22:0739(85)CO - AFSCME Local 2477 and Tyrone M. Bryant -- 1986 FLRAdec CO
[ v22 p739 ]
22:0739(85)CO
The decision of the Authority follows:
22 FLRA No. 85
AMERICAN FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES, LOCAL 2477,
AFL-CIO
Respondent
and
TYRONE M. BRYANT, an INDIVIDUAL
Charging Party
Case No. 3-CO-40033
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent 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 adopts the Judge's
findings, conclusions, and recommended Order. /1/
ORDER
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 orders that
the American Federation of State, County, and Municipal Employees, Local
2477, AFL-CIO, shall:
1. Cease and desist from:
(a) Refusing and/or failing to provide legal representation to Mr.
Tyrone M. Bryant or any other unit employee in adverse action
proceedings under the Library of Congress' regulations because Mr.
Bryant and/or any other employee had exercised their statutory right to
support a rival labor organization.
(b) Interfering with, restraining, or coercing Mr. Bryant or any
other unit employee in the exercise of their right to support a rival
labor organization freely and without fear of penalty or reprisal.
(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) Provide legal representation to Mr. Tyrone M. Byrant and all
other unit employees in adverse action proceedings without
discrimination and without regard to their activities in support of a
rival labor organization.
(b) Post at its business offices and its normal meeting places,
including all places where notices to members and employees of the
Library of Congress 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 Local 2477, American Federation of State, County, and
Municipal Employees, AFL-CIO, or his designee, and they shall be posted
and maintained for 60 consecutive days thereafter in conspicuous places,
including all places where notices to members and to other employees are
customarily posted. The President of Local 2477, American Federation of
State, County, and Municipal Employees, AFL-CIO, shall take reasonable
steps to ensure that such Notices are not altered, defaced, or covered
by any other material.
(c) Submit appropriate signed copies of such Notices to the Library
of Congress, for posting in conspicuous places where the respective unit
employees are located, where they shall be maintained for a period of 60
consecutive days from the date of posting.
(d) 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.
Issued, Washington, D.C. July 28, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
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 refuse or fail to provide legal representation to Mr.
Tyrone M. Bryant or any other unit employee in adverse action
proceedings under the Library of Congress' regulatins because Mr. Bryant
or any other unit employee had exercised their statutory rights to
support a rival labor organization.
WE WILL NOT interfere with, restrain, or coerce Mr. Bryant or any
other unit employee in the exercise of their right to freely and without
fear of penalty or reprisal to support a rival labor organization.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide legal representation to Mr. Tyrone M. Bryant and
other unit employees in adverse action proceedings without
discrimination and without regard to their activities on behalf of a
rival labor organization.
(Labor Organization)
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 III,
whose address is: 1111 18th Street, NW., 7th Floor, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CO-40033
AMERICAN FEDERATION OF STATE, COUNTY, AND
MUNICIPAL EMPLOYEES, LOCAL 2477, AFL-CIO
Respondent
and
TYRONE M. BRYANT, An Individual
Charging Party
Carolyn J. Dixon, Esquire
For the General Counsel
Alice L. Bodley, Esquire
James E. Mundy, Esquire
For the Respondent
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101, et seq., and the Rules and Regulations issued thereunder.
Pursuant to a charge filed on September 20, 1984, by Tyrone M.
Bryant, an individual, a Complaint and Notice of Hearing was issued on
November 30, 1984, by the Regional Director for Region III, Federal
Labor Relations Authority, Washington, D.C. The Complaint alleges that
the American Federation of State, County, and Municipal Employees, Local
2477, AFL-CIO, (hereinafter called the Union or Respondent), violated
Sections 7116(b)(1) and (8) of the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute), by virtue of its
actions in refusing to represent Mr. Tyrone M. Bryant in an adverse
action proceeding under the Library of Congress Regulations because of
Mr. Bryant's activities on behalf of a rival labor organization.
A hearing was held in the captioned matter on February 14, 1985, in
Washington, D.C. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post hearing briefs on March 28, 1985, 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,
conclusions and recommendations.
Findings of Fact
The Union is the exclusive representative of the Library of Congress'
nonprofessional employees, including the Special Police. The Union is
also a member of the District Council 26, which is an organization
chartered by the American Federation of State, County and Municipal
Employees (AFSCME) to the service the members of its affiliated locals.
