[ v22 p214 ]
22:0214(22)CO
The decision of the Authority follows:
22 FLRA No. 22
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 229
Respondent
and
DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE OF THE SECRETARY, HEADQUARTERS
Charging Party
Case NO. 3-CO-40029
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the
Respondent. The complaint alleged that the Respondent, National
Treasury Employees Union (NTEU) and NTEU Chapter 229 violated section
7116(b)(1) and (8) of the Federal Service Labor -- Management Relations
Statute (the Statute), by failing to comply with section 7114(a)(1) of
the Statute. The alleged violation is that NTEU promulgated a policy to
provide attorneys to represent employees in appeals before the Merit
Systems Protection Board (MSPB) based on whether or not such employees
were Union members. The complaint also alleged that the Respondent
violated these same sections of the Statute when it disseminated a
newsletter entitled "RIF Bulletin #3" in which it stated that attorney
assistance for unit employees filing and/or pursuing appeals to the MSPB
would only be provided to members of the Respondent. The issue before
the Authority is whether the Judge properly found that Respondent NTEU
violated section 7116(b)(1) and (8) of the Statute.
II. Facts
During the period between June 1983, when NTEU was chosen to replace
the incumbent exclusive representative by certain nonprofessional
employees of the Charging Party, Department of Health and Human
Services, Office of the Secretary, Headquarters (HHS), and June 1984,
when NTEU was certified, HHS developed a plan regarding the Office of
the Secretary which would have required a RIF affecting certain unit
employees. Before NTEU was certified as the exclusive representative,
it began to respond to management's proposal in several ways in order to
try to dissuade HHS from separating employees. In order to publicize
these efforts and get more employee support, NTEU Chapter 229, with the
help and advice of NTEU's Assistant Counsel, issued a series of special
bulletins which provided information on how employees could prepare for
and oppose the impending RIF. Bulletings one, two, and four were
published on the letterhead of the local chapter, while RIF Bulletin #3,
the bulletin at issue, was published on NTEU letterhead. Bulletins one
and two were issued prior to NTEU's certification, while three and four
were issued after certification. Prior to the issuance of RIF Bulletin
#3, NTEU's Assistant Counsel learned that a member was not aware that
the Union was available to handle Merit Systems Protection Board (MSPB)
appeals. Therefore, during her review of the bulletin, the Assistant
Counsel added the following paragraph at the end of the bulletin, and
under the heading, "If A RIF Occurs":
The attorney assigned to NTEU Chapter 229 will be available to
provide legal advice and/or assistance in filing and/or pursuing
MSPB appeals to members of NTEU Chapter 229. There is no extra
fee for such assistance. Your union dues will cover such legal
assistance. (Emphasis in original.)
No unit employee was later subjected to a RIF pursuant to HHS'
streamlining program; while NTEU gave advice to unit employees, they
were not asked whether they were NTEU members. During the hearing,
counsel for the General Counsel clarified his position by stating that
the allegations contained in the complaint related only to the
publication and dissemination of RIF Bulletin #3, and that he was not
now alleging that Respondent implemented the policy.
In a sworn statement filed after the hearing, upon the agreement of
the parties, the President of NTEU stated that it was NTEU's position
that it is not required by law to provide representation to any employee
who appeals an action to the MSPB; that NTEU may, at its option,
provide representation to some employees before the MSPB; and that NTEU
may decide whether or not an employee will be represented based upon
membership status with NTEU as well as other factors. This statement is
set forth fully on page 6 of the Judge's Decision.
III. The Judge's Decision
The Judge found that Respondent NTEU violated section 7116(b)(1) and
(8) of the Statute by publishing a statement which continued a policy of
considering union membership as a factor in determining whether to
furnish an attorney to unit employees in appeals before the MSPB. /1/
In this regard the Judge found that NTEU's current policy is the same as
that announced by NTEU's former president in September 1979 to the
effect that NTEU would continue a policy, in effect before enactment of
the Statute, of not furnishing attorneys to represent nonmembers while
furnishing attorneys to represent members. The Judge concluded that it
did not matter that the statement of policy in RIF Bulletin #3 had not
been implemented, since the Authority will find a violation when the
statement reflects an established policy of discrimination.
IV. Positions of the Parties
In its exceptions to the Judge's Decision, NTEU argued, essentially,
that the statement contained in RIF Bulletin #3 did not constitute a
policy statement of the national union; that implementation of a
discriminatory policy is necessary before a violation of section
7116(b)(8) of the Statute can occur; and that it had no obligation
under section 7114(a)(1) of the Statute to provide attorneys to
represent nonmembers in MSPB appeals.
V. Analysis
The Authority finds that the statement in RIF Bulletin #3, in all the
circumstances, created the impression that nonmember unit employees
seeking NTEU's assistance would not be afforded the same standard of
representation as members. Therefore, the statement constituted a
violation of section 7116(b)(1) of the Statute because the clear
implication that nonmember unit employees would not receive the same
level of assistance or standard of representation from the Respondent as
members reasonably tended to interfere with the protected right of
employees under section 7102 of the Statute to refrain from joining a
labor organization. /2/
However, contrary to the Judge, the Authority concludes that by
posting the above statement the Respondent did not fail to comply with
the requirements of section 7114(a)(1) of the Statute to represent the
interests of all unit employees without discrimination and without
regard to labor organization membership, and thus did not violate
section 7116(b)(8) of the Statute. /3/ In this regard, the Authority
notes that the General Counsel does not assert -- and the record does
not establish -- that the Respondent implemented a policy of
discrimination subsequent to the posting of "RIF Bulletin #3," or that
nonmember unit employees were ever denied the assistance of an attorney
in connection with MSPB appeals. On the contrary, the Respondent
presented unrebutted evidence that any unit employee who requested
advice or assistance was provided with such assistance without regard to
membership in the Union, although no unit employee subsequently filed an
appeal with the MSPB. /4/
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of 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 affirmed. Upon consideration of the Judge's
Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommendations only to the extent consistent
with this decision.
The Authority shall dismiss that portion of the complaint which
alleges that the Respondent did not comply with section 7114(a)(1) of
the Statute and thereby violated section 7116(b)(8) of the Statute, and
shall find only that Respondent's conduct constituted an independent
violation of section 7116(b)(1) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the National Treasury
Employees Union shall:
1. Cease and desist from:
(a) Creating the impression that the National Treasury Employees
Union will afford differing standards of employee representation with
respect to appeals to the Merit Systems Protection Board (MSPB) by
employees in units of exclusive recognition on the basis of whether such
employees are members of the National Treasury Employees Union.
(b) Interfering with, restraining, or coercing unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the National Treasury Employees Union or any
other labor organization.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Provide clear notice to all nonmember unit employees seeking
representation by their exclusive representative that the National
Treasury Employees Union will supply attorneys to nonmembers to help in
representational efforts, including representing them on appeals to the
Merit Systems Protection Board, on the same basis as it supplies
attorneys to members.
(b) Post at its Chapter 229 local office and at its normal meeting
places, and at all places where notices to members and other employees
of the Department of Health and Human Services, Office of the Secretary,
Headquarters 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
National Treasury Employees Union, or a designee, and they shall be
posted and maintained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members and other
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
IT IS FURTHER ORDERED that the section 7116(b)(8) allegations of the
complaint be, and they hereby are, dismissed.
Issued, Washington, D.C., June 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, 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 create the impression that the National Treasury
Employees Union will afford differing standards of employee
representation with respect to appeals to the Merit Systems Protection
Board (MSPB) by employees in units of exclusive recognition on the basis
of whether such employees are members of the National Treasury Employees
Union.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
of penalty or reprisal, the National Treasury Employees Union or any
other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce unit employees in the exercise of their rights assured by the
Statute.
WE WILL provide clear notice to all nonmember unit employees seeking
representation from their exclusive representative that the National
Treasury Employees Union will supply attorneys to nonmembers to help in
representational efforts, including representing them on appeals to the
Merit Systems Protection Board, on the same basis as it supplies
attorneys to members.
(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 any of its provisions, they may communicate directly with the
Regional Director, Region III, Federal Labor Relations Authority, whose
address is: 111 -- 18th Street, N.W., Room 700 (P.O. Box 33758),
Washington, D.C. 20033-0758, and whose telephone number is: (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case NO.: 3-CO-40029
NATIONAL TREASURY EMPLOYEES UNION and NTEU CHAPTER 229,
Respondent
and
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
OFFICE OF THE SECRETARY, HEADQUARTERS
Charging Party
Sharyn Danch and
Betty A. Ginsburg,
for the Respondent
Erica F. Cooper
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. NO. 95-454, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor -- Management
Relations Statute, and hereinafter referred to as the Statute, and the
rules and regulations issued thereunder and published at 5 CFR 2411 et
seq.
Pursuant to a charge of an unfair labor practice filed on August 2,
1984, and amended on October 17, the Regional Director of Region III of
the Federal Labor Relations Authority (hereinafter, the Authority)
investigated the charge and, on November 28, 1984, served the complaint
initiating this action.
The complaint alleges that, in or about July 1984, Respondent
"promulgated a policy wherein the decision to provide attorneys employed
by Respondent to represent employees included in the units (for which
Respondent is certified as exclusive, collective-bargaining
representative), in appeals before the Merit Systems Protection Board,
is based solely upon whether such employees are members of Respondent."
See paragraph 6 of G.C. Exh. 1(e). /5/ In answer, Respondent replied
that it had "insufficient information to admit or deny this allegation
at this time." See paragraph 6 to G.C. Exh. 1(f).
The complaint further alleges that, in or about July 1984, Respondent
"disseminated to employees included in the unit . . . , at the Agency's
Washington, D.C. location a newsletter dated July 1984 and entitled 'RIF
Bulletin #3' which stated, inter alia, that attorney assistance from
Respondent for bargaining unit employees filing and/or pursuing appeals
to the Merit Systems Protection Board would only be provided to members
of Respondent." See paragraph 7 of G.C. Exh. 1(e). Respondent admits
this allegation. See paragraph 7 to G.C.Exh. 1(g).
Respondent denies that by such alleged acts and conduct it has failed
and refused to comply with sections 7102 and 7114(a)(1) of the Statute
or thereby violated section 7116(b)(1) and (8) of the Statute, as
alleged in the complaint. /6/
A hearing was held on February 5, 1985, in Washington, D.C. The
General Counsel and Respondent entered appearances and a Stipulation of
Facts (Jt. Exh. 1); introduced documentary evidence; and examined
witnesses. At the hearing, it was agreed that Respondent could offer
into evidence a statement by its President. This statement has been
received and marked as Respondent's Exhibit 4. Briefs were filed by
Respondent on March 6 and by the General Counsel on March 7. Based upon
the record evidence, my observation of the demeanor of witnesses, and
the briefs, I enter the following findings of fact and conclusions of
law and recommend the entry of the following order.
Findings of Fact
1. It is admitted that, at all times material herein, Respondent has
been and is now a labor organization and the Charging Party (also
referred to herein as "DHHS") has been and is now an agency, within the
meaning of section 7103(a)(4) and (3), respectively, of the Statute.
2. It is also admitted that Respondent has been, since May or June,
1984, and is now certified as the exclusive collective bargaining
representative of a unit of the Charging Party's non-professional
General Schedule and Wage Grade employees, and a unit of professional
employees, all located in the Washington, D.C. metropolitan area, and
with certain exceptions not here relevant. These unit employees
predominately work in the DHHS North Building, the Hubert S. Humphrey
Building, and the Mary Switzer Building.
3. The National Treasury Employees Union ("NTEU") was elected the
exclusive representative of approximately 1300-1500 non-professional,
bargaining-unit employees at DHHS in June 1983. The incumbent union
filed a challenge to the election, thereby delaying NTEU's
certification. This challenge ultimately was resolved in favor of NTEU.
In October 1983, some 300 professional employees of DHHS elected NTEU
as their exclusive representative in a separate, unchallenged election.
4. Patricia Randle, Assistant Counsel for NTEU's National Office,
was assigned to work with these DHHS employees, designated Chapter 229,
in June 1983. She is supervised by Sharyn Danch, who is National
Counsel for NTEU. As an employee of the national office, the duties of
Ms. Randle include recruitment, representation, and organizing at the
local level. Her responsibilities at DHHS include organizing the
employees for collective action, recruiting members, and representing
employees and the chapter in bargaining and in administrative
proceedings.
5. During the period between the election for the large
non-professional unit, in June 1983, and its certification in May or
June 1984, NTEU was not the exclusive representative of this unit. NTEU
was active on its behalf, however. Ms. Randle found the unit employees
to be confused about the role of the two unions. Conversations with
unit employees led her to believe that they were upset that the
incumbent union had failed to provide an attorney for pending appeals
before the Merit Systems Protection Board ("MSPB") during a
reduction-in-force ("RIF"), and that many of them had gone out, on their
own, and hired an attorney. In addition, the professional unit, which
elected NTEU as its representative in October 1983, had never previously
been represented; and unit employees were unaware of their rights and
the benefits of having an exclusive representative. Since she was not
able to represent the non-professional unit in matters relating to
collective bargaining, Ms. Randle concentrated her efforts on providing
information, such as advising employees of their statutory rights;
educating them on relevant rules, regulations and procedures; and
keeping them apprised of NTEU's legislative efforts.
5a. During this interim, pre-certification period, DHHS developed a
program for "streamlining" the Office of the Secretary which required a
RIF affecting bargaining unit employees. See Tr. 14, 29-30. Employees
affected by a RIF have appeal rights to the MSPB.
5b. NTEU responded with several actions designed to dissuade the
Agency from separating employees, including lobbying efforts in
Congress, local petition drives, and talks with DHHS. In order to
publicize these efforts, inform the bargaining unit of their progress,
and get more employees involved, Chapter 229, with the help and advice
of Ms. Randle, issued a series of "Special Bulletins" to all employees.
The first one, entitled "Special Bulletin #1," was issued March 26,
1984, and detailed the plan of action. Three more (designated Bulletins
2, 3, and 4) were issued as the RIF threat continued through April,
July, and August 1984. Each of these bulletins provided updates on the
progress of the RIF negotiations, explanations of relevant employee
rights, directions for aiding the lobbying effort, and other specific
information on how employees could prepare for and oppose the impending
RIF.
5c. Prior to the issuance of RIF Bulletin #3, in July of 1984, Ms.
Randle learned that a member of NTEU did not know that Ms. Randle, an
attorney, was available to employees for handling MSPB appeals. The
prior union had not provided attorney assistance. Therefore, during her
review of RIF Bulletin #3, she added the following paragraph at the end
and under a heading, "If A RIF Occurs":
The attorney assigned to NTEU Chapter 229 will be available to
provide legal advice and/or assistance in filing and/or pursuing
MSPB appeals to members of NTEU Chapter 229. There is no extra
fee for such assistance. Your union dues will cover such legal
assistance.
See Jt. Exh. 1(a) emphasis as in the bulletin. The third bulletin
was published on NTEU letterhead. The first, second and fourth
bulletins were published on the letterhead of the local chapter. RIF
Bulletin #3 was observed by management on an employee bulletin board in
the North Building, where it normally would remain for about two weeks.
This same bulletin was also observed by management in the Humphrey
Building.
5d. No unit employee complained to DHHS regarding RIF Bulletin #3.
5e. No unit employee was made subject to a RIF pursuant to the
streamlining program.
6. DHHS reached and signed an agreement with NTEU on July 31, 1984.
The agreement has 33 sections, one of which (section 20) states that:
"This agreement shall not be construed to deny any employee any right of
appeal he/she may have to the Merit Systems Protection Board." See G.C.
Exh. 2. Another (section 27(B)9) provides that RIF notices must contain
information as to "the employee's grievance or appeal rights."
7. Throughout the interim period described in finding 5, above, and
since the NTEU certification at DHHS, no MSPB appeals have been filed by
Chapter 229 of NTEU. Ms. Randle has given advice, through Chapter 229's
Chief Steward, to unit employees and has not questioned whether they
were NTEU members. The Chief Steward, who was not identified as an
attorney, has helped a lot of unit employees, regardless of NTEU
membership. The Chief Steward is still in a "learning process" (Tr.
54). She was told by Ms. Randle that nonmembers of NTEU have the same
rights as members, including "representation before MSPB" (Tr. 56).
8. Ms. Randle cannot herself make policy for NTEU. She has been
with NTEU since 1981 and knows that a former NTEU president, Vincent
Connery, had a policy that attorney assistance would be provided to NTEU
members. She has read an Authority decision concerning this matter, 16
FLRA No. 102. She is unaware of any pronouncement by NTEU's national
office that NTEU policy has changed, on the issue. The present NTEU
President, Robert Tobias, "has not expressly stated what N.T.E.U.'s
policy is," to her knowledge (Tr. 42). She has represented nonmembers
of NTEU before the MSPB and before the Equal Employment Opportunity
Commission.
9. In a sworn statement filed after the hearing, upon the agreement
of the parties (Tr. 50), the present President of NTEU states:
My name is Robert M. Tobias. I am the National President of
the National Treasury Employees Union. In this position, I may
establish and disseminate NTEU's national policy on various issues
including the nature and scope of representation provided to
employees within bargaining units for which NTEU is the exclusive
representative.
The current representational policy of the National Treasury
Employees Union ("NTEU") with regard to appeals to the Merit
Systems Protection Board ("MSPB") for employees within such
bargaining units may be summarized as follows:
NTEU is not required by law to provide representation to any
employee who appeals an action to the MSPB. NTEU may, at its
option, provide representation to some employees before the MSPB,
and may make its decision on whether or not an employee will be
represented on the basis of membership status with NTEU as well as
other factors.
I hereby solemnly swear and affirm that the foregoing is true
and correct.
Counsel for the General Counsel did not file a motion to reopen the
hearing to cross-examine Mr. Tobias, a right which was accorded. See
Tr. 50.
10. During the hearing, the position of the General Counsel was
clarified, as follows:
The General Counsel's position on this case, and the
allegations contained in the complaint relate only to the
publication and posting or dissemination of RIF #3. We do not
allege that Respondent has implemented the policy.
See Tr. 35.
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, /7/ that Respondent has engaged in unfair labor practices, in
violation of 5 U.S.C. Section 7116(b)(1) and (8), by publishing a
statement, in July 1984, which continued an established policy of
considering union membership as a factor in determining whether to
furnish an attorney to a unit employee in appeals before the Merit
Systems Protection Board.
This conclusion is compelled by Authority decisions in National
Treasury Employees Union and National Treasury Employees Union Chapter
121, 16 FLRA 717 (Dec. 4, 1984, hereinafter referred to as "NTEU Chapter
121") petition for review filed sub nom. National Treasury Employees
Union v. FLRA, NO. 85-1053 (D.C. Cir., Jan. 25, 1985); National
Treasury Employees Union, 10 FLRA 519 (1982), enforced sub nom. National
Treasury Employees Union v. Federal Labor Relations Authority, 721 F.2d
1402 (D.C. Cir 1983, hereinafter "NTEU") and American Federation of
Government Workers, AFL-CIO, Local 916, 18 FLRA No. 2 (May 14, 1985,
hereinafter "AFGE Local 916"). Each of these cases holds, inter alia,
that the Statute does not allow a union to distinguish between members
and nonmembers in providing assistance of attorneys, including attorneys
to prosecute appeals before the Merit Systems Protection Board.
See also the recent case of American Federation of Government
Employees, AFL-CIO, 17 FLRA 446 (1985, hereinafter "AFGE"), involving a
union charging nonmembers disparate fees to participate in a class
action suit under the Back Pay Act, and holding that:
The duty of fair representation imposed by the Statute is not
restricted to those proceedings under the sole control of the
exclusive representative as a consequence of its certification.
Rather, when an exclusive representative decides to represent unit
employees in any matter which affects their conditions of
employment, it has the duty under sections 7114 of the Statute to
represent unit employees fairly, and may not discriminate with
regard to that representation on the basis of union membership.
See 17 FLRA at 447.
See also the recent case in National Treasury Employees Union Chapter
204, 18 FLRA NO. 36 (May 24, 1985, hereinafter "NTEU Chapter 204")
holding it to be an unfair labor practice for NTEU to establish
different schedules for members and nonmembers to telephone the union
president to ascertain whether they were on an agency list of employees
tentatively eligible to receive cash rewards. The Authority inferred
the NTEU obtained the list from the agency by virtue of its status as
the employees' exclusive representative and acted in that capacity in
disseminating the information.
I am unpersuaded that the NTEU and NTEU Chapter 121 cases can be
validly distinguished as Respondent argues. See R. Br. 15-20. While
the July 1984 statement here at issue does not flatly state a "members
only" policy, it clearly creates that impression. And, in answering the
complaint, Respondent concedes as much. See paragraph 7 of the answer
and complaint in G.C. Exh. 1(e) and (g).
While here the July 1984 statement was not implemented, this
apparently is not considered significant by the Authority, when the
statement reflects an established policy of discrimination. See
footnote 4 to page 15 of the decision of Administrative Law William B.
Devaney, which the Authority affirmed in AFGE, Local 916, 18 FLRA No. 2.
Judge Devaney distinguishes, on this basis, American Federation of
Government Employees, Local 1778, AFL -- CIO, 10 FLRA NO. 62, 10 FLRA
346 (1982), upon which Respondent here relies. See R. Br. 19-20.
Respondent argues that the July 1984 statement is not an established
policy of discrimination, but, rather, "an entirely different policy"
that that articulated in NTEU and NTEU Chapter 121. Those cases both
involve a September 7, 1979 statement promulgated by NTEU's past
National President, Vincent Connery, to the effect that NTEU would
continue a policy, in effect before enactment of the Statute, of not
furnishing attorneys to represent nonmembers while furnishing attorneys
to represent members. See 10 FLRA at 520 and 527 and 16 FLRA at 728.
NTEU is currently defending its September 9, 1979 policy before the
United States Court of Appeals for the District of Columbia in NO.
85-1053. NTEU has apparently never advised its staff that any different
policy is in effect. See finding 8, above. And this policy was
affirmed by a sworn statement made by the current President for NTEU for
this record. See R. Exh. 4, set forth in finding 9 above, which is a
statement by President Robert Tobias that NTEU "may, at its option,
provide representation to some employees before the MSPB, and may make
its decision on whether or not an employee will be represented on the
basis of membership status with NTEU as well as other factors." There is
no basic difference discernible between this statement of policy and
that involved in NTEU and NTEU Chapter 121. See 10 FLRA at 527 and 16
FLRA at 728.
Respondent argues that RIF Bulletin #3, and the statement therein
referring to legal representation available to NTEU members, did not
constitute a policy statement by NTEU because Ms. Randle wrote it and
she could not state with certainty what the national policy was. See R.
Br. 5-8. It is undisputed, however, that Ms. Randle is a national
officer sent to a pledging chapter to assist it; that she knew that
NTEU policy had been to provide legal assistance to members and, from
her admitted reading of NTEU Chapter 121, must have known that
nonmembers were provided such assistance only on an optional basis. See
16 FLRA at 727. It is also undisputed that RIF Bulletin #3 was posted
on NTEU letterhead, in contrast to the other three union bulletins
issued on the RIF, which went out on letterhead of Chapter 229. See
finding 5c, above. Under these circumstances, Respondent cannot disavow
RIF Bulletin #3 as stating national policy.
The fact that NTEU's Assistant Counsel, Ms. Randle, has not
questioned the union membership of unit employees seeking her help does
not save the day for Respondent. As already explained, the Authority
does not require proof of implementation where a statement of an
established, discriminatory policy is involved. Obviously, the
statement itself tends to serve to screen out nonmembers from soliciting
her help. See the testimony given by Ms. Randle's supervisor, NTEU
Associate Counsel Sharyn Danch, in NTEU, to the effect that she never
questioned union status is rendering assistance to unit employees
because she "assume(d) that cases referred to (her were) cases involving
a member (of NTEU)" (10 FLRA at 532, finding 4).
Respondent also distinguishes NTEU on the basis of the court's ruling
in that case that a union may not provide attorneys only to members
where the representation "pertains directly to enforcement of the fruits
of collective bargaining." See R. Br. 17, arguing that the policy
involved here is "outside" the fruits of collective bargaining. The
Authority, however, views the yardstick of fair representation as
applicable to any matter "which affects (the unit employees') conditions
of employment." See AFGE, 17 FLRA at 447. Appeal rights pursuant to a
FIR would surely be a condition of employment. But, in any event,
Respondent did, through collective bargaining, obtain for unit employees
the "fruit" of having RIF notices contain information as to employees's
appeal rights. See finding 6, above. Appeal rights lead to the MSPB,
which leads to the need of representation by an attorney.
The Remedy
The General Counsel takes the position, consistent with the
Authority's decision in NTEU Chapter 121, 16 FLRA at 718, that Chapter
229 here involved performed only a ministerial function, and seeks no
remedy against it. See G.C. Br. 8. Respondent concurs. See R. Br. 20.
On the basis of the record made in this case, so do I.
As to the national union, a broad cease and desist order similar to
that entered in NTEU Chapter 121, 16 FLRA at 719-720 is deemed
appropriate here and for the same reasons expressed by the Authority in
that case.
Ultimate Findings and Recommended Order
Respondent has engaged in unfair labor practices, in violation of
section 7116(b)(1) and (8) of the Statute.
Accordingly, and pursuant to section 2423.29 of the Rules and
Regulations of the Federal Labor Relations Authority and section 7118 of
the Federal Service Labor -- Management Relations Statute, the Authority
hereby orders that the National Treasury Employees Union shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in units of exclusive recognition on the basis of
whether such employees are members of the National Treasury
Employees Union.
(b) Interfering with, restraining, or coercing unit employees
in the exercise of their right to refrain from joining, freely and
without fear or penalty or reprisal, the National Treasury
Employees Union or any other labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing unit employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) National Treasury Employees Union, by its President, shall
forthwith notify all national office officials, including its
legal staff, and each Chapter President, in writing, that the
National Treasury Employees Union's policy has changed; that the
National Treasury Employees Union will supply attorneys to
nonmembers to help in representational efforts on the same basis
as its supplies attorneys to members to help in representational
efforts including representing them on appeals to the Merit
Systems Protective Board; and that the prior policy to the
contrary is hereby withdrawn and rescinded.
(b) National Treasury Employees Union will represent the
interests of all employees in units where it holds exclusive
recognition without discrimination and without regard to labor
organization membership.
(c) Post at its national headquarters, at the local business
office of each of its chapters, and at each agency or activity,
including but not limited to Department of the Health and Human
Services, Office of the Secretary, Headquarters, for which the
National Treasury Employees Union, and/or any chapter of the
National Treasury Employees Union holds exclusive recognition, and
at all places where notices to members and other employees 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
National Treasury Employees Union and they shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members and other
employees are customarily posted. The National Treasury Employees
Union shall take reasonable steps to insure that such Notices are
not altered, defaced or covered by any other material.
(d) Submit appropriate signed copies of such Notices to the
Department of Health and Human Services, Office of the Secretary,
Headquarters, Washington, D.C.; and, upon request, to an
appropriate officer of each other agency or activity for which the
National Treasury Employees Union and/or any chapter of the
National Treasury Employees Union holds exclusive recognition, for
posting in conspicuous places where the respective unit employees
are located, where that shall be maintained for a period of 60
consecutive days from the date of posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region III, 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.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: June 24, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) The Judge found that NTEU Chapter 229 had acted only in a
ministerial capacity. This is consistent with the position of the
General Counsel and the Respondent taken during the hearing, and is not
at issue before the Authority. See National Treasury Employees Union
and National Treasury Employees Union Chapter 121, 16 FLRA 717, 718
(1984), petition for review filed sub nom. National Treasury Employees
Union v. FLRA, NO. 85-1053 (D.C. Cir., Jan. 25, 1985).
(2) American Federation of Government Employees, AFL-CIO, Local 916,
18 FLRA NO. 2 (1985), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO, Local 916 v. FLRA, NO.
85-2011 (10th Cir., July 10, 1985); National Treasury Employees Union
and National Treasury Employees Union Chapter 121, 16 FLRA 717 (1984),
supra; and National Treasury Employees Union, 10 FLRA 519 (1982),
aff'd, 721 F.2d 1402 (D.C. Cir. 1983).
(3) Section 7114(a)(1) provides, in pertinent part:
Section 7114. Representation rights and duties
(a)(1) . . . An exclusive representative is responsible for
representing the interests of all employees in the unit it
represents without discrimination and without regard to labor
organization membership.
(4) See American Federation of Government Employees, Local 1778,
AFL-CIO, 10 FLRA 346 (1982), in which the Authority specifically
declined to affirm the Judge's findings that the union Respondent had
violated section 7116(b)(8) by failing to comply with section 7114(a)(1)
of the Statute since the record failed to establish that there was
disparate treatment in the representation of nonmembers by the union.
(5) "G.C. Exh." refers to the exhibits of the General Counsel. Other
abbreviations to be used herein are as follows. "R. Exh." refers to the
exhibits of Respondent and "Jt. Exh." to the joint exhibits. "Tr."
refers to the transcript. "G.C. Br." refers to the brief of the General
Counsel and "R. Br." to that of Respondent.
Corrections to the transcript are attached hereto and are made
pursuant to 5 C.F.R. 2423.19(r).
(6) These statutory provisions are as follows:
Section 7102 concerns "Employees' rights" and provides, in pertinent
part, that:
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 7114(a)(1) provides that:
A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
membership.
Section 7116 delineates "Unfair labor practices" and Section 7116(b)
provides, in pertinent part, that: "it shall be an unfair labor
practice for a labor organization --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
or
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(7) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
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 afford differing standards of employee representation to
employees in units of exclusive recognition on the basis of whether such
employees are members of the National Treasury Employees Union.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
or penalty or reprisal, the National Treasury Employees Union or any
other labor organization.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce unit employees in the exercise of their rights assured
Statute.
WE HEREBY NOTIFY all members and all employees in all units in which
we hold exclusive recognition that the National Treasury Employees
Union's policy has changed; that the National Treasury Employees Union
will supply attorneys to nonmembers to help in representational efforts
on the same basis as it supplies attorneys to members including
representing them on appeals to the Merit Systems Protection Board; and
that the previous policy to the contrary is rescinded.
WE WILL represent all employees in units where we hold exclusive
recognition without discrimination and without regard to labor
organization membership.
(Agency or Activity)
Dated: . . .
By: (Signature)