Labor-Management Relations Statute by removing Gary D. Hammerschmidt
from his position as Union steward for having testified in an unfair
labor practice hearing conducted under the auspices of the Federal Labor
Relations Statute. By such conduct, Respondent is alleged to have
violated Section 7116(b)(1) of the Statute. Respondent denies any
violation contending that it had independent reasons for removing
Hammerschmidt as Union steward.
A hearing was held in Temple, Texas, at which time the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine and cross-examine witnesses and argue orally. Briefs
filed by the General Counsel and Respondent have been duly considered.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. The Charging Party is an agency within the meaning of 5 U.S.C.
7103(a)(3) of the Statute. The Respondent is a labor organization
within the meaning of 5 U.S.C. 7103(a)(4) of the Statute. Herbert B.
Stimmel has occupied the position of President, American Federation of
Government Employees, Local 1920 since 1978 and is an agent of the
Respondent, acting on its behalf. At all times material herein,
Respondent has been recognized as the exclusive representative for
appropriate units of employees as more fully set forth in G.C. Exh. No.
1(d). Included in these units of 4500 employees are firefighters who
work on alternating shifts at four stations on the base. At all times
material herein, Respondent and the Agency have been parties to a
collective bargaining agreement, effective July 19, 1976, covering
employees in the appropriate unit.
2. In December 1981 or early January 1982, steward Gary
Hammerschmidt went to the Civilian Personnel Office to ask what
procedures were available to bring another union into Fort Hood to
represent fire fighters. He was told by Ms. Henson that this was a
touchy subject, that AFGE had exclusive rights, and he was referred to
the Federal Labor Relations Authority. He then went to see Union
President Herbert Stimmel who became rather excited and said there was
no way it could be done, that the Union was representing the fire
department and doing a fine job. The credited testimony of Stimmel
reveals that he instructed Hammerschmidt to drop the matter and assumed
that his instruction would be followed. Stimmel had no reason at this
particular point in time of suspecting any disloyalty by Hammerschmidt
who claimed to be merely inquiring on behalf of another employee, Scott
Field. /2/
3. On January 18, 1982, a hearing was conducted pursuant to the
Federal Service Labor-Management Relations Statute concerning unfair
labor practice Case No. 6-CA-1209-2. The hearing was based upon a
complaint brought by Local 1920 alleging that the Agency violated the
Statute by threatening employees with disparate treatment and reprisal
because of their activity on behalf of Local 1920. Stimmel appeared at
the hearing on behalf of Local 1920. Sharon D. Hill, in her capacity as
Counsel for the Agency, called steward Hammerschmidt as a witness.
Hammerschmidt was there voluntarily and not pursuant to any subpoena.
He was there as a character witness to vouch for the honesty of a
supervisor with whom he, in his steward capacity, had met and dealt with
on labor-management problems. He did not tell his Union President in
advance of the hearing that he would be a witness. /3/ As a result,
Stimmel was surprised when Hammerschmidt appeared at the hearing (Tr.
110). Hammerschmidt's testimony (G.C. Exh. No. 3) lasted only a few
minutes, following which he left the witness stand and departed from the
courtroom. He had no conversation with anyone, including Stimmel and
proceeded directly to his truck and returned to North Fort Hood. /4/
The hearing concluded at 2:05 p.m.
4. The following also occurred during the course of the January 18
hearing. During a break in the hearing, Hammerschmidt had a
conversation with steward John Irwin and former steward David Weber
outside the courthouse while they were leaning next to a pickup truck by
a drainage ditch. Irwin testified that Hammerschmidt discussed bringing
the International Fire Fighters Union, hereinafter IFF, into Fort Hood.
Hammerschmidt told them he had already made contact with IFF and a
representative from IFF could come up and talk to them about it.
According to Irwin, Hammerschmidt said he thought it would be a better
union for us because it was a fire fighting union. Weber testified that
Hammerschmidt thought the IFF could better represent the fire
department. Irwin testified that he reported the above discussion to
Stimmel at the hearing and Stimmel's reaction was "somewhat disgusted."
According to Stimmel, he was informed at the hearing by other stewards
that Hammerschmidt "still wanted to bring it (the other union) in."
Based upon my review of the foregoing testimony and the demeanor of the
witnesses, I credit Irwin, Weber and Stimmel as to what Hammerschmidt
said and the fact that it was immediately reported to Stimmel. /5/ What
is not clear, however, is whether the phrase "at the hearing" means
during the hearing (e.g. during a break or at lunchtime) or immediately
upon conclusion of the hearing, while still at the courthouse. I
conclude that, at the latest, Stimmel learned about Hammerschmidt's
activity on behalf of IFF at the conclusion of the hearing and before he
returned to his office.
5. Stimmel returned to his office and wrote a two-sentence letter
advising the Civilian Personnel Office that Gary Hammerschmidt was
terminated as steward, effective that same day. (G.C. Exh. No. 3). The
document was time-stamped by the Civilian Personnel Office as being
received at approximately 3:00 p.m. Stimmel also prepared a memorandum,
dated the same day, notifying Gary Hammerschmidt as follows:
Please consider this official notification that you are removed
as a steward for Local 1920.
Two recent events have led me to make this decision.
1. You went to C.P.O. to inquire about bringing another union
into Fort Hood. This is a violation of AFGE and the National
Constitution, an extremely bad policy for a steward that is
supposedly representing Local 1920.
2. Today, January 18, 1982, without consulting with me, you
testified for Management in an Unfair Labor case that Local 1920
had filed with F.L.R.A. and a complaint had been issued. I can
only assume from your actions that you are much more interested in
representing Management than Local 1920. Therefore, to avoid
casting an unfavorable image and a possible filing against Local
1920, I hereby terminate you as a representative of Local 1920.
The above letter was received by Hammerschmidt a few days later, but by
then he already knew of his removal. As far as this record /6/ is
concerned he learned about it when he called Stimmel around 4:00 p.m.
the afternoon of the hearing to "explain my side of what I did." Stimmel
told him he was going to remove him as steward and that he didn't care
to listen to his side of the story.
6. At the hearing before me, Stimmel was asked about his letter of
January 18 removing Hammerschmidt from his steward position. Stimmel
credibly testified that long prior to January 18 he had complaints about
Hammerschmidt being "pro-management" by other employees, but he took no
action to remove him because he didn't have a replacement available.
/7/ The last complaint he received was at the hearing when he was told
that Hammerschmidt was "still pursuing trying to get another union in."
Later, Stimmel testified that "the incident of the continuing of the
trying to get the other union in was the final straw" (Tr. 116, lines
5-6, 19-20). Stimmel was also asked why he included, as a reason for
removal, Hammerschmidt's testimony at the FLRA hearing. Stimmel replied
that it was not specifically for giving testimony but, rather, because
Hammerschmidt failed to consult the Union President in advance.
Stimmel's concern was that a steward who appears to be pro-management
loses his credibility with the membership and thus damages his
effectiveness as a representative. This adverse result could be
avoided, according to Stimmel, if there was a logical explanation for
Hammerschmidt's action (e.g. to help a friend) so that this explanation
could be passed along to the other Union members. On cross-examination,
however, Stimmel also revealed that by failing to discuss this in
advance Hammerschmidt had not shown him proper respect as president.
Thus, it appears that Stimmel also was personally affronted by
Hammerschmidt's surprise appearance as a witness and, as he told
Hammerschmidt on the telephone later that day, he was embarrassed to
admit to the Union attorney that Hammerschmidt was a Union steward. On
cross-examination, Stimmel was also asked why he refused to listen to
Hammerschmidt's side of the story when Hammerschmidt called him after
the hearing. Bearing in mind that Stimmel had already taken action to
remove Hammerschmidt as a steward as of the time of this conversation,
Stimmel replied as follows: "No, because he couldn't convince me
otherwise, because he had done the final, ultimate thing to be removed
in my opinion."
Essentially the issue to be resolved herein is whether the "final
ultimate" reason for Hammerschmidt's removal as a steward was his
continuing efforts to bring in another Union or his giving testimony at
the hearing.
Discussion and Conclusions of Law
A. Applicability of the Statute
Section 7102 of the Statute provides as follows with respect to
"employee rights:"
Each 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 . . . .
Section 7116(a)(4) makes it an unfair labor practice for an agency:
to discipline or otherwise discriminate against an employee
because the employee has filed a complaint, affidavit, or
petition, or has given any information under this chapter.
No comparable language exists in Section 7116(b) with respect to unfair
labor practices by unions. Nevertheless, the Complaint herein alleges a
violation of Section 7116(b)(1) which makes it an unfair labor practice
for a labor organization "to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right under this
chapter."
The Complaint relies on a decision by the Authority in which it
adopted an Administrative Law Judge's decision finding the union therein
violated Section 7116(b)(1) by removing a union steward because he gave
testimony in a Federal Labor Relations Authority hearing. /8/ Pertinent
language in the Authority's decision is as follows:
In so adopting, the Authority finds that the right guaranteed
to employees under section 7102 of the Statute to form, join, or
assist any labor organization, or to refrain from such activity,
is sufficiently broad to include within its scope the right of an
employee to appear as a witness in an Authority proceeding to
which a union is a party and to give testimony supporting or
opposing the union's interest in that proceeding. In this regard,
it is no less interference with the section 7102 statutory right
for a union to discipline or discriminate against an employee for
giving testimony in an Authority proceeding than it is for an
employer to do so as proscribed under section 7116(a)(4) of the
Statute. Such interference with employee rights under section
7102 is thus a violation of section 7116(b)(1) of the Statute.
However, this should not be construed as abrogating the union's
control of its own internal affairs in the absence of a statutory
violation such as here involved.
The Authority also noted that its order requiring reinstatement of
the steward to his union position was confined to the circumstances of
the case where it was found that "except for his testimony at the
Authority proceeding" the steward would not have been removed from his
union position.
Although the Authority is not bound by National Labor Relations Board
precedent, Counsel for General Counsel correctly notes in her brief that
the Authority's interpretation and finding is consistent with case law
arising under the National Labor Relations Act which similarly contains
no specific prohibition with respect to labor organizations. /9/
Moreover, in a recent decision by the United States Court of Appeals for
the District of Columbia Circuit, the Court upheld a negotiability
determination by the Authority and stated as follows: /10/
Reference to private sector precedent decided under the
National Labor Relations Act (NLRA) is appropriate in this case .
. . . The lack of any prior judicial decisions under the Act,
especially when combined with the relative paucity of applicable
legislative history, makes analogies to comparable legal
developments in the private sector relevant and useful as a guide
for this court's reasoning.
We take this opportunity, however, to stress that the degree of
relevance of private sector case law to public sector labor
relations will vary greatly depending upon the particular
statutory provisions and legal concepts at issue. This court, for
instance, has recently recognized that the structure, role, and
functions of the Authority were closely patterned after those of
the NLRB and that relevant precedent developed under the NLRA is
therefore due serious consideration. /11/
Although the Authority's NTEU decision has not yet reached the Circuit
Courts under this Statute, there is court precedent for a similar
conclusion reached by the NLRB in its interpretation of similar
statutory provisions. /12/
B. The Causation Test in "Mixed Motive" Cases
By way of background, it should be noted that in cases arising under
the Executive Order, the Assistant Secretary of Labor utilized an "in
part" test in determining whether discrimination against an employee was
motivated by his or her protected activities under the Order. Thus,
where an agency had a legitimate basis for its management action against
an employee, but union considerations also played a part, the agency
would be held to have violated the Order. It was only necessary to show
that one of the reasons for the agency's action was based upon the
employee's union or protected activity. /13/ The "in part" test used by
the Assistant Secretary was no different than the test utilized by the
National Labor Relations Board in cases involving the private sector.
In a case arising under the Statute, however, the Authority decided
in 1981 to reevaluate the test or standard previously used in Executive
Order cases. Thus the Authority said: /14/
This case is one of first impression under the Statute in that
it, for the first time, affords the Authority an opportunity to
address the question of what test should be applied under the
Statute in situations where consideration of an employee's
participation in activities protected by the Statute played a part
in a management decision adversely affecting that employee.
Citing the Supreme Court's decision in Mt. Healthy, /15/ the Authority
concluded as follows:
In such circumstances the Authority finds that the burden is on
the General Counsel to make a prima facie showing that the
employee had engaged in protected activity and that this conduct
was a motivating factor in agency management's decision not to
promote. Once this is established, the agency must show by a
preponderance of the evidence that it would have reached the same
decision as to the promotion even in the absence of the protected
conduct.
In the Authority's view, the application of such a test will
serve to balance the legitimate interests and purposes of
government with those rights assured to employees and their
representatives under the Statute. Such a test serves the
purposes of the Statute by making it possible to more thoroughly
analyze the relationship between the agency action and the
protected conduct of an employee. Under this test, therefore,
both the General Counsel and the agency will have an opportunity
to adduce evidence as to the motivating factors involved in the
action or decision of the agency which is the basis of the
complaint. If it is established by a preponderance of the
evidence that the same action or decision of the agency would have
taken place even in the absence of the protected activity, a
complaint of violation of section 7116(a)(1) and (2) of the
Statute will not be sustained. Conversely, if it is not
established by a preponderance of the evidence that the action or
decision would have taken place in any event, the Authority will
find a violation under section 7116(a)(1) and (2) of the Statute.
In reaching this conclusion the Authority relied upon its own
independent analysis of the Federal Labor-Management Relations Statute.
/16/
C. Application of the Authority's Test to this Case.
The two-part test established by the Authority in the Internal
Revenue case has been met herein. On January 18, after completion of a
Federal Labor-Management Relations Authority hearing, Union President
Herbert Stimmel returned to his Union office and prepared two documents.
One notified the Civilian Personnel Office that Hammerschmidt's status
as a Union steward was terminated; the other notified Hammerschmidt of
the reasons for his termination. His status as a member of the Union
was not affected, nor was any action taken to affect his status as an
employee.
General Counsel's Exhibit No. 5, the Union's letter to Hammerschmidt,
sets forth two reasons for his removal: (1) his inquiries with respect
to bringing in another union; and (2) his testimony in the FLRA hearing
without prior consultation with Stimmel. /17/ On the fact of the
document itself, it's not clear which of these two reasons was the
motivating factor or real reason for the action taken. However, the
main theme running through the document is that Hammerschmidt's conduct
was incompatible with his obligations as a steward representing Local
1920.
Under the Authority's new test, the General Counsel has the burden of
making a prima facie showing that the employee engaged in protected
activity and that this was a motivating factor in the decision to remove
him from his steward's position. I conclude, based on the documentary
evidence and the testimony of Stimmel, that a motivating factor in
removing Hammerschmidt was the fact that he appeared as a witness and
gave testimony at the FLRA hearing. Clearly, under the Authority's
decision in the NTEU case, Hammerschmidt was engaged in protected
activity. Therefore, the General Counsel has met his burden in making a
prima facie case.
Respondent, in order to meet its burden of showing it would have
reached the same decision (i.e. removal of Hammerschmidt as a steward)
even in the absence of the protected conduct, introduced evidence
showing that on the day of the hearing, Hammerschmidt talked to two
stewards, Irwin and Weber, and attempted to sell them on the idea of
bringing in the International Fire Fighters Union because it would
represent them better than AFGE. Stimmel was informed of this conduct
by Hammerschmidt at the hearing. There certainly is no doubt in my mind
that Hammerschmidt, by attempting to promote acceptance of a different
union, was engaging in conduct inconsistent and incompatible with his
obligation of being loyal to the Union which appointed him steward. If
a union in conducting its own internal union business cannot rid itself
of disloyal stewards it certainly cannot effectively function. Prior to
January 18, Hammerschmidt asked about the procedure for bringing in
another union but he conveyed the impression he was asking on behalf of
someone other than himself. He was told to drop the matter. It seems
reasonable to me that Stimmel, when being told on the day of the hearing
that Hammerschmidt was continuing to foster the idea of bringing in
another union, now realized with certainty that Hammerschmidt was acting
for himself, and quite clearly against the interests of Local 1920.
Whatever doubts Stimmel may have had before about Hammerschmidt were
resolved on January 18. As steward Irwin testified, Stimmel was
disgusted when he was informed at the hearing of Hammerschmidt's efforts
to supplant AFGE with the International Fire Fighters. As far as
Stimmel was concerned this was the "final straw" and as soon as he
returned to his office he took steps to remove Hammerschmidt as steward.
In my opinion, Hammerschmidt's conduct in this respect was not
protected activity and therefore the Union had a lawful reason for
removing him, consistent with the Union's right to enforce discipline.
/18/ Thus, Respondent has shown by a preponderance of the evidence that
it had a motivating factor, independent from Hammerschmidt's protected
activity.
In determining which of two competing motives was the real or "but
for" reason for removing Hammerschmidt as steward, I must rely of course
on the Authority's test as enunciated in Internal Revenue Service.
Based upon my evaluation of the entire record in this proceeding, I find
and conclude that a preponderance of the evidence establishes that
Respondent Union, even in the absence of Hammerschmidt's protected
activity, would have removed him from his steward position on January
18, 1982 because of his efforts to bring in a rival union. /19/ From
the Union's point of view, Hammerschmidt's protected activity paled in
comparison to his unprotected activity of bringing in another union.
This latter conduct was in the nature of a "capital offense" and I
believe it triggered the decision to remove Hammerschmidt as steward.
Accordingly, I conclude that Respondent did not violate Section
7116(b)(1) as alleged in the Complaint.
ORDER
It is hereby ordered that the Complaint in Case No. 6-C0-20012 be,
and it hereby is, DISMISSED in its entirety.
FRANCIS E. DOWD
Dated: March 28, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ In adopting the Judge's decision, the Authority notes with
approval his reliance on the decision of the U.S. Supreme Court in Mt.
Healthy City School District Board of Education v. Doyle, 429 U.S. 274
(1977). Further, subsequent to the Judge's decision herein, the Supreme
Court issued its decision in N.L.R.B. v. Transportation Management
Corp., . . . U.S. . . . , 103 S.Ct. 2469 (1983), finding permissible and
therefore affirming the National Labor Relations Board's construction of
the National Labor Relations Act, as amended, which is similar to the
approach taken by the Authority in "dual motive" cases. See, e.g.,
Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981).
/2/ Scott Field was called as a rebuttal witness and he testified
that, in fact, he did ask Hammerschmidt to find out how to bring in
another union. However, it apparently was not an isolated inquiry. The
two of them discussed the matter several times at every shift change
over a period of three or four weeks. Field testified that he thought a
steward would be better able to obtain the requisite information and he
asked Hammerschmidt, who worked on A shift, because it was more
"convenient" than asking a B shift steward. Irwin, Street, Leslie, and
Weber (all of whom testified for the Union herein) were stewards on the
B shift. I conclude that Field's inquiry was prior to January 18, 1982
and, in so doing, rely on Hammerschmidt's recollection of the date of
his meeting with Stimmel.
/3/ I do not credit Hammerschmidt's testimony that he attempted to
call Stimmel during the 2-day period prior to the hearing and I note he
didn't talk to Stimmel at the hearing. The record established that the
Union had two phones and other employees had no difficulty getting
through to the Union office.
/4/ Apparently Stimmel immediately followed Hammerschmidt from the
courtroom, thus giving the impression that he was going to speak to him.
In fact, there was no such conversation. Perhaps, Stimmel changed his
mind or was merely going to the lavatory or drinking fountain. In these
circumstances, I place no special significance in Stimmel's action and
draw no adverse inferences from it. Nor do I reach any conclusion based
on the testimony of Sharon Hill that Stimmel became red in the face and
appeared "visibly upset" during Hammerschmidt's testimony. Stimmel's
face also reddened at times in his testimony before me but I concluded
(correctly or not) that this had something to do with his blood
pressure, rather than his being upset or angry.
/5/ I specifically discredit Hammerschmidt's version. He admits the
conversation took place but would have us believe he was merely
mentioning Field's interest in the matter, rather than his own. Having
already been told by Stimmel to drop the matter, his weak explanation
for bringing up the subject again was to let men on another shift know
that someone on their shift was interested in getting another union. I
found his testimony to be incredible.
/6/ As noted in fn. 3, I don't believe Hammerschmidt made a genuine
effort to contact Stimmel before the hearing. He also did not talk to
him at the hearing or remain afterwards to attempt to talk to him.
Neither Counsel asked him whether he received a phone call after the
hearing from the Civilian Personnel Office to inform him of his removal.
For some reason, however, he felt compelled to call Stimmel to explain
his side of it (Tr. 32, 33).
/7/ Whatever reasons Stimmel may have had to remove Hammerschmidt
prior to January 18 are irrelevant. The fact is that those reasons did
not result in the Union removing him prior to January 18. Moreover,
with respect to alleged criticism of Hammerschmidt as a steward, I note
that in October 1980 he received a document from the Union recognizing
his outstanding service as a steward and Union member. Even in Stimmel
had some reservations about Hammerschmidt between October 1980 and
January 1982, no action was taken until the events of January 18, 1982.
/8/ National Treasury Employees Union and National Treasury Employees
Union, Chapter 53, herein referred to as NTEU, 6 FLRA 218, 6 FLRA No. 37
(1981).
/9/ IBEW Local Union No. 34, AFL-CIO, 208 NLRB 638 (1974); Local 138
Operating Engineers (Charles Skura), 148 NLRB 679, 57 LRRM 1009, cited
with approval in NLRB v. Industrial Union of Marine and Shipbuilding
Workers of America, 391 U.S. 418 (1968).
/10/ Library of Congress v. Federal Labor Relations Authority, No.
82-1240, CCA-DC, February 25, 1983.
/11/ See Turgeon v. FLRA, supra note 10, 677 F.2d at 939-904; Dep't
of Defense v. FLRA, supra note 8, 659 F.2d at 1144. See also
Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 584
(D.C. Cir. 1982) (interpreting scope of the Authority's remedial
discretion by looking to Supreme Court interpretation of similar
language in the NLRA).
/12/ See fn. 9. Also, for a comprehensive discussion concerning the
balancing of internal union prerogatives with the protection of the
integrity of the Authority's processes, see Chief Judge John H. Fenton's
decision in Local 1738, American Federation of Government Employees and
Veterans Administration Hospital, Salisbury, North Carolina, Case No.
4-CO-47, OALJ 82-93 (June 16, 1982), pending before the Authority on
review.
/13/ Directorate of Supply Operations, Defense Logistics Agency,
Headquarters, Defense Logistics Agency, 2 FLRA 937, 2 FLRA No. 118
(1980).
/14/ Internal Revenue Service, Washington, D.C., hereinafter referred
to as Internal Revenue, 6 FLRA 96, 6 FLRA No. 23 (June 17, 1981),
petition for review pending in the U.S. Court of Appeals for the
District of Columbia Circuit.
/15/ Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977).
/16/ The analytical approach adopted by the Authority is mixed motive
cases under Section 7116(a)(1) and (2) has also been adopted by the
National Labor Relations Board in cases under Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. Wright Line, a Division
of Wright Line, Inc., 251 F.2d 899 (1 Cir. 1981), cert denied 102 S.Ct.
1612 (1982). For a discussion of a most recent Court decision on this
issue, see NLRB v. New York University Medical Center, Docket No.
82-4137 (January 21, 1983), in which the Second Circuit held that the
Board improperly shifted the burden of persuasion to the employer. The
Court remanded to the Board to determine which of competing motives was
the real or "but for" cause of the discipline. As noted therein (with
appropriate citations), the Board's Wright Line test has been rejected
by three other Circuit Courts and accepted by four Circuit Courts.
/17/ In my opinion, Hammerschmidt had a statutory right to be a
witness in the FLRA hearing regardless of whether he consulted the Union
President in advance.
/18/ Section 7116(c) of the Statute specifically "does not preclude
any labor organization from enforcing discipline . . . to the extent
consistent with the provisions of this chapter."
/19/ Internal Revenue Service, supra fn. 14; New York University
Medical Center, supra, fn. 16.