/2/ The functions of the District Council 26 are set forth in its
Constitution and include the following: "to assist member locals with
grievances, complaints, appeals, negotiations, contracts, organizational
matters, recruiting, publicity and promotional work in general; and to
obtain and provide adequate legal representation for locals in the
processing of grievances, complaints and other appropriate actions on
behalf of members." In discharging these responsibilities District
Council 26 utilizes the services of an executive director and other
support staff. /3/ The executive director is the administrative and
executive officer of the Council. The Constitution of District Council
26 specifically mandates that the executive director's position be a
full time one and further provides for a general description of job
duties associated with that position. The executive director and his
support staff are paid by and employed by District Council 26. District
Council 26 is funded exclusively from the union dues collected from the
various affiliated locals.
Since November 1981, James E. Mundy has occupied the position of
Executive Director of District Council 26. /4/ As such, Mr. Mundy
performs the duties enumerated for the executive director in the
Constitution of District Council 26 which, in pertinent part, include
the following: represents unit employees in grievances and adverse
actions; represents the constituent locals in representation matters
with the Federal Labor Relations Authority (FLRA); and files unfair
labor practice charges and appeals with the FLRA on behalf of member
locals. Specifically, with respect to adverse actions, Mr. Mundy has
admittedly represented numerous unit employees since his tenure as
Executive Director of District Council 26 including: Shirley Whetstone,
Marzella Rhodes, Roosevelt Davis and Pamela Paris. Former District
Council 26 Deputy Director Lynn Sylvester also represented unit
employees in adverse actions during her tenure including: Mary Geiger,
Marzella Rhodes and Shirley Whetstone. Thus, as described above, the
Executive Director and Deputy Director of District Council 26 provides
as a service to its member locals, representation for unit employees in
grievances and adverse actions. /5/ While the evidence establishes that
the Union and/or Mr. Mundy and other agents of District Council have
consistently represented unit employees in adverse actions held pursuant
to the Library of Congress regulations, their representational status
was personal to the unit employees involved and did not flow from the
union's certification as exclusive representative. In the absence of a
request to the Union that it be an employee's personal representative in
the adverse action proceeding, it is clear that the Union has no legal
standing in adverse action proceeding.
Since August 1968, Tyrone Bryant has been employed as a Special
Police Officer at the Library of Congress and has been a member of
Responde;t's bargaining unit.
On May 31, 1983, Officer Bryant became involved in an incident with
his supervisor, Captain Romanelli, over Officer Bryant's use of the
Library of Congress parking lot. This incident resulted in Officer
Bryant's filing an oral grievance in early June 1983. /6/ At Officer
Bryant's request, Respondent's Steward Edward Jackson undertook
representation of Officer Bryant in the grievance process. The
grievance was subsequently denied by the Library of Congress on June 14,
1983.
Two and one-half months after the parking lot incident, on August 15,
1983, Officer Bryant was informed by the Library of Congress that he
would receive a proposed adverse action, i.e., reprimand for his
participation in the parking lot incident. Officer Bryant immediately
contacted Union Steward Edward Jackson and requested union
representation. Steward Jackson agreed and accompanied Officer Bryant
to the Library of Congress' division office on August 16, 1983, where
Officer Bryant was officially served notice of the proposed adverse
action. /7/ Steward Jackson was also given a copy of the letter of
proposed adverse action against Officer Bryant. Steward Jackson then
told Officer Bryant that this proposed adverse action would be appealed
because it was wrong and constituted nothing but retaliation against
Officer Bryant for his involvement in union activities and his filing of
complaints against the Library of Congress. A response to the proposed
adverse action was prepared and forwarded to the Agency on September 7,
1983. On October 4, 1983, Steward Jackson, forwarded to the Agency a
request under section 7114(b)(4) of the Statute for a copy of a
counselling memorandum which had been placed in Officer Bryant's
personnel file by Captain Romanelli sometime earlier. The Library of
Congress responded to Steward Jackson by letter dated October 11, 1983,
and requested Officer Bryant's written permission for release of the
requested document to Steward Jackson. Officer Bryant then signed a
letter prepared by Steward Jackson authorizing release of the document
to Steward Jackson. This letter dated October 20, 1983, to the Library
of Congress also designated Respondent's Steward Jackson as Officer
Bryant's representative in the proposed adverse action. On October 21,
1983, Officer Bryant received the Library of Congress' decision on the
proposed adverse action which was the insertion of a reprimand in
Officer Bryant's personnel file. The Library of Congress also informed
Officer Bryant of his appeal rights. Specifically, Officer Bryant could
appeal the reprimand under the Library of Congress' adverse action
appeal procedures which would entitle Officer Bryant to a hearing before
an independent arbitrator and give him the right to be represented by a
representative of his choosing. On October 28, 1983, Officer Bryant
filed a notice of appeal of the adverse action and specifically
designated Mr. Edward Jackson, AFSCME Local 2477, as his representative.
Mr. Jackson also signed this notice of appeal acknowledging himself as
representative of Officer Bryant. Subsequently, the Library of Congress
issued several communications to Mr. Edward Jackson in his capacity as
Union Steward. By letter dated December 27, 1983, the Library of
Congress informed Steward Jackson that a list of arbitrators would be
forwarded to him for selection in the adverse action hearing. On
January 20, 1984, the Library of Congress again wrote to Steward Jackson
in order to schedule a time and place for selecting the arbitrator in
Officer Bryant's adverse action hearing. When Steward Jackson did not
respond to the letter of January 20, 1984, /8/ the Library of Congress
contacted Marzella Rhodes, the president of the Local Union. In a
letter dated April 5, 1984, the Library of Congress notified the Union
Bryant's case would be placed on the inactive list. Upon receiving a
copy of the April 5, 1984 letter to the Union, Officer Bryant wrote to
the Union on April 12, 1984, and requested continued representation in
connection with his adverse action appeal. /9/
In his letter to Ms. Marzella Rhodes, Officer Bryant referred to
evidence given to the Union during a Federal Labor Relations Authority
representation hearing in January 1984, namely that the Union was
representing him, Officer Bryant, in his appeal of the adverse action.
The representation matter referred to by Officer Bryant concerned an RO
petition filed with the Washington Regional Office by the Fraternal
Order of Police (FOP) in Case No. 3-RO-40001. The FOP was seeking in
the RO petition exclusive recognition for a part of the bargaining unit,
i.e., the Special Police, currently being represented by the Union.
Officer Bryant had signed the RO Petition on behalf of the FOP which was
initially filed on October 27, 1983. A hearing on this petition was
held before the Washington Regional Office on January 25, 26, 27 and 30,
1984. District Council 26 Executive Director James Mundy represented
the Respondent Union at this hearing. One of the issues addressed at
the hearing was the adequacy of Respondent's representation of the
Special Police as part of Respondent's bargaining unit. Accordingly,
Mr. Mundy elicited evidence at the hearing on Respondent's
representation of the Special Police as part of Respondent's bargaining
unit. Accordingly, Mr. Mundy elicited evidence at the hearing on
Respondent's representation of the Special Policy Officers.
Specifically, evidence was adduced with respect to Respondent's
representation of Special Police Officers in adverse action matters. In
this regard, Mr. Mundy called as a witness for the Respondent, Ms.
Marzella Rhodes, president of the Local Union. In response to questions
proferred by Mr. Mundy, Ms. Rhodes testified that the Union, through its
Steward, Edward Jackson, was currently representing Officer Bryant in
the subject adverse action appeal. Ms. Rhodes further testified that
Respondent had just received a letter from the Library of Congress
addressed to Steward Jackson concerning the scheduling of a time and
place for the selection of an arbitrator for Officer Bryant's hearing.
In order to further buttress the claim of Respondent's adequate
representation of Special Police Officers, Mr. Mundy then called as a
witness Banks Johnson, a former shop steward. Mr. Johnson testified
that the Union was representing Officer Bryant in the adverse action
appeal and that he and Steward Jackson were working on it. In addition,
Mr. Mundy submitted into the record of the hearing the notice of appeal
of the adverse action filed by Officer Bryant on October 28, 1983, which
designated the Union and Steward, Edward Jackson, as his representative.
Thus, based on these representations made by Respondent at the hearing,
Officer Bryant stated in his letter of April 12, 1984, to Ms. Rhodes
that he wanted the Union to pursue its representation of him in the
adverse action appeal. Officer Bryant further stated that the Union's
failure to continue its representation of him would result in his filing
an unfair labor practice charge against the Union. A copy of the letter
to Ms. Rhodes was also sent to Mr. Mundy.
Within a week to ten days of the date of Officer Bryant's letter to
Ms. Rhodes, the Union contacted Officer Bryant and informed him that Mr.
Mundy wanted to meet with him for purposes of discussing his adverse
action appeal. /10/ A secretary employed by the Union then scheduled a
date and time with Officer Bryant for his meeting with Mr. Mundy.
Officer Bryant and Mr. Mundy met at the Union's office on or about April
24, 1984. /11/ Mr. Mundy began the meeting by asking Officer Bryant if
he were a lawyer. Officer Bryant told Mr. Mundy that he was not a
lawyer but that he knew a little about the law. Mr. Mundy then asked
Officer Bryant why he did not represent himself in this case and Officer
Bryant replied, "If I represent myself in this case, then I would have a
fool for a client." Whereupon Mr. Mundy remarked that the Union did not
have to represent unit members in adverse actions. When Officer Bryant,
then asked whose responsibility it was to represent him, Mr. Mundy did
not respond. Mr. Mundy then changed the subject and told Officer Bryant
he was a traitor for signing the FOP petition. Mr. Mundy further
indicated he wanted Officer Bryant to sign some type of disclaimer of
responsibility for Mr. Mundy in representing him in the adverse action.
/12/ Mr. Mundy then asked Officer Bryant to withdraw the FOP petition.
/13/ Officer Bryant replied, "That is a horse of a different color."
Officer Bryant then informed Mr. Mundy that he was there asking for
representation and was not there to discuss the petition. At that
point, Mr. Mundy dropped his discussion of the FOP petition and began
reviewing the documents and discussing the merits of Officer Bryant's
adverse action case. He told Officer Bryant after reviewing the
evidence that he had a strong case. Mr. Mundy based his opinion on the
fact that the Agency had waited two and one-half months after the
incident to take the adverse action. Mr. Mundy opined that an
arbitrator would take a very hard look at the timeliness of the Agency's
actions.
Subsequently, Mr. Mundy initiated and held two more meetings with
Officer Bryant in which they reviewed the evidence in the adverse action
appeal. During these meetings, Mr. Mundy told Officer Bryant to try to
find some witnesses to the parking lot incident who would testify on his
behalf at the adverse action hearing. However, Mr. Mundy felt that
based on the known facts alone, Officer Bryant's case had merit. These
meetings between Mr. Mundy and Officer Bryant occurred in May and June
of 1984 and were held at the Union's office in the James Madison
Building.
Mr. Mundy was also in contact with the Library of Congress
representatives during June and July of 1984, scheduling and
rescheduling hearing dates for Officer Bryant's adverse action hearing.
The first set of dates (July 26 and 27, 1984) selected by the Library of
Congress and Mr. Mundy was cancelled well beforehand due to a scheduling
conflict. A second set of dates (August 16 and 17, 1984) were also
cancelled. Mr. Mundy and the Agency finally agreed to set the dates of
October 4 and 5, 1984, for the adverse action hearing.
During the time Mr. Mundy was representing Officer Bryant, as set
forth above, the FOP representation petition was pending before the
Washington Regional Office of the FLRA. On July 18, 1984, Region III
issued its decision, finding that the FOP petitioned for unit was
appropriate and directed an election between the FOP and the Union for
the individuals employed as Special Police. The Region's decision was
served on the Union's designated representative, Mr. Mundy.
After the Region's decision was issued, Mr. Mundy decided that he
would no longer represent Officer Bryant in his adverse action appeal.
Mr. Mundy then called Officer Bryant and scheduled a meeting with him
for September 12, 1984. At the meeting in the Union's office, Mr. Mundy
told Officer Bryant that since his (Mr. Mundy's) salary was paid by the
District Council and he represented the Local Union, there was a
conflict of interest in his representing Officer Bryant because of
Officer Bryant's support of the FOP, a rival labor organization. Mr.
Mundy then told Officer Bryant he would no longer represent him in the
appeal of his adverse action. /14/ Officer Bryant, stunned, asked Mr.
Mundy, "Who is going to represent me?" Mr. Mundy replied, "It doesn't
matter to me who represent you. I suggest you proceed forward with your
case." Thereafter, on October 1 and 9, 1984, Officer Bryant requested
the Library of Congress and the arbitrator to grant a postponement of
the adverse action hearing as he was left without representation.
Officer Bryant's case is currently on indefinite postponement.
Mr. Mundy admits that in certain proceedings, namely those
proceedings where the Union has authority to act as principal, Council
26 acts as agent for the Union. However, Mr. Mundy denies acting as
agent for the Union in adverse actions since the Union has no standing
as principal in such situations. To the extent that he, in the past,
represented unit employees in adverse actions under the Library of
Congress adverse action regulations, he points out that he was merely
acting as the designated representative of the affected employee and not
the agent of the Union. Mr. Mundy further admits that the Regional
Director's "order of election" prompted him to cease representing Mr.
Bryant. In this latter context, he points out that the sole reason he
withdrew was his opinion that he would be violating the Cannons of Legal
Ethics by representing an individual who had taken a position contrary
to that of the Union which employs him.
Discussion and Conclusions
The General Counsel takes the position that the District Council was
the agent of the local Union and in such circumstances the Union was
responsible for the actions of Mr. Mundy in refusing to represent Mr.
Bryant under the Library of Congress' adverse action procedure.
Further, according to the General Counsel, since Mr. Mundy, contrary to
his past practice, refused to continue to represent Mr. Bryant in the
adverse action proceeding because of his, Mr. Bryant's support of a
rival union, the Union not only failed in its duty of fair
representation, but also interfered with, restrained and coerced Mr.
Bryant in the exercise of his rights accorded by the Statute and hence
violated Sections 7116(b)(1) and (8) of the Statute.
The Union takes the position that it has no obligation to represent
employees in adverse actions under the Library of Congress regulations
since its sole standing in such proceedings is that of the personally
selected representative of the affected employee. In support of this
position the Union relies on the decision of the undersigned
Administrative Law Judge in Library of Congress and American Federation
of State, County, and Municipal Employees, Local 2910, Case No.
3-CA-40116, OALJ-84-87, July 12, 1984. To the extent that a contrary
conclusion is reached, the Union takes the further position that it was
not guilty of an unfair labor practice since the record evidence
establishes that Mr. Mundy was not in any event acting as agent of the
Union but rather as the employee's personal representative. Finally,
the Union takes the position that "even if the Union can or must
represent employees in adverse action proceedings, no unfair labor
practice occurred in this case" since the record evidence establishes
that Mr. Mundy declined to further represent Mr. Bryant not because of
his support of a rival labor organization but rather because of his
opinion that he would be violating the Cannons of Legal Ethics imposed
upon Attorneys if he continued representing an employee who had taken a
position contrary to that of a Union which employs him.
Contrary to the contention of the Union, I find that Mr. Mundy was
acting as agent for the Union when he refused to continue representing
Mr. Bryant. The Union's sole basis for denying the existence of agency
status for Mr. Mundy, the Executive Director of the Council, is the
Union's absence of any independent standing in adverse action
proceedings under the regulations of the Library of Congress. However,
the absence of standing in adverse action proceedings does not in and of
itself negate a finding of agency. An agency relationship is not
determined by the forum that the alleged representative operates in but
rather is determined by the powers conferred upon the alleged
representative is by the principal, here the Union. Where the alleged
representative is empowered to act in the principal's stead, the
representative becomes the principal's agent and the principal is
responsible for the representative's actions. The fact that the
principal has no legal standing in a particular forum does not destroy
the agency-principal relationship. Of course, the agent standing in the
stead of the principal is subject to any restrictions applicable to the
principal.
In the instant case, Mr. Bryant was originally represented in the
adverse action proceeding by a union steward. Thereafter, due to the
retirement of the union steward, and pursuant to a letter from Mr.
Bryant to the Union demanding another union representative in the
adverse action proceeding under threat of a ULP, the Union, without any
further contact with Mr. Bryant, arranged for Mr. Mundy, who was
admittedly its agent in other proceedings, to represent Mr. Bryant.
Thus, while it is true that no additional money over and above Mr.
Mundy's salary as Executive Director of the District Council was charged
for such representation, the fact remains that the Union, in accordance
with its advertised services to union members, did provide Mr. Bryant
with a representative in the adverse action proceeding, namely Mr.
Mundy. To the extent that the Union provided Mr. Bryant, as part of its
services, Mr. Mundy stood in the Union's stead and became an agent of
the Union. Being an agent of the Union, the Union was responsible for
Mr. Mundy's subsequent actions in the adverse action proceedings.
The record establishes and I so find, that Mr. Mundy resented the
fact that Mr. Bryant had exercised his statutory rights and sponsored
and/or assisted a rival labor organization in an attempt to unseat the
Union as the exclusive representative of the Special Police employed by
the Library of Congress. Subsequently, when the rival labor
organization succeeded in its attempt to have an election scheduled, Mr.
Mundy admittedly ceased representing Mr. Bryant in the adverse action
proceeding on the alleged ground that the continued representation of
Mr. Bryant would result in a breach of the Cannons of Legal Ethics.
Thereafter, no attempt was made by the Union to secure an alternate
representative for Mr. Bryant in his adverse action proceeding.
While I do not quarrel or take issue with Mr. Mundy's conclusion that
his continued representation of Mr. Bryant, due to his personal feelings
concerning Mr. Bryant's actions in aiding and abetting a rival union,
might well constitute a violation of the Cannons of Legal Ethics, the
fact remains that Mr. Bryant because of his exercise of a statutory
right to support a rival labor organization was, contrary to the past
practice of the Union, denied by the Union's agent, Mr. Mundy,
representation equal to that afforded by the Union to other unit
employees in adverse action proceedings. Inasmuch as Mr. Mundy was the
Union's agent, Mr. Mundy's actions, namely refusing to represent a unit
employee because of his dissident activity, are attributable to the
Union. The Union, cannot escape liability on the ground that its
agent's refusal to continue to represent Mr. Bryant was because of the
Cannons of Legal Ethics and not Mr. Bryant's dissident activity. Being
responsible for its agent's activity, it was incumbent upon the Union to
secure the services of another representative for Mr. Bryant who would
not be encumbered by loyalty to the Union and animosity to Mr. Bryant
for his participation in activities protected by the Statute.
Inasmuch as the record makes it clear that the reason Mr. Bryant was
denied continued representation in his adverse action proceeding was his
support for a rival union, I am constrained to find based upon
applicable Authority precedent that the Union breached its duty of fair
representation in violation of Sections 8(b)(1) and (8) of the Statute
when it ceased giving Mr. Bryant representation in the adverse action
proceedings being held pursuant to the Library of Congress' regulations.
American Federation of Government Employees and SSA, 17 FLRA No. 72.
To the extent that the Union relies on my recommended decision in
Library of Congress and American Federation of State, County, and
Municipal Employees, Local 2910, supra, as a defense to its actions, I
find such case to be distinguishable. The aforementioned case dealt
solely with the question of whether the Union's right to information
under Section 7114(b) of the Statute was applicable to an adverse action
proceeding held pursuant to the Library of Congress' regulations wherein
the Union's presence was not based upon its standing as the exclusive
representative but rather its selection by the affected employee as his
personal representative.
Here the sole issue is the denial of fair representation because of a
unit employee's activities on behalf of a rival union and not what
statutory rights are available to a union once it undertakes the
representation of an employee in a forum where its standing is merely
that of a personal representative. The fact that a union might not be
able to utilize its statutory Section 7114(b) rights to information in
such forum is no defense to its failure to abide by its past practice of
providing legal counsel to unit employees in adverse actions. A
dissident unit employee is entitled to the same representation from its
exclusive representative as a loyal unit employee. To the extent that
the union representative's status is confined to that of a personal
representative with no Section 7114(b) rights, then, that is all the
representation the affected employee is entitled to.
Having found that the Union violated Sections 7116(b)(1) and (8) of
the Statute, it is hereby recommended that the Federal Labor Relations
Authority, issue the following:
ORDER
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 American Federation of State, County, and Municipal Employees,
Local 2477, AFL-CIO, shall:
1. Cease and desist from:
(a) Refusing and/or failing to provide legal representation to
Mr. Tyrone M. Bryant or any other unit employee in adverse action
proceedings under the Library of Congress' regulations because Mr.
Bryant and/or any other employee had exercised their statutory
right to support a rival labor organization.
(b) Interfering with, restraining, or coercing Mr. Bryant or
any other unit employee in the exercise of their right to support
a rival labor organization freely and without fear of penalty or
reprisal.
(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) Provide legal representation to Mr. Tyrone M. Bryant and
all other unit employees in adverse action proceedings without
discrimination and without regard to their activities in support
of a rival labor organization.
(b) Post at its business offices and its normal meeting places,
including all places where notices to members and employees of the
Library of Congress 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 Local 2477, American Federation of State, County, and
Municipal Employees, AFL-CIO, or his designee and they shall be
posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all places where notices to members
and to other employees are customarily posted. The President of
Local 2477, American Federation of State, County, and Municipal
Employees, AFL-CIO, shall take reasonable steps to insure that
such Notices are not altered, defaced, or covered by any other
material.
(c) Submit appropriate signed copies of such Notices to the
Library of Congress, for posting in conspicuous places where the
respective unit employees are located, where they shall be
maintained for a period of 60 consecutive days from the date of
posting.
(d) 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/ BURTON S. STERNBURG
BURTON S. STERNBURG
Administrative Law Judge
Dated: May 15, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Authority notes that the Judge's finding of a section
7116(b)(8) violation is based upon a failure to comply with the duty of
fair representation set forth in section 7114(a)(1) of the Statute.
(2) The other locals comprising District Council 26 are as follows:
Local 2478 - U.S. Commission of Civil Rights; Local 2600 - U.S. Patent
Office; Local 2830 - U.S. Justice Department; Local 2910 - Library of
Congress (professional employees); Local 3097 - U.S. Justice Department
and Local 2027 - ACTION and Peace Corps.
(3) The Constitution of District Council 26 also provides for the
election of officers of the District Council by delegates from its
constituent locals and the appointment of an Executive Board.
(4) Mr. Mundy is also an attorney and a member of the District of
Columbia Bar. However, neither a law degree nor bar membership is a
requirement for the position of executive director with the District
Council as that position is described in the Constitution of District
Council 26.
(5) In its newsletters, bulletins and flyers, Respondent has detailed
and advertised to unit employees that such services of the District
Council are available to the local and its unit employees.
(6) The grievance was filed under the parties' negotiated grievance
procedure.
(7) The notice of proposed adverse action contained provisions for
the affected employee to submit an oral or written reply and to have the
services of a personal representative in preparing a reply.
(8) Steward Jackson had been on disability leave since January 1984.
(9) In early April 1984, Officer Bryant received a letter from
Steward Jackson. Mr. Jackson, who was then on disability leave,
informed Officer Bryant that he might retire from the Government. He
subsequently retired from Federal service in late April 1984.
(10) Mr. Mundy testified that Officer Bryant's April 12, 1984, letter
to Ms. Rhodes was what prompted this contact with Officer Bryant. Mr.
Mundy further testified that he picked up several open cases left by
Steward Jackson when he retired in late April 1984, one of which was
Officer Bryant's adverse action appeal.
(11) Mr. Mundy recalled the date of the first meeting with Officer
Bryant as May 6, 1984. Mr. Mundy and Officer Bryant both testified that
three meetings were held on this matter, i.e., Mr. Bryant's appeal of
the adverse action.
(12) It was Mr. Mundy's intent to secure an agreement from Officer
Bryant that if Officer Bryant's adverse action appeal was lost, then
Officer Bryant would not use it as an issue in any Authority ordered
election between FOP and Respondent.
(13) The representation petition was still pending at this time as
the Regional Director had not yet issued his decision on the matter.
(14) In response to a question from his counsel, Mr. Mundy admitted
that the Regional Director's order of election was the reason for his
decision not to continue representing Mr. Bryant, since "this would mean
that I would be representing somebody who is campaigning to get out of
the bargaining (unit) that I represent."
APPENDIX
NOTICE TO ALL MEMBERS AND 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 refuse or fail to provide legal representation to Mr.
Tyrone M. Bryant or any other unit employee in adverse action
proceedings under the Library of Congress' Regulations because Mr.
Bryant or any other unit employee had exercised their statutory rights
to support a rival labor organization.
WE WILL NOT interfere with, restrain, or coerce Mr. Bryant or any
other unit employee in the exercise of their right to freely and without
fear of penalty or reprisal to support a rival labor organization.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide legal representation to Mr. Tyrone M. Bryant and
other unit employees in adverse action proceedings without
discrimination and without regard to their activities on behalf of a
rival labor organization.
(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 of the Federal Labor Relations Authority, Region III,
whose address is: 1111 18th Street, NW., 7th Floor, P.O. Box 33758,
Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8500.