American Federation of Government Employees, AFL-CIO, Local 2000 (Respondent) and Sallie J. Whitaker and G. Irene McDonald, Individuals and Sallie J. Whitaker, and Individual (Charging Parties)
[ v04 p601 ]
04:0601(81)CO
The decision of the Authority follows:
4 FLRA No. 81
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000
Respondent
and
SALLIE J. WHITAKER AND
G. IRENE McDONALD, INDIVIDUALS
and
SALLIE J. WHITAKER, AN INDIVIDUAL
Charging Parties
Case Nos. 6-CO-1
6-CO-2
6-CO-3
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD
ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7101-7135) AS ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT IT
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET
FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER. THE RESPONDENT FILED UNTIMELY EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER WHICH WERE NOT
CONSIDERED.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTIONS 2400.2 AND 2423.29 OF THE AUTHORITY'S
RULES AND REGULATIONS AND SECTIONS 7118 AND 7135(B) OF THE STATUTE, THE
AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE
AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE
RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
SUBJECT CASES, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS AS MODIFIED BELOW.
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED ORDER PROVIDES FOR THE
REINSTATEMENT OF CERTAIN ENUMERATED BENEFITS TO G. IRENE MCDONALD AND
THE ESTATE OF SALLIE J. WHITAKER TO THE EXTENT THAT THEY CAN BE MADE
RETROACTIVE. THE AUTHORITY FINDS THAT THE RECORD DOES NOT SUPPORT
WHETHER OR NOT G. IRENE MCDONALD AND THE ESTATE OF SALLIE J. WHITAKER
ARE ENTITLED TO THE BENEFITS ENUMERATED IN THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED ORDER. ACCORDINGLY, THE ORDER IS AMENDED IN THIS
RESPECT SO AS TO MAKE THE CHARGING PARTIES WHOLE FOR ANY LOSS OF
BENEFITS RESULTING FROM THE RESPONDENT'S UNLAWFUL CONDUCT, BUT LEAVING
THE DETAILS OF SUCH REMEDY TO THE COMPLIANCE PROCEDURES.
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7)(A) AND SECTION 7135 AND 5 C.F.R.
2423.29(B)(1), THE FEDERAL LABOR RELATIONS AUTHORITY ORDERS THAT THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000 SHALL:
1. CEASE AND DESIST FROM:
(A) DENYING MEMBERSHIP TO G. IRENE MCDONALD IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, FOR ANY REASON OTHER THAN HER
FAILURE TO MEET REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY REQUIRED FOR
ADMISSION, OR HER FAILURE TO TENDER DUES UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING AND RETAINING MEMBERSHIP.
(B) DENYING MEMBERSHIP TO G. IRENE MCDONALD, OR REQUIRING G. IRENE
MCDONALD TO REAPPLY FOR MEMBERSHIP BECAUSE OF DUES ARREARAGES WHILE NOT
RAISING SIMILAR KNOWN DEFICIENCIES ON THE PART OF CERTAIN OTHER OF
RESPONDENT'S MEMBERS.
(C) THREATENING G. IRENE MCDONALD WITH UNSPECIFIED CHARGES BECAUSE
SHE SOUGHT TO PAY DUES AND RETAIN MEMBERSHIP IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000.
(D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) RESTORE SALLIE J. WHITAKER TO FULL MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, THROUGH THE
DATE OF HER DEATH, AND, UPON REQUEST, RESTORE G. IRENE MCDONALD TO FULL
MEMBERSHIP IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2000, AND MAKE THEM WHOLE, CONSISTENT WITH APPLICABLE LAWS AND
REGULATIONS, FOR ANY LOSS OF BENEFITS THEY MAY HAVE SUFFERED BY REASON
OF ITS DENIAL OF MEMBERSHIP.
(B) POST AT THEIR RESPECTIVE BUSINESS OFFICES AND IN NORMAL MEETING
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY
POSTED, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY A REPRESENTATIVE OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000, AND SHALL BE POSTED FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE
TAKEN TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO EMPLOYERS FOR POSTING IN
CONSPICUOUS PLACES WHERE UNIT EMPLOYEES ARE LOCATED, WHERE THEY SHALL BE
MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO 5 C.F.R. 2423.30 NOTIFY THE 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., NOVEMBER 12, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL MEMBERS 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 THAT:
WE WILL NOT DENY MEMBERSHIP TO G. IRENE MCDONALD IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, FOR ANY REASON
OTHER THAN FAILURE TO MEET REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY
REQUIRED FOR ADMISSION, OR FAILURE TO TENDER DUES UNIFORMLY REQUIRED AS
A CONDITION OF ACQUIRING AND RETAINING MEMBERSHIP.
WE WILL NOT DENY MEMBERSHIP TO G. IRENE MCDONALD, OR REQUIRE HER TO
REAPPLY FOR MEMBERSHIP BECAUSE OF DUES ARREARAGES WHILE NOT RAISING
SIMILAR KNOWN DEFICIENCIES ON THE PART OF CERTAIN OTHER OF OUR MEMBERS.
WE WILL NOT THREATEN G. IRENE MCDONALD WITH UNSPECIFIED CHARGES
BECAUSE SHE SEEKS TO PAY DUES AND RETAIN MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000.
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 RESTORE SALLIE J. WHITAKER TO MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, THROUGH THE
DATE OF HER DEATH, AND, UPON REQUEST, RESTORE G. IRENE MCDONALD TO
MEMBERSHIP IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2000, AND MAKE THEM WHOLE, CONSISTENT WITH APPLICABLE LAWS AND
REGULATIONS, FOR ANY LOSS OF BENEFITS THEY MAY HAVE SUFFERED BY REASON
OF OUR DENIAL OF MEMBERSHIP.
(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 MEMBERS HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
BRYAN AND ERVAY STREETS, ROOM 450, DOWNTOWN POST OFFICE STATION, P.O.
BOX 2640, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS (214)
767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
STEVEN M. ANGEL, ESQUIRE
FOR THE GENERAL COUNSEL
CARL W. HOLT
FOR THE RESPONDENT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THESE CASES AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AND
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92 STAT. 1191, 5
U.S.C. 7101 ET SEQ. AS A RESULT OF A CONSOLIDATED UNFAIR LABOR PRACTICE
COMPLAINT DATED AUGUST 30, 1979 FILED BY THE REGIONAL DIRECTOR, SIXTH
REGION, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS AGAINST THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000
(RESPONDENT OR UNION).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTION
19(C) OF EXECUTIVE ORDER 11491, AS AMENDED, BY DENYING MEMBERSHIP TO
SALLIE WHITAKER (CHARGING PARTY) ON OR ABOUT NOVEMBER 13, 1978 FOR
ARBITRARY, INVIDIOUS, AND DISCRIMINATORY REASONS AND BY EJECTING SAID
EMPLOYEE FROM AN INTRA-UNION MEETING FOR SUCH REASONS. THE COMPLAINT
FURTHER ALLEGED THAT RESPONDENT VIOLATED 5 U.S.C. 7116(C) ON OR ABOUT
FEBRUARY 6, 1979 BY DENYING MEMBERSHIP TO SALLIE WHITAKER AND G. IRENE
MCDONALD (CHARGING PARTIES) FOR ARBITRARY, INVIDIOUS, AND DISCRIMINATORY
REASONS AND BECAUSE SAID EMPLOYEES REFUSED TO COMPLY WITH DISCRIMINATORY
REAPPLICATION PROCEDURES. THE COMPLAINT ALSO ALLEGED THAT RESPONDENT
VIOLATED 5 U.S.C. 7116(B)(1) BY LETTERS DATED FEBRUARY 6, 1979, FEBRUARY
27, 1979, AND MARCH 1, 1979 THREATENING UNSPECIFIED REPRISALS AND
CHARGES BECAUSE BARGAINING UNIT MEMBERS SOUGHT TO MAINTAIN MEMBERSHIP IN
RESPONDENT UNION.
RESPONDENT DENIED THE ALLEGATIONS.
A HEARING SCHEDULED FOR NOVEMBER 13, 1979 WAS POSTPONED ON
RESPONDENT'S REPRESENTATION THAT OPAL ADAMS, RESPONDENT'S PRESIDENT,
REPRESENTATIVE, AND KEY WITNESS, WOULD BE PHYSICALLY UNABLE TO
PARTICIPATE DUE TO ANTICIPATED ABDOMINAL SURGERY. MRS. ADAMS HAD
MEDICAL TESTS, BUT NO SURGERY. THE HEARING WAS SUBSEQUENTLY RESCHEDULED
FOR DECEMBER 18, 1979. RESPONDENT'S MOTION TO POSTPONE THE DECEMBER 18,
1979 HEARING ON THE GROUND THAT ITS NEWLY ASSIGNED REPRESENTATIVE, CARL
HOLT, WOULD BE ON LEAVE WAS DENIED. RESPONDENT FAILED TO APPEAR AT THE
DECEMBER 18, 1979 HEARING BY A DULY AUTHORIZED REPRESENTATIVE, BUT SENT
ONE OF THE VICE PRESIDENTS OF THE LOCAL WITH MEDICAL CERTIFICATES.
RESPONDENT REQUESTED A POSTPONEMENT ON THE GROUND THAT OPAL ADAMS WAS
PHYSICALLY UNABLE TO BE PRESENT. THE GENERAL COUNSEL PRESENTED EVIDENCE
WHICH INDICATED THAT ADAMS COULD HAVE APPEARED FOR THE HEARING. THE
GENERAL COUNSEL MOVED FOR DEFAULT JUDGMENT AND WAS PERMITTED TO PRESENT
ITS CASE IN CHIEF. ADDITIONAL EVIDENCE BEARING ON THE MOTION FOR
DEFAULT JUDGMENT WAS TAKEN ON FEBRUARY 5, 1980. RESPONDENT WAS ALSO
ALLOWED TO PRESENT ITS CASE AT THAT TIME. DECISION ON THE MOTION FOR
DEFAULT JUDGMENT WAS RESERVED.
DEFAULT JUDGMENT IS AVAILABLE TO THE GENERAL COUNSEL AND MAY BE
APPROPRIATE IN CERTAIN CIRCUMSTANCES. INDEED, THE OVERALL CIRCUMSTANCES
SURROUNDING THE ABILITY OF RESPONDENT'S PRESIDENT, OPAL ADAMS, TO APPEAR
AND PARTICIPATE IN THE DECEMBER 18, 1979 HEARING ARE HIGHLY SUSPICIOUS
IN VIEW OF HER ACTIONS BOTH BEFORE AND AFTER THE DECEMBER 18, 1979
HEARING. HOWEVER, THE MOTION FOR DEFAULT JUDGMENT IS DENIED, PRIMARILY
BECAUSE THE RECORD REFLECTS THAT ADAMS DID RECEIVE SOME MEDICAL AND
EMERGENCY DENTAL TREATMENT ON DECEMBER 18, 1979 AND, THUS, MAY HAVE BEEN
HANDICAPPED HAD SHE BEEN REQUIRED TO PROCEED ON THAT DATE. IT IS FELT
THAT THE SPECIAL PROCEDURES FOLLOWED AT THE DECEMBER 18, 1979 AND
FEBRUARY 5, 1980 HEARING BEST ACCOMMODATED THE INTERESTS OF BOTH PARTIES
IN THIS PARTICULAR INSTANCE.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, /1/ AND THE BRIEFS, /2/ I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS. A
SUBSTANTIAL PORTION OF THE GENERAL COUNSEL'S PROPOSED FINDINGS AND
CONCLUSIONS HAVE BEEN ADOPTED. ANY PROPOSED FINDING AND CONCLUSION
WHICH IS INCONSISTENT WITH THE FOLLOWING HAS BEEN CAREFULLY CONSIDERED
AND IS HEREBY DENIED.
FINDINGS OF FACT
IN LATE 1977, LOCAL 2545 WAS MERGED WITH LOCAL 2000. OPAL ADAMS WAS
ELECTED PRESIDENT OF THE MERGED UNION. THIS MERGER AND SUBSEQUENT
ELECTION OF OPAL ADAMS DREW CONSIDERABLE OPPOSITION FROM THE MEMBERSHIP
BECAUSE, INTER ALIA, AS A RESULT OF THE MERGER, ADAMS WAS PERMITTED TO
DRAW THE EQUIVALENT OF A GS-11 SALARY. BEFORE THE MERGER THE PRESIDENCY
HAD NOT BEEN A PAID FULL TIME POSITION. (TR. 39-42, 76).
ONE OF THE CHARGING PARTIES HEREIN, SALLIE WHITAKER, FILED A PROTEST
OVER ADAMS' ELECTION, FIRST WITH THE INTERNAL UNION ELECTION COMMITTEE
AND LATER WITH THE DEPARTMENT OF LABOR. (TR. 40-41). IN ADDITION, IN
MARCH 1978, MS. WHITAKER AND MS. IRENE MCDONALD, THE OTHER CHARGING
PARTY HEREIN, ALONG WITH 80 TO 90 OTHER EMPLOYEES, ENGAGED IN A TYPE OF
PROTEST BY REVOKING THEIR DUES DEDUCTION AUTHORIZATIONS. (TR. 41-42).
WHEN MS. ADAMS LEARNED THAT THE 80 TO 90 EMPLOYEES HAD REVOKED THEIR
DUES AUTHORIZATIONS, SHE ORDERED THAT THEIR MEMBERSHIPS IN THE UNION BE
DROPPED IMMEDIATELY. (TR. 67-68, 85-86).
THERE WAS, AND IS, NO REQUIREMENT WITHIN THE UNION THAT MEMBERS
EXECUTE DUES DEDUCTIONS IN ORDER TO RETAIN MEMBERSHIP. RATHER, THE
UNION PERMITS MEMBERS TO PAY DUES DIRECTLY TO THE SECRETARY-TREASURER.
(TR. 67, 86). DIRECT PAY MEMBERS ARE BILLED AT INTERVALS DURING THE
YEAR. (TR. 86, 293). THE UNION'S LOCAL OFFICER'S MANUAL AND
CONSTITUTION REQUIRES THAT DUES, INCLUDING INSURANCE PREMIUMS, MUST BE
PAID IN ADVANCE. THE CONSTITUTION STATES THAT, "MEMBERS MAY BE DROPPED
IF DUES ARE NOT PAID BY TUESDAY OF THE LAST FULL WORK WEEK OF THE
MONTH." (GENERAL COUNSEL'S EX. 3, P. 3; TR. 232).
SHORTLY AFTER REVOKING HER DUES DEDUCTION AUTHORIZATION, IRENE
MCDONALD ADVISED WILDER M. "SUE" MIXON, UNION SECRETARY-TREASURER, THAT
ALTHOUGH SHE HAD DISCONTINUED HER DUES DEDUCTION, SHE DID NOT INTEND TO
DROP UNION MEMBERSHIP, AND WOULD PAY UNION DUES DIRECTLY BY CHECK UPON
BEING ADVISED OF THE AMOUNT OWED. AS A RESULT, MIXON ARRANGED TO HAVE
THE MEMBERSHIP ROLLS SHOW MCDONALD AS "DROPPED IN ERROR." (TR. 42,
86-87). THEREAFTER, IRENE MCDONALD MADE DIRECT PAYMENTS OF DUES ON
APRIL 26, JUNE 10, AUGUST 25, NOVEMBER 10, DECEMBER 1, 1978, AND JANUARY
1, 1979. (GENERAL COUNSEL EX. 14). SHE RECEIVED A BILL IN AUGUST 1978
FOR AMOUNTS DUE THROUGH DECEMBER 1978 AND WAS ADVISED TO "SEND AS YOU
CAN." (GENERAL COUNSEL'S EX. 5). THE RECORD REFLECTS THAT MCDONALD DID
NOT ALWAYS PAY DUES IN ADVANCE, BUT SHE WAS IN ARREARS ONLY FOR LESS
THAN ONE MONTH.
WHEN MS. ADAMS WAS INFORMED THAT SALLIE WHITAKER HAD NOT PAID DUES,
ADAMS INSTRUCTED MIXON THAT IF WHITAKER WISHED TO BE A MEMBER, SHE WOULD
HAVE TO REAPPLY. (TR. 88). REAPPLICATION WOULD REQUIRE A VOTE BY THE
MEMBERSHIP. (GENERAL COUNSEL'S EX. 3, P. 2). HOWEVER, WHEN WHITAKER
SENT MIXON A CHECK FOR DUES AND ADVISED MIXON THAT SHE HAD NOT INTENDED
TO DROP MEMBERSHIP, MIXON ACCEPTED WHITAKER'S CHECK. MIXON DEPOSITED
THE CHECKS IN RESPONDENT'S ACCOUNT, AND ARRANGED FOR THE MEMBERSHIP
ROLLS TO SHOW THAT WHITAKER WAS ALSO "DROPPED IN ERROR." (TR. 88-89).
WHITAKER DID NOT RECEIVE A BILL FOR AMOUNTS DUE UNTIL EARLY NOVEMBER
1978. SHE MADE DIRECT DUES PAYMENTS ON JUNE 5, NOVEMBER 10, AND
DECEMBER 19, 1978. (GENERAL COUNSEL'S EX. 11, ATTACHMENT 1, AND 14).
THE RECORD REFLECTS THAT WHITAKER ALSO DID NOT ALWAYS PAY DUES IN
ADVANCE AND WAS IN ARREARS AT TIMES FOR UP TO TWO MONTHS.
ON NOVEMBER 13, 1978, A UNION MEETING WAS HELD IN ORDER TO NOMINATE
UNION OFFICERS. (TR. 49). UNION PRESIDENT ADAMS ARRANGED WITH GEORGIE
LUCAS, THE CHIEF STEWARD, FOR LUCAS TO CHALLENGE THE PRESENCE OF SALLIE
WHITAKER ON THE BASIS THAT WHITAKER WAS NOT A MEMBER IN GOOD STANDING.
(TR. 77-78). AS SOON AS THE MEETING WAS CALLED TO ORDER, LUCAS AROSE
AND CHALLENGED WHITAKER'S RIGHT TO BE PRESENT AT THE MEETING. (TR.
49-50, 94). THEREAFTER, DESPITE THE STATEMENT BY THE
SECRETARY-TREASURER, MIXON, THAT WHITAKER WAS A MEMBER IN GOOD STANDING,
WHITAKER WAS EJECTED FROM THE MEETING. (TR. 50, 78, 93-94). WHEN IRENE
MCDONALD PROTESTED THE ACTION TAKEN AGAINST WHITAKER, SHE WAS EJECTED AS
WELL (TR. 50, 93-94).
WHITAKER SUBSEQUENTLY FILED PROTESTS WITH THE INTERNAL UNION OFFICERS
PROTESTING THE EJECTION FROM THE MEETING. (GENERAL COUNSEL'S EXHIBITS
6, 11(B) ATTACHMENT 8). ADAMS RESPONDED BY LETTER DATED DECEMBER 1,
1978, STATING THAT WHITAKER HAD BEEN REMOVED FROM THE MEETING BECAUSE
SHE HAD BEEN DROPPED FROM MEMBERSHIP, AND MCDONALD HAD BEEN REMOVED
BECAUSE SHE BECAME UNRULY. (GENERAL COUNSEL'S EXHIBIT 7).
MS. WHITAKER AND MS. MCDONALD REINSTITUTED THEIR DUES DEDUCTION
AUTHORIZATIONS IN DECEMBER 1978. (TR. 88). SUBSEQUENTLY, BY LETTER
DATED FEBRUARY 6, 1979, ADAMS SENT LETTERS TO MCDONALD AND WHITAKER
NOTIFYING THEM THAT THEY WERE NOT MEMBERS OF THE UNION. THE LETTER
STATED THAT WHITAKER HAD NOT BEEN A MEMBER IN GOOD STANDING SINCE MARCH
12, 1978 AND MCDONALD HAD NOT BEEN A MEMBER IN GOOD STANDING SINCE JULY
14, 1978. THE LETTER NOTED THAT WHITAKER AND MCDONALD HAD REEXECUTED
DUES DEDUCTIONS AND CHARACTERIZED THIS AS AN "ILLEGAL MEANS OF CAUSING
LOCALLY UNAPPROVED MONIES TO BE PLACED IN THE LOCAL UNION TREASURY." THE
LETTER STATED THAT IF THEY WANTED TO BE MEMBERS IN GOOD STANDING, THEY
WOULD HAVE TO REAPPLY AND BE VOTED IN BY THE FULL MEMBERSHIP. ADAMS
ALSO STATED, IN PART:
IF EITHER OR BOTH OF YOU PERSIST IN YOUR COMPLAINTS AND PROTESTS
AGAINST THE LOCAL UNION,
APPROPRIATE CHARGES WILL BE BROUGHT AGAINST YOU, YOUR SUPERVISORS,
AND THE AGENCY FOR ALLOWING
THE TWO OF YOU TO VIOLATE THE AGREEMENT, THE PRESIDENTIAL EXECUTIVE
ORDER 11491, AS AMENDED,
AND THE CIVIL SERVICE REFORM ACT OF 1978.
* * * *
I AM HEREWITH FORWARDING COPIES OF THIS LETTER TO AFGE 10TH DISTRICT
NVP GLEN PETERSON AND
AFGE NATIONAL PRESIDENT KENNETH BLAYLOCK WHOM YOU HAVE BROUGHT INTO
YOUR SPURIOUS AND
UNMERITED COMPLAINTS AND PROTESTS AGAINST THE LOCAL UNION. AFGE
LOCAL 2000 WILL NO LONGER
TOLERATE YOUR INTERFERENCE IN INTERNAL UNION AFFAIRS OF THE LOCAL.
* * * *
YOU ARE FURTHER INSTRUCTED TO CORRECTLY APPLY FOR MEMBERSHIP IF
THAT IS STILL YOUR DESIRE. AT THAT TIME, THE LOCAL MEMBERS WILL
DECIDE WHETHER YOU MEET
MEMBERSHIP REQUIREMENTS AND IF CHARGES SHOULD BE BROUGHT AGAINST YOU
FOR SAID ILLEGAL
TRANSACTIONS. (GENERAL COUNSEL'S EXH. 8).
BY LETTERS DATED FEBRUARY 1, 1979, AND MARCH 1, 1979, ADAMS NOTIFIED
BARKSDALE AIR FORCE BASE THAT WHITAKER AND MCDONALD, RESPECTIVELY, WERE
NOT MEMBERS AND SHOULD NOT BE ON DUES DEDUCTION. (GENERAL COUNSEL'S
EXH. 9, 11(B) ATTACHMENT 3). BY LETTER DATED FEBRUARY 27, 1979, ADAMS
RETURNED TO WHITAKER MONIES WHICH HAD BEEN DEDUCTED SINCE DECEMBER 1978.
IN THE COVER LETTER, ADAMS AGAIN MADE REFERENCE TO A REAPPLICATION
PROCEDURE IN ORDER FOR WHITAKER TO BECOME A MEMBER IN GOOD STANDING. IN
ADDITION, SHE STATED:
OTHERWISE, IF YOU CONTINUE YOUR ATTEMPTS AT ILLEGAL MONETARY
TRANSACTIONS IN YOUR EFFORTS
TO SECURE MEMBERSHIP BY PLACING UNAPPROVED MONIES IN THE LOCAL 2000
TREASURY, I SHALL BE
FORCED TO PLACE THIS MATTER IN THE HANDS OF APPROPRIATE FEDERAL
AUTHORITIES. MS. WHITAKER,
YOU ARE NO EXCEPTION TO THE LAWS OF THE LAND AND YOU MUST ABIDE BY
THE LAWS AS IS REQUIRED
EVERY CITIZEN OF THE UNITED STATES OF AMERICA. FURTHER, IF YOU
CONTINUE YOUR HARASSMENT OF
AFGE LOCAL 2000 ELECTED OFFICIALS (REMEMBER THAT YOU ARE NOT A MEMBER
IN GOOD STANDING), I
SHALL FILE CHARGES AGAINST YOU WITH THE AF AGENCY TO ORDER YOU TO
CEASE AND DESIST YOUR
CONTINUED DEFAMATION OF LOCAL UNION OFFICIALS. (GENERAL COUNSEL'S
EX. 11(B), ATTACHMENT 7).
MCDONALD WAS SENT A SIMILAR LETTER ON MARCH 1, 1979 WHICH INCLUDED
THE FOLLOWING LANGUAGE:
AFTER THAT, IF YOU ATTEMPT TO REINSTATE DUES DEDUCTIONS ON YOUR PART
WITHOUT BENEFIT OF
APPROVED MEMBERSHIP, APPROPRIATE ACTION WILL BE TAKEN WITH REGARD TO
THIS MATTER.
MS. MCDONALD, IT IS BEYOND MY COMPREHENSION WHY YOU PERSIST IN YOUR
ATTEMPTS TO ENTER THE
LOCAL WITHOUT BENEFIT OF FOLLOWING REQUIREMENTS FOR MEMBERSHIP, AND
THE LOCAL MEMBERSHIP IS
ALSO INTERESTED IN KNOWING WHY. SHOULD YOU DECIDE TO REAPPLY THE
MEMBERSHIP WILL ASK FOR
JUSTIFICATION OF YOUR ACTIONS. (GENERAL COUNSEL'S EX. 10).
THE RECORD IS REPLETE WITH TESTIMONY THAT NO REAPPLICATION PROCEDURE
WAS NECESSARY FOR MEMBERS WITH DUES IN ARREARS. (TR. 43, 53, 66-67, 74,
92). THE SECRETARY-TREASURER COLLECTED PAST DUES, DEPOSITED THEM, AND
NOTHING WAS SAID ABOUT ANY EFFECT ON MEMBERSHIP. (TR. 43). RESPONDENT
WAS UNABLE TO PRESENT A SINGLE INSTANCE WHERE SUCH MEMBERS WERE REQUIRED
TO REAPPLY. (TR. 285; 292-293). RATHER, THE EXAMPLES RAISED OF
REAPPLICATION WERE OF INDIVIDUALS FROM OTHER UNIONS AND INDIVIDUALS WHO
HAD BEEN SEPARATED FROM EMPLOYMENT. (TR. 169-171).
DESPITE PROVISIONS IN RESPONDENT'S LOCAL OFFICER'S MANUAL AND
CONSTITUTION REQUIRING THAT DUES, INCLUDING INSURANCE PREMIUMS, MUST BE
PAID IN ADVANCE AND, "MEMBERS MAY BE DROPPED IF DUES ARE NOT PAID BY
TUESDAY OF THE LAST FULL WORK WEEK OF THE MONTH," (GENERAL COUNSEL'S EX.
3, P. 3; TR. 232), THE RECORD IS CLEAR THAT IN THE CASE OF DIRECT DUES
PAYING MEMBERS, ARREARAGES WERE ALLOWED. THE UNION TREASURER, SUE
MIXON, TESTIFIED THAT DIRECT DUES PAYING MEMBERS WERE PERIODICALLY
BILLED. (TR. 86; GENERAL COUNSEL'S EX. 5). THESE BILLS AND PAYMENTS
SOMETIMES INCLUDED PAST DUE AMOUNTS. (GENERAL COUNSEL'S EX. 5, 14; TR.
92, 166). MIKE KENNINGTON, FORMER UNION VICE PRESIDENT AND STEWARD,
TESTIFIED THAT THE ISSUE OF PAST ARREARAGES ONLY AROSE AT ELECTION TIME
AS A VEHICLE FOR ADAMS TO CONSOLIDATE HER SUPPORT. (TR. 64-65).
INDIVIDUALS SUPPORTIVE OF MS. ADAMS WERE REMINDED TO PAY DUES SO THAT
THEY COULD VOTE IN THE ELECTION; OTHER INDIVIDUALS WERE NOT REMINDED.
(TR. 64-66). OF PARTICULAR NOTE IN THIS REGARD IS LOUIS F. HERZBERG.
THE MINUTES OF THE UNION MEETING OF NOVEMBER 13, 1978, INDICATE THAT
HERZBERG WAS NOMINATED AS 5TH VICE PRESIDENT OF THE OVERALL BARKSDALE
UNIT AND VICE PRESIDENT OF THE BARKSDALE PROFESSIONAL UNIT. (GENERAL
COUNSEL'S EX. 13). THE UNION'S LEDGER ENTRY FOR DECEMBER 20, 1978
REFLECTS THAT ON THE DAY OF THE MEETING HERZBERG PAID $31.50 IN DUES AND
AN ADDITIONAL $27.75 ON NOVEMBER 14, 1978 (GENERAL COUNSEL'S EX. 14).
DUES WERE $6.50 PER MONTH PRIOR TO JUNE 1, 1978, AND $4.50 PER PAY
PERIOD THEREAFTER, OR $9.75 PER MONTH. (GENERAL COUNSEL'S EX. 5; TR.
247). THE EARLIEST PRIOR PAYMENT RECORDED FOR HERZBERG WAS A $27.00
DUES PAYMENT ON MAY 8, 1978. THUS, IT APPEARS THAT EVEN IF HERZBERG
PAID DUES IN ADVANCE, HE WAS IN ARREARS AS OF THE NOVEMBER 13, 1978
MEETING. (GENERAL COUNSEL'S EX. 14). THE RECORD ALSO REFLECTS THAT
OPAL ADAMS WAS ALSO IN ARREARS AT THE TIME OF THE NOVEMBER 13, 1978
MEETING. (TR. 94-95, 306-307; GENERAL COUNSEL'S EX. 14). IN THIS
REGARD, ADAMS' FAILURE TO SUBMIT CHECKS ALLEGEDLY SHOWING PAYMENT AS
PROMISED AT HEARING, MUST BE TAKEN AS AN ADMISSION OF CULPABILITY. (SEE
FN. 1). FINALLY, RESPONDENT'S OWN WITNESS, SAM GATLIN, TESTIFIED THAT
MEMBERS ARE CARRIED IN ARREARS FOR THREE MONTHS BEFORE THEY ARE DROPPED.
(TR. 213).
SALLIE J. WHITAKER DIED IN FEBRUARY 1980. (GENERAL COUNSEL'S BRIEF,
P. 11 FN. 4; RESPONDENT'S BRIEF AND SERVICE SHEET DATED MARCH 12,
1980).
DISCUSSION AND CONCLUSIONS
IN MAKING THE FOREGOING FINDINGS, I GAVE GREATER WEIGHT TO THE
TESTIMONY OF THE GENERAL COUNSEL'S WITNESSES, WHO INCLUDED SEVERAL KEY
OFFICERS OF THE RESPONDENT DURING THE PERTINENT PERIOD, THAN TO THE
WITNESSES OF RESPONDENT. I FOUND THE TESTIMONY OF RESPONDENT'S
PRESIDENT OPAL ADAMS TO CONTAIN A LARGE NUMBER OF INCONSISTENCIES AND
CONTRADICTIONS. THE TESTIMONY OF RESPONDENT'S WITNESSES, ROBERT G.
YAGEL, SAMUEL GATLIN, AND MILTON WEEKS CONCERNING STATEMENTS MADE AT THE
NOVEMBER 13, 1978 MEETING, WAS CONTRADICTED BOTH BY THE MINUTES OF THE
MEETING AND BY SEVERAL WITNESSES OF THE GENERAL COUNSEL WHO PLAYED MORE
ACTIVE ROLES IN THE MEETING.
SECTION 19(C) OF EXECUTIVE ORDER 11491, AS AMENDED, AND SECTION
7116(C) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5
U.S.C. 7116(C), /3/ CONTAIN SIMILAR LANGUAGE MAKING IT AN UNFAIR LABOR
PRACTICE FOR AN EXCLUSIVE REPRESENTATIVE TO DENY MEMBERSHIP TO ANY
EMPLOYEE IN THE APPROPRIATE UNIT EXCEPT FOR FAILURE (1) TO MEET
REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY REQUIRED FOR ADMISSION, OR
(2) TO TENDER DUES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND
RETAINING MEMBERSHIP.
RESPONDENT CONTENDS IN ESSENCE THAT MS. WHITAKER AND MS. MCDONALD
VOLUNTARILY CEASED THEIR MEMBERSHIP IN MARCH 1978, BUT THