[ v17 p862 ]
17:0862(115)CO
The decision of the Authority follows:
17 FLRA No. 115
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Respondent
and
PATSY K. PAIGE
Charging Party
Case No. 8-CO-37
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Respondent
and
UNITED STATES DEPARTMENT OF THE
NAVY, NAVY EXCHANGE, PEARL
UNITED STATES NAVAL BASE
PEARL HARBOR, HAWAII
Charging Party
Case No. 8-CO-38
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
engaged in the unfair labor practices alleged in the complaints, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Respondent and the General Counsel
filed exceptions to the Judge's Decision.
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 of the
Judge made 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, the Authority hereby adopts the
Judge's findings, conclusions and recommendations as modified herein.
With regard to the appropriate remedy for the violations found in
Case No. 8-CO-37, the Authority agrees with the Judge that it is not
material that the Union may have decided that the grievances or
statutory appeals at issue were lacking in merit, as the Union had
interjected itself into the grievance process, and had refused to assist
the employees only because of their non-member status. At the same
time, we also agree with the Judge, in the circumstances of this case,
that a backpay remedy is not warranted, noting particularly the Judge's
conclusion that "the weight of the evidence does not indicate that
intervention by the Union would have resulted in the substantive relief
sought by the grievant." Hines v. Anchor Motor Freight, 424 U.S. 554, 91
LRRM 2481 (1976). We do not agree, however, that the Union should pay
for "legal representation, of the employees' choice." The facts of this
case do not in our view warrant, and no party seeks, such an order.
Rather, we will order that the Union provide representation, by its own
or outside legal counsel if appropriate, to the employees if they choose
to seek a waiver of time limits under either the negotiated grievance
procedure or any statutory appeals procedures available to them to now
file grievances or appeals.
With regard to Case No. 8-CO-38, the Authority agrees with the
Judge's conclusion that the Union violated section 7131(b) of the
Statute. While the solicitation in this case was undertaken by a person
who was a full-time Union representative and not an employee within the
meaning of the Statute, the record reveals that the Union representative
specifically had requested duty time from management for four employees,
resulting in overtime payments for two, to discuss the employees'
concerns with their conditions of employment, and the Union
representative used this time for another purpose, the solicitation of
Union membership. In this regard, the Statute requires that "any
activities" by an employee relating to internal union business,
"including the solicitation of membership," be on nonduty time. /1/ The
requirement applies to an employee's use of duty time and, as here,
whenever a Union representative meets with employees on their duty time
for such purposes. /2/ Since the Union knowingly violated the spirit
and letter of section 7131(b), the Authority concludes, in agreement
with the Judge, that the Union thereby violated section 7116(b)(1) and
(8) of the Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Service Employees International Union, Local
556, AFL-CIO, shall:
1. Cease and desist from:
(a) Conditioning representation under the parties' collective
bargaining agreement of non-members on their joining the Service
Employees International Union, Local 556, AFL-CIO.
(b) Telling employees in the bargaining unit that it will not process
grievances pursuant to the contractual grievance procedure because of
their non-membership in the Union.
(c) Refusing to process grievances of bargaining unit employees
because they are not members of the Service Employees International
Union, Local 556, AFL-CIO.
(d) Soliciting Union membership on employees' duty time.
(e) In any like or related manner interfering with, restraining, or
coercing any employee in the exercise of the rights assured them by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Represent the interests of all employees in the bargaining unit
without regard to Union membership.
(b) Upon request, provide employees Patsy K. Paige, Miriam Gutowski,
Marcela Santiago and Earl Kamanu with Union representation, by its own
or outside legal counsel if appropriate, to allow them to seek a waiver
of time limits either under the negotiated grievance procedure or
applicable statutory appeals procedures, so that they might seek to
process their grievances or file statutory appeals, and provide them
whatever services the Union would have provided in this matter had it
not acted discriminatorily.
(c) Post at its business offices and its normal meeting places,
including all places where notices to members, and to employees of the
Navy Exchange, Pearl, United States Naval Base, Pearl Harbor, Hawaii,
are customarily posted, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the President of the Service
Employees International Union, Local 556, AFL-CIO, or his designee, and
they shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including bulletin boards and all other places
where Union notices to members and unit employees are customarily
posted. Reasonable steps shall be taken to ensure that such Notices are
not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., May 8, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT condition representation under the parties' collective
bargaining agreement of non-members on their joining the Service
Employees International Union, Local 556, AFL-CIO. WE WILL NOT tell
employees in the bargaining unit that the Service Employees
International Union, Local 558, AFL-CIO, will not process grievances
pursuant to the contractual grievance procedure because of their
non-membership in the Union. WE WILL NOT refuse to process grievances
of bargaining unit employees because they are not members of the Service
Employees International Union, Local 556, AFL-CIO. WE WILL NOT solicit
Union membership on employees' duty time. WE WILL NOT, in any like or
related manner, interfere with, restrain, or coerce any employee in the
exercise of the rights assured them by the Federal Service
Labor-Management Relations Statute. WE WILL represent the interests of
all employees in the bargaining unit without discrimination and without
regard to Union membership. WE WILL, upon request, provide employees
Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl Kamanu with
representation, by our own or outside legal counsel if appropriate, to
allow them to seek a waiver of time limits, either under the negotiated
grievance procedure or applicable statutory appeals procedures, so that
they may seek to process their grievances or file statutory appeals, and
provide them whatever services the Union would have provided in this
matter had it not acted discriminatorily.
(Labor Organization)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director of the Federal
Labor Relations Authority, Region VIII, whose address is: 350 South
Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose
telephone number is: (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
E. A. Jones, Esq.
For the General Counsel
Eric A. Seitz, Esq.
For the Respondent
Robert F. Griem, Esq.
For the Activity
Before: ELI NASH, JR., Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter
called the Statute), as a result of an unfair labor practice
Consolidated Complaint and Notice of Hearing issued May 12, 1981 by the
Regional Director, Region 8, Federal Labor Relations Authority, Los
Angeles, California.
The Consolidated Complaint alleges that Service Employees
International Union (hereinafter called the Union) violated section
7116(b)(1) and (8) of the Federal Labor Management Relations Statute
(hereinafter called the Statute) by telling certain employees that the
Union would not represent them in connection with their
reduction-in-force unless they joined the Union; by telling employees
that it had been instructed that employees could not file a grievance
until they joined the Union; by not filing a grievance on behalf of the
involved employees; and, by soliciting employees to join the Union
while they were on duty status. Respondent's Answer denied the
commission of any unfair labor practices.
A hearing was held in this matter before the undersigned in Honolulu,
Hawaii. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing
on the issues involved herein. All parties submitted timely briefs
which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact and
conclusions.
Findings of Fact
The Activity operates two gas stations at the Pearl Harbor Naval
Base. Prior to January 1981, one of the stations was fully automated
while the other was a self-service station with lane attendants who
collected cash from customers. The self-service station employed four
employees in the NA-2/3 Mobile Equipment Services job classification.
They were Patsy K. Paige, Miriam Gutowski, Marcela Santiago and Earl
Kamanu.
In December 1980, the Activity automated the self-service station.
Since the automated station did not involve either servicing cars or
collecting cash in the lanes, the Activity decided that it no longer
needed employees in the Mobile Equipment Service classification, the
positions occupied by Paige, Gutowski, Santiago and Kamanu. Instead,
the Activity decided that it would operate the newly automated station
with a lower paying classification, PS-2 checker/cashier, thus requiring
a reorganization and reduction-in-force.
After making its decision to reorganize and conduct a
reduction-in-force, the Activity, as is required by the collective
bargaining agreement, Article 19, notified the Union by letter of its
intention to conduct a reorganization. /3/ Union vice president Gregory
Elliot acknowledged receipt of this notification. Elliot testified that
he was contacted in early January 1981 about the reduction-in-force in
the gas station, and that he then contacted Exchange Manager Gantz with
a request to negotiate on the retention of credits, an area which the
parties had not successfully resolved since 1979.
As provided in Article 19, Section 5 of the collective bargaining
agreement, the four affected employees were notified, following the
notification to the Union, on January 19, 1981, by a General
Reduction-In-Force Notice, that each could be subject to a
reduction-in-force by virtue of the reorganization of the self-service
station. The General Reduction-In-Force Notice stated that the proposed
action was being taken because of "a reorganization of the Service
Station due to conversion to fully automated gas lanes". Each employee
was given the general notice in the presence of a Union shop steward.
The notice also stated that the employee could be terminated, but
advised that each would receive a specific notice at least five calendar
days prior to termination, and that at that time each would be advised
of his or her job and appeal rights.
Following receipt of the general reduction-in-force notices the
affected employees Paige, Gutowski, Santiago and Kamanu, along with a
secretary, Sharon Smith and Union business representative Debbie Page
/4/ and shop steward Robert Goroza met with Exchange Manager Gantz, Gas
Station Manager Chun and a gas station supervisor, Linda Long on January
21, 1981. This meeting was apparently called to discuss the general
reduction-in-force notices of January 19, 1981. It is not clear whether
the Union attended this meeting to assist these employees, since Article
19 of the collective bargaining agreement provides that the Union will
provide assistance in communicating reasons for a reduction-in-force to
affected employees. What is clear is that the Union, before the meeting
ended, assumed a representational role. Exchange Manager Gantz
initially explained why the reduction-in-force was necessary and assured
the affected employees that they would have first consideration for
filling the new full-time PS-2 checker/cashier jobs at the automated
station. Sharon Smith, who was unaffected by the reorganization,
attempted to ask questions on behalf of the four employees. However,
Union business representative Page inquired whether the employees wanted
Smith or the Union to represent them concerning the reduction-in-force.
Since the employees selected the Union, Smith was required by business
representative Page to leave the meeting prior to its ending.
At the conclusion of the meeting, business representative Page
requested and received permission to meet alone with the four employees
and Union steward Goroza. After Activity representatives had departed,
Page, according to the four employees, stated that assisting them would
require "a lot of time after hours and on weekends to research" other
avenues that might be taken to help the employees. Business
representative Page then told the four employees that if they wanted her
to help them, one of them would have to join or "rejoin" the Union.
Page added that they would have five days to join the Union and that
they could get the necessary papers from steward Goroza. In response to
a question concerning the cost of membership Page informed them that new
members paid $15.00 while renewing membership cost $50.00.
Supervisor Long's testimony corroborates that a fee was mentioned for
Union membership during the meeting. Long stated that, after the
meeting, she overheard a heated argument involving the four employees,
Sharon Smith, and steward Goroza concerning what had happened in the
meeting with Page. According to Long, she overheard them arguing over
the $50.00 they were told they would have to pay for the Union to
represent them. She also overheard someone say that the contract was
supposed to cover them up to arbitration. Long broke up this gathering
and told the employees to follow the proper procedures if they wanted to
talk to Goroza.
Union business representative Page's recollection of the meeting
differs. According to Page, she explained to the employees that the
reduction-in-force procedures had to be followed and that, if they were,
it would take a lot more investigating to look into the matter. Page
further states that she told employees that the Union would be looking
into the reasons behind the reorganization, that the question had
already been raised in the Union office, and that a Union vice president
was looking into it. As already stated, vice president Elliot's
testimony confirms the Union's awareness of the proposed
reduction-in-force. Page testified that she told the employees that if
they wanted the Union to represent them, they would have to fill out a
representation form and that they had five days to fill out this form.
Page also testified that a gentleman inquired if the employees had to be
members of the Union for the forms to be processed, but recalls only
that she probably responded, "(T)he Union strives on membership and we
will be more than happy to have (you) become members." In conjunction
with this question, Page also recalls the mention of fees for joining
and rejoining the Union.
Union business representative Page further testified that, prior to
processing a case, the Union representative or first line shop steward
must have a letter of representation which is signed authorizing the
Union to proceed. This letter of representation is required of members
and nonmembers alike. There is no indication from the record that the
employees confused this letter of representation with an authorization
to join the Union.
Business representative Page also testified that at the time of the
January 21, 1981, meeting she felt a grievance could not be filed
although she did not explain this to the employees. Clearly, Page did
not inform these employees that the matter could not be handled under a
statutory appeals procedure, or that it could not be handled under the
negotiated grievance procedure as is raised by vice president Elliot in
his later testimony. Page states that she told the employees that the
Union had seven days to appeal or take action on the General
Reduction-In-Force Notice of January 19, 1981-- leaving five days to
sign a representation form, but later admitted that there was no
pressing need on January 21, 1981, for signatures on authorization forms
within five days. Her statement apparently left the four employees with
the notion that this was a matter which could be handled under the
grievance machinery and further confused the issue. In addition, Page
admitted that the contract does not require a signature on an
authorization form as a prerequisite to filing a grievance. Page also
acknowledged that the contract permits grievances on any employee
employment-related dissatisfaction.
A review of the collective bargaining agreement does not disclose
whether a reduction-in-force is or is not subject to the grievance
procedure of Article 28. Further, grade and pay retention matters
resulting from a reduction-in-force are normally appealable to the
Office of Personnel Management under a statutory appeals procedure
rather than through the grievance machinery. However, certain matters
relating to reductions in force may be handled under the grievance
machinery, as is pointed out later.
The meeting between Page and the four employees lasted about 15
minutes, and although Gutowski and Santiago had clocked out prior to the
meeting, employees Paige and Kamanu were on the clock throughout both
meeting with Activity and Union representatives. Since Paige and Kamanu
were on the clock during these meetings, business representative Page
spoke with supervisor Long after the meetings, telling her that the two
employees should be paid overtime for the meetings. During the meeting
with the employees, business representative Page also told employees
Paige and Kamanu that she would make sure that they were paid for the
time spent in the meetings that afternoon, and they were indeed paid
overtime for the meetings.
Based on the credited testimony of the four affected employees, which
is partially corroborated by the testimony of supervisor Long, it is
found that Union business representative Page told these employees that
if they wanted the Union to help them concerning the reduction-in-force
they would have to join or rejoin the Union, and that the cost,
depending on whether they joined or rejoined, would be either $15.00 or
$50.00. It is also found, that the record establishes that Union
business representative Page solicited membership of these employees
while they were on the clock.
Later on the afternoon of January 21, 1981, Paige went to supervisor
Long to inquire about filing a grievance. Long simply instructed Paige
to follow the contract procedures. Paige then went to Union steward
Goroza, and obtained from him a blank grievance form. As noted below,
the contract procedure would indeed allow Paige to process any grievance
without Union intervention.
Thereafter, Paige talked to her three fellow employees about filing a
grievance for the group. In addition, the four employees conferred and
agreed to each chip in enough money for Kamanu to join the Union since
business representative Page had said she would represent them if one of
them was in the Union. Kamanu testified that he found out about the
grievance after it had been turned down by the Union. Later, when he
learned that the Union was not going to help them, Kamanu told the other
three that there was no sense in joining. For whatever reasons, none of
the employees joined the Union.
Paige then drafted a grievance dated January 22, 1981 based on the
January 21, 1981 meeting with Exchange Manager Gantz. The nature of the
grievance was described as, "company is planning on adding more
employees, which will be doing the same work at less pay. Also Mr.
Gantz has no answers to our questions. But wants us to take a $1.14
drop in pay." Paige's grievance requested the following corrective
action: "If I am doing the same work, I want the same pay." In essence,
the grievance involved grade and salary retention, and as already noted,
there is a serious question whether that aspect could have been
processed under the grievance machinery.
Paige then tried unsuccessfully to contact business representative
Page. Failing this, Paige requested shop steward Goroza to submit the
grievance to business representative Page for her. Goroza took the
grievance and said he would try to reach Page. However, Goroza
apparently did not talk to Page, but instead took the grievance to chief
steward Lynn Mata who told him she could not take it because the
employees had not joined the Union. Goroza returned the grievance to
Paige and told her what Mata had said.
Supervisor Long corroborates Paige, testifying that she overheard
Paige and Goroza arguing about what Mata had said-- that since none of
them joined the Union, they were not going to be represented by the
Union. Since this incident occurred at the gas station, Long asked
Goroza what was going on. Goroza responded that he had just returned
from Mata who had instructed him to return the grievance to Paige
because the four employees had not joined the Union and paid the fees.
Long then instructed the employees to return to work.
Based on the foregoing, it is found that chief steward Mata did in
fact refuse to process the Paige grievance because none of the affected
employees were Union members and that the employees were told that their
lack of membership was the reason their grievance could not be
processed.
The grievance form also states that it was submitted to a "Manager"
on January 23, 1981. However, there is no record evidence that it was
ever received or processed by any Activity official. In fact, Gantz on
recross examination concedes that, "nothing had happened to these
employees at that point so I don't see how they could have filed an
appeal." 5 C.F.R. 351.901 permits appeals by "(a)n employee who has been
affected by a reduction in force action" to the Merit Systems Protection
Board. However, there is no indication that these employees were ever
informed of any appeal rights.
The collective bargaining agreement provides in Section 7 of Article
28 that an employee may present a grievance without intervention by the
Union. /5/ If indeed the grievance had been presented to a management
official, as the grievance form suggests, it should have been processed
without Union assistance. While this may be true, it is found that even
if management did not process the grievance, the Union would not be
relieved of its responsibility to represent these employees,
particularly since it initially sought to represent them and its reason
for not doing so was that these employees were not Union members.
Subsequently, Paige informed the other three employees of the Union's
refusal to accept the grievance. Paige also inquired of supervisor Long
what other options were available since the Union had refused to assist
because they had not joined. Supervisor Long checked with Exchange
Manager Gantz and gave Paige the telephone number of the local agent for
the Federal Labor Relations Authority. Apparently, neither Long nor
Gantz suggested that the grievance could be processed without Union
intervention. Paige thereafter contacted the local Authority agent and
filed the instant unfair labor practice charge on February 11, 1981,
prior to implementation of the reduction-in-force.
Around March 31, 1981, the reorganization of the gas station was
implemented. There is no evidence to suggest that any further grievance
was filed or that the employees sought further assistance of the Union
after the implementation. As a result of the reorganization, employee
Santiago submitted her resignation and was rehired in the laundry, in
the dry-cleaning plant; employee Gutowski exercised her retreat right
to a presser position in the laundry; employee Kamanu was hired as a
cashier/checker in the newly automated gas station; and, employee Paige
went on maternity leave beginning in April 1981, but ultimately returned
to a cashier/checker position at the newly automated station.
According to the Union's vice president Gregory Elliot, he was, as
previously noted, aware of the reduction-in-force in early January 1981
and at that time he contacted Exchange Manager Gantz regarding
negotiations. Gantz does not recall a specific contact, but assumes
there was some contact with the Union concerning the reorganization.
After the unfair labor practice charge was filed in early February 1981,
Elliot again contacted Gantz concerning the reduction-in-force because
he was concerned about possible financial liabilities of the Union.
Elliot states that he informed Gantz of his concern with respect to the
grade and pay retention and the way employees would be placed in the
PS-2 positions. According to Elliot, Gantz told him that it was a
reorganization and that was the way it was going to be handled. Elliot
allegedly argued that the matter should be handled as a reclassification
because of the change of duties, but Gantz responded that the Exchange
was not going to give them the benefit of grade and pay retention.
Gantz recalls that he had contact with the Union concerning the
reduction-in-force following the January 21, 1981 meeting, but does not
recollect the exact nature of these meetings. I credit Elliot in
finding that the Union indeed contacted Activity management, in both
January and February concerning the reduction-in-force, but was
unsuccessful in its attempts to negotiate concerning the matter.
Elliot also testified that his research on the matter revealed that
the only issue involved was whether the Activity's action was a
reorganization or a reclassification. Certainly this is a matter about
which the parties disagreed and the grievance machinery of the
collective bargaining agreement could have been brought into play to
resolve this difference in understanding. Nonetheless, Elliot states
that the issue of pay could not be handled under the grievance procedure
and that there were no regulations regarding what would happen to an
employee moving between pay schedules in non-appropriated fund
operations. Finally, Elliot testified that no grievance was filed
concerning the actual implementation of the reduction-in-force because
the Civil Service Reform Act provisions applied only to employees
covered under the crafts and trades pay schedule and do not apply to the
affected employees, and that the provisions of the Civil Service Reform
Act concerning a (non-appropriated) employee's entitlements to the same
pay cannot be addressed under a grievance procedure or under any appeals
procedure. /6/
Discussion and Conclusions
Section 7114(a)(1) of the Statute provides that a labor organization
is "responsible for representing the interests of all employees in the
unit it represents without discrimination and without regard to labor
organization membership." Furthermore, the doctrine that an exclusive
representative's statutory authority to represent all members of a
designated unit includes a statutory obligation to serve the interests
of all members of that unit without arbitration or discrimination, and
to exercise its discretion with complete good faith and honesty to avoid
arbitrary conduct, has long been accepted by the Supreme Court. Vaca v.
Sipes, 386 U.S. 171 (1967).
The Union insists that the General Counsel has not produced any
evidence that it failed or refused to fulfill its obligation of fair
representation to the four employees herein. The Union argues that from
the time it first learned of the employer's planned reorganization, it
expended considerable effort, first investigating and then opposing the
proposed reduction-in-force. Further, it states that no grievance was
filed during January or February 1981 because the Agency was only
proposing to act and had not taken such action. After the
reduction-in-force was implemented, it decided not to file a grievance
or appeal because it concluded that there was no grievable or appealable
matter.
Although the grievance here may have been complex and time consuming,
that alone is not determinative of whether the Union breached its duty
of fair representation. The statutory obligation of an exclusive
representative to represent all members of a designated unit is breached
when conduct by the Union is arbitrary, discriminatory, or in bad faith,
Vaca v. Sipes, supra. The credited evidence discloses that Union
business representative told employees Paige, Gutowski, Santiago and
Kamanu on January 21, 1981 that the Union would represent them only if
they joined or "rejoined"; that these employees were given a five day
limit in which to join the Union; and that they were going to have to
pay money to obtain representation. Page, as the record revealed, is a
full-time business representative who also acted as a negotiator for the
present collective bargaining agreement. Page's own testimony and the
testimony of others indicated a degree of assertiveness in ordering
Smith from the January 21 meeting and in seeking overtime for the four
employees. Thus, if the Union had no obligation initially to assist
these employees, Page undertook the obligation to represent them. In
assuming this obligation, the Union assumed the concurrent obligation
not to act in an arbitrary or discriminatory way.
Certainly Page was interested in obtaining and maintaining union
membership for as she states, the Union "strives" on membership. The
conclusion is inescapable that Page used this opportunity to seek to
obtain additional membership for the Union. Therefore, full credit must
be given to the employees accounts, fragmented as they are, that Page
indeed solicited their membership before the Union would assist them in
this matter. Page's credibility is further strained by the action of
chief steward Mata who later refused to process the Paige grievance
because the employees were not Union members. Mata's refusal because
they had not joined the Union leaves little doubt about the Union's
motivation here. In all the circumstances, the only reasonable
inference to be drawn is that Page actively sought out Union membership
in exchange for assisting these employees, and when they refused to join
the Union halted any action by it on the reduction-in-force until after
an unfair labor practice charge was filed. Accordingly, it is found
that the General Counsel established by a preponderance of the evidence
that Page's attempt to require these employees to join the Union in
order to obtain Union assistance with their reduction-in-force was
discriminatory and in violation of section 7116(b)(1) and (8) of the
Statute.
With respect to the Mata incident, the credited corroborated evidence
is that the grievance filed by Paige was rejected by the Union and
returned to Paige for one reason, that these employees were not Union
members. It is settled law that a union need not process a frivolous
grievance. Vaca v. Sipes, supra. Finding a violation turns not on the
merits of the grievance, but rather on whether the Union's disposition
of the grievance was perfunctory or motivated by ill will or other
invidious considerations. A deliberate and unjustifiable refusal to
process a grievance for discriminatory reasons constitutes a violation
of the Statute. While the Union argues in mitigation that it was
engaged in investigation and made proposals concerning the
reduction-in-force, its investigation of the matter and attempts to
negotiate appear rather cursory prior to the filing of the instant
unfair labor practice charge.
Indeed, a labyrinth of regulations concerning reduction-in-force, pay
and grade retention exist. See, 5 C.F.R. 351, et al. Although the
matter was complicated, it apparently was not impossible to solve as
Union efforts after the unfair labor practice was filed clearly show.
Thus, the Union, if it handled the matter at all gave only a superficial
effort and without question rejected the grievance because these
employees were not members. An escalation of its handling of the matter
after the unfair labor practice was filed does not alter the fact that
the grievance was initially rejected for membership reasons.
Furthermore, there is no evidence that its attempts to resolve the
matter were ever conveyed to any of the affected employees, and they
were left with the impression that the only reason that their grievance
was not processed was because they were not Union members. Such action
by an exclusive representative in requiring membership in order to
accept and process a grievance of an employee in a unit which it
represents is discriminatory and interferes with, restrains and coerces
employees in violation of section 7116(b)(1) and (8) of the Statute.
With respect to the independent allegation that the Union unlawfully
solicited membership during work time, the Union does not deny that its
agents may have engaged in impermissible solicitations, but contends
only that, if so, the conduct was negligent and unintentional rather
than deliberate. It does, however, question whether the employees
herein were in duty status. The record disclosed that while two
employees had clocked out, two others were still on the clock and
working, and that they were indeed paid overtime at the Union's request
for participation in the meetings.
The General Counsel contends that section 7131(b)(7) precludes the
use of official time by a union for conducting internal union business
such as soliciting of membership. There is ample record evidence, as
noted above, to show that at least two of the affected employees were
not in a "non-duty" status since they were still on the clock and were
subsequently paid by the Activity for the time spent at the meeting. In
such circumstances, solicitation of these employees for Union membership
is prohibited by the Statute. Accordingly, it is found that the Union's
conduct in soliciting membership from employees in duty status is
prohibited by section 7131(b) and in violation of section 7116(b)(1) and
(8) of the Statute.
The Remedy
Having found that the Union did engage in conduct violative of
section 7116(b)(1) and (8) of the Statute it is recommended that it
cease and desist therefrom and take certain affirmative actions designed
to effectuate the policies of the Statute.
The question of back pay for breach of the duty of fair
representation by a union has never been considered by the Authority.
There is no doubt that the Authority is empowered under section
7105(g)(3) and 7118(a)(7) of the Statute to fashion such a remedy where
warranted.
The General Counsel argues that the egregious conduct engaged in by
the Union warrants a remedy requiring that the affected employees be
made whole for any pay lost as a result of the reduction-in-force
action, from the date of the reduction-in-force implementation to the
date the Union secures consideration of the grievance filed by those
employees, or that the employees affected obtain the position they would
have obtained had there been no violation by the Union. I disagree that
such a remedy is appropriate in this particular matter.
The Supreme Court set out the basic principle for apportionment of
damages for breach of fair representation in Vaca v. Sipes, supra, as
follows:
The governing principle then is to apportion liability between
the employer and the Union according to the damage caused by the
fault of each. Thus, damages attributable solely to the
employer's breach of contract should not be charged to the Union,
but increases if any in those damages caused by the Union's
refusal to process the grievance should not be charged to the
employer.
Thus, where there is a breach of fair representation, only the liability
for any intervening wage loss or losses which are not the result of an
employer's discrimination or breach would fall upon the union.
In proposing such a remedy the General Counsel no doubt seeks to
discourage illegal distinctions between members and non-members, but
ignores a basic formula running through all breach of fair
representation questions, that in order to establish legal damages, it
must be shown that the employee initially suffered from an improper
action from an employer's breach and that the Union could have secured
some relief. Even there, as here, a deliberate and unjustifiable
refusal to process a grievance is found, there remains a question of
entitlement, since damages are generally not warranted except where they
are to compensate for injury suffered. This record does not establish
the foregoing.
Contrary to the General Counsel's theory which assumes that the
matter grieved is meritorious, it is my view, that there must be a
substantial reason to believe that the Union's breach of its duty
contributed to any loss which is compensable. Assignment of fault for
liability prior to a determination of record that any liability exists
has several flaws. First, any damages for which the Union might be
responsible might well be de minimis. Secondly, there is no
indemnification for the Union, if after processing the grievance it
found to lack merit. Further, federal sector labor policy would not be
served by requiring a union to pay damages where the employee would not
be able to obtain the substantive relief sought by his or her grievance
or appeal. /8/ And, finally the Union's action herein did not prevent
these employees from either filing or pursuing a grievance or statutory
appeal, on their own, in a timely manner.
The instant record offers no clear and convincing evidence that a
grievance or appeal would have been successful or would have resulted in
any of these employees retaining pay or equivalent positions at their
level prior to the reduction-in-force. /9/ If anything, the record
establishes that the servicing of cars and collecting cash, performed by
these employees in the higher classification was no longer required in
the automated station. Under such circumstances, they may well not have
been entitled to retained pay or grade. Thus, the weight of the
evidence does not indicate that intervention by the Union would have
resulted in the substantive relief sought by the grievant Paige, i.e.,
same pay for same work, since the work appears from the record to be at
a lower classification and somewhat different. Nor does the evidence
indicate that negotiations with the Activity would have resulted in a
satisfactory resolution for these employees. If, however, negotiations
would satisfy its obligation, the Union contacted the Activity in early
January before the unfair labor practice charge was filed and sought
negotiations, but was rebuffed. Furthermore, as Respondent's
uncontroverted testimony disclosed, these employees, who are
non-appropriated fund employees, could well not be covered by any
grievance or appeal procedures which would require retention of pay or
grade in a reduction-in-force. For the Authority to grant such a remedy
without that determination having been made would be purely speculative.
Here the record establishes only that employees at the automated
station, after the reorganization, performed lesser work which may or
may not have required a reduction in pay and grade. It does not reveal,
nor is it alleged, that there was either discriminatory treatment of
these employees by the Activity during the reorganization or that there
was any mistake in the reduction-in-force. Such an issue should be
resolved either through the grievance machinery or through the statutory
appeals procedure, each of which the Union argues is unavailable. To
order back pay prior to that determination would be punitive.
Another difficulty with the General Counsel's proposed remedy, is
that it overlooks potential liability of the Agency concerning whether
or not the reduction-in-force was discriminatorily or mistakenly
conducted. The record does not reveal nor is it suggested by the
parties that the reduction-in-force was defective. If not, there is no
liability for damages since the fundamental purpose of such a remedy is
to compensate for injuries suffered as a result of a breach by the
employing agency and for whatever other losses these employees may have
suffered as a result of Union discrimination in failing to pursue the
grievance. It must be recognized that the decision to reorganize and to
perform the reduction-in-force was exclusively within the province of
management and that the Union on its own can neither reinstate these
four employees nor, since all time limits have expired, grieve or appeal
the matter unless the Activity or the government agency assigned to
police the matter now agrees to accept a grievance or appeal.
Notwithstanding the Union's wrongful conduct, the fact remains that any
compensable injury for which liability initially exists, would have to
result from discrimination or a mistake attributable to the employer's
conduct, not the Union. Therefore, a determination of what injury was
suffered must be made before the Union can be ordered to make any
payment of damages to these employees. In this regard, cases such as
Vaca v. Sipes, supra; Bowen v. United States Postal Service, et al.,
103 S.Ct. 588 (1983); Czosek v. O'Mara, 397 U.S. 25 (1970); Harrison
v. Chrysler Corp., 558 F.2d 1273, 1279 (1977), all agree that the Union
is responsible not for damages solely attributable to an employer's
breach, but only for increases in damages caused by its own breach.
Such damages include legal fees and intervening wage losses. This
record shows neither. The net result of the General Counsel's proposed
remedy then would be to require no determination of that liability, but
require payment of damages by the Union before any determination of
liability has been made regardless of whether there is a compensable
injury. Such a result is incongruous with the general principle that
the Union is responsible only for damages caused by its own breach since
no damages have been shown.
The Union alleges that this matter was not subject to the parties'
grievance machinery or to a statutory appeals procedures due to the
status of these non-appropriated fund employees. Indeed, a maze of
regulations exist concerning reductions in force and pay and grade
retention. In taking such a position it shows a bias or
predetermination which would bar it from further effectively processing
the matter, even if all time limitations had not expired. The
legislative history of the Statute indicates Congress' intent to include
reduction-in-force coverage under the negotiated grievance procedure,
absent the parties' exclusion of such coverage. See Legislative History
of Federal Service Labor-Management Relations Statute, Title VII of the
Civil Service Reform Act of 1978, p. 730, 735, 769, November 19, 1979.
Contrary to the Union's position that these employees were covered
neither by the negotiated procedure or a statutory appeals procedure, it
is found that whether the Activity's action was a reorganization or
reclassification was indeed an area which might have been considered
under the negotiated procedure, and the Union's refusal once a grievance
was filed undermined any opportunity for resolution through that
machinery. Under the Union's theory that there is no statutory appeal
procedure or grievance available, these employees have no protection
against a discriminatory or mistaken reduction-in-force. As business
representative Page testified, the grievance procedure was available for
any employee dissatisfaction. Since the grievance machinery does not
preclude grievances concerning reorganizations, it is found that the
Union could have, at the very least, attempted to process the grievance
through the procedures agreed to by the parties.
Here the facts are sufficient to establish discrimination by the
Union which seriously undermined any effort by these employees to
successfully pursue the grievance or appeal, either on their own or with
Union assistance. /10/ The remaining question is, what relief is
available, if any, for these employee's claim that they have failed to
secure any relief. Having answered that their problem might well have
been resolved, if not remedied favorably to them, through the negotiated
grievance machinery, and that the matter might have been considered
under that machinery, it is recommended that the Authority, under the
broad remedial discretion of section 7118(a)(7)(D), order, in addition
to a cease and desist order and notice posting, that the Union provide,
at its expense legal representation, of the employee's choice, to assist
them in seeking to obtain waivers of time limits, both under the
negotiated grievance machinery and the statutory appeals procedure, if
necessary, so that they might process a grievance or appeal relating to
the March 31, 1981 reduction-in-force, and to provide further services
which would have been performed by the Union in assisting these
employees in the reduction-in-force matter, had it not acted
discriminatorily in refusing to assist in the reduction-in-force or to
process the Paige grievance. Finally, it is recommended that the
Authority retain jurisdiction over this matter in order to reconsider
the remedy and provide further appropriate remedial provisions should
they become necessary.
Based on the foregoing, it is recommended that the Authority adopt
the following: /11/
ORDER
Pursuant to section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that Service Employees
International Union, Local 556, AFL-CIO, shall:
1. Cease and desist from:
(a) Conditioning representation under the parties' collective
bargaining agreement of non-members on their joining the Service
Employees International Union, Local 556, AFL-CIO.
(b) Telling employees in the bargaining unit that it will not
process grievances pursuant to the contractual grievance procedure
because of their nonmembership in the Union.
(c) Refusing to process grievances of bargaining unit employees
because they are not members of Service Employees International
Union, Local 556, AFL-CIO.
(d) Soliciting employees to join the Union while those
employees are on duty status.
(e) In any like or related manner, interfering with,
restraining, or coercing any employee in the exercise of the
rights guaranteed by the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action designed and found
necessary to effectuate the policies of the Statute:
(a) Advise all employees in the bargaining unit that the
Service Employees International Union, Local 556, AFL-CIO, will
represent the interests of all employees in the unit without
discrimination and without regard to labor organization
membership.
(b) Upon request, provide employees Patsy K. Paige, Miriam
Gutowski, Marcela Santiago and Earl Kamanu with a legal
representative of their own choosing at the Union's expense, to
allow them to seek a waiver of time limits either under the
grievance machinery or a statutory appeals procedure so they might
seek to process their grievance or file a statutory appeal and to
provide further services which would have been provided by the
Union had it not acted discriminatorily.
(c) Post at the Activity, Navy Exchange, Pearl, United States
Naval Base, Pearl Harbor, Hawaii, copies of the attached notice
marked "Appendix" on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be
signed by the President of the Union and shall be posted and
maintained by him for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places
where notices are customarily posted. Reasonable steps shall be
taken by the Union to ensure that such notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region 8, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: February 28, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT condition representation on nonmembers on their joining the
Service Employees International Union, Local 556, AFL-CIO. WE WILL NOT
tell employees in the bargaining unit that the Service employees
International Union, Local 556, AFL-CIO will not process grievances
pursuant to the contractual grievance procedure because of their
nonmembership in the Union. WE WILL NOT solicit employees to join
Service Employees International Union, Local 556, AFL-CIO while on duty
status. WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce any employees in the exercise of the rights
guaranteed by the Federal Service Labor-Management Relations Statute.
WE WILL NOT refuse to process grievances of bargaining unit employees
because they are not members of Service Employees International Union,
Local 556, AFL-CIO. WE WILL advise all employees in the bargaining unit
that Service Employees International Union, Local 556, AFL-CIO, will
represent the interests of all employees in the unit without
discrimination and without regard to labor organization membership. WE
WILL, upon request, provide employees Patsy K. Paige, Miriam Gutowski,
Marcela Santiago and Earl Kamanu with a legal representative of their
own choosing, at the Union's expense, in order to allow them to seek
waiver of time limits either to process the grievance or under a
statutory appeals procedure and to provide them whatever services the
Union would have provided in this matter had it not acted
discriminatorily.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region 8, whose address is: 350
South Figueroa Street, 10th Floor, Los Angeles, California, 90071, and
whose telephone number is: (213) 798-3805.
--------------- FOOTNOTES$ ---------------
/1/ Section 7131(b) provides:
Sec. 7131. Official time
. . . .
(b) Any activities performed by any employee relating to the
internal business of a labor organization (including the
solicitation of membership . . .) shall be performed during the
time the employee is in a nonduty status.
/2/ See American Federation of Government Employees, Local 1778,
AFL-CIO, 10 FLRA 346, 351 (1982); American Federation of Government
Employees, AFL-CIO, Local 2633 and Veterans , Administration, Regional
Office, Cleveland, Ohio, 2 FLRA 4, 8 (1979).
/3/ Article 19, of the Collective Bargaining Agreement, Reduction In
Force states, in pertinent part:
Section 1. This Article pertains only to regular employees.
Reduction in force shall be defined as an action taken by
Management to increase the efficiency, economy, or effectiveness
of operations, causing the release of an employee through either
separation, demotion, furlough for more than thirty (30) days, or
reassignment requiring displacement. Reduction in force also
occurs when the release of an employee is required due to lack of
work or funds, reorganization, reclassification due to change in
duties, or the need to make a place for a person exercising
reemployment or restoration rights, within the Navy Exchange,
Pearl Harbor.
Section 2. The Employer agrees that prior to giving Unit
members official notice of a proposed reduction in force, the
Union will be notified in advance of the proposed effective date,
the number of employees involved, and the types of positions to be
affected. The Union shall be provided an opportunity to express
its views and offer suggestions regarding the proposed
implementation. The Union agrees to render assistance in
communicating the reason(s) for the reduction in force to members
of the Unit who may be affected. The Union will have the
opportunity to be present at all formal meetings held for the
purpose of issuing reduction-in-force notices.
/4/ Page is a full-time business representative with two years
experience in that position. Page also participated as a union
negotiator and signed the present collective bargaining agreement
between the parties.
/5/ The parties collective bargaining agreement in Article 28,
Grievance Procedures, contains several pertinent provisions concerning
entitlement to representation, including:
Section 2 C.(2). Any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment.
Section 3. Complaints over the following shall not be
processed under this procedure.
(e) The classification of any position.
Section 5. Appeal and Grievance Options. An aggrieved
employee affected by discrimination may choose to raise the matter
under either a statutory appellate procedure or the negotiated
grievance procedure, but not both.
Section 7. An employee or a group of employees may present
grievances to appropriate management officials and have them
adjusted without the intervention of the exclusive representative.
. . .
And, the following concerning processing of a grievance:
Section 11. Step 1. The employee shall first submit the
grievance, in writing . . . within ten (10) calendar days after
the alleged violation. . . . The appropriate level of Union
representation at Step 1 shall be the designated Shop Steward. . .
. The Department Manager shall issue a written decision to the
employee not later than ten (10) calendar days after the receipt
of the grievance. . . .
/6/ With regard to this obligation, the United States Code might well
support this position. It states:
5 U.S.C. 5342(a)(2)(B) defines prevailing rate as:
an employee of a nonappropriated fund instrumentality described
by section 2105(c) of this title who is employed in a recognized
trade or craft, or other skilled mechanical craft, or in an
unskilled, semiskilled, or skilled manual labor occupation, and
any other individual, including a foreman and a supervisor, in a
position having trade, craft, or laboring experience and knowledge
as the paramount requirement. . .
5 U.S.C. 2105(c) states that nonappropriated fund employees are not
employees for the purpose of (1) laws (other than subchapter IV of
Chapter 53 and sections 5550 and 7154 of this title) administered by the
Office of Personnel Management.
/7/ Section 7131(b) of the Statute provides:
Any activities performed by any employee relating to the
internal business of a labor organization (including the
solicitation of membership, elections of labor organization
officials, and collection of dues) shall be performed during the
time the employee is in a non-duty status.
/8/ The Federal Labor Relations Council, found in Department of the
Interior, Bureau of Reclamation, Yuma Project Office, Yuma, Arizona,
FLRC No. 74A-52, that the jurisdiction over certain employees appeals,
particularly a reduction-in-force involved in that case, fell within the
jurisdiction of the Civil Service Commission and the determination of
whether employees were entitled to back pay was for exclusive
determination by the appeals procedure under section 19(d) of the
Executive Order and not the Assistant Secretary. The Council held that
an unfair labor practice complaint may not be used as an alternative
method for obtaining redress for the employees who properly have access
to the appeals procedure. There the Council's rejection seemingly is
based not on any reluctance to remedy the alleged violations, but
instead on finding itself without authority to grant such a remedy. The
Yuma case, however, does not preclude the Authority from granting a back
pay remedy here. The Statute, unlike the Executive Order contains broad
discretionary language for remedying unfair labor practices including
section 7117(a)(7)(D) which includes broad authority to take "such other
action as will carry out the purposes of this chapter". Thus, the
Authority is clearly vested with discretion to grant any reasonable
remedy where it deems such a remedy would effectuate the purposes of the
Statute.
/9/ The private sector cases cited by the General Counsel are
inapposite. Those cases involve matters where the employer plainly
disregarded clear-cut contract provisions without objection from the
exclusive representative and the employees were clearly entitled to make
whole remedies. The General Counsel maintains that uncertainty as to
the potential merit of the grievance should be resolved in favor of the
victims, not the wrongdoer, since it is the Union's wrongdoing that
created the uncertainty. This argument overlooks the fact that in this
case there may well be no wrongdoing for which compensation is due,
since there is a real question as to whether these employees are
entitled under government regulations to retain pay and grade. Further,
it overlooks a crucial element, that the reduction-in-force involved
here was never challenged as discriminatory or mistaken. Moreover,
while the National Labor Relations Board adopts the position that fault
must be assumed, it is not universally accepted. See, N.L.R.B. v. Local
485, International Union of Electrical, Radio and Machine Workers,
AFL-CIO Automative Plating Co. 454 F.2d 17 (2d Cir.) where the Court
found such a remedy speculative and punitive. Compare Truck Drivers,
OCL Drivers, Local 705, 209 NLRB 292 (1974).
/10/ Although the Agency was not charged in this matter, it occurs
that it was at equal fault here in not advising these employees as to
exactly what their appeal rights were in this reduction-in-force. The
record reveals several opportunities for such action by the Activity,
including an opportunity to accept and process the initial grievance on
January 23, 1981 without Union intervention. The Activity must bear
some of the burden herein since its erroneous actions and advice at
least contributed to these employees not having a grievance processed to
resolution, whether satisfactory or unsatisfactory to them.
/11/ Based on the above, it is unnecessary to decide whether the
Union's liability should be limited, as argued at the hearing. Assuming
that a back pay remedy is appropriate however, I agree with the General
Counsel that the reschedulings of the matter for hearing were not
objected to by the Union nor was it alleged that these reschedulings
were in any way improper or that they would create a hardship for the
Union. In such circumstances, it is difficult to envision that the
reschedulings had any connection with limiting the Union's back pay
liability in this matter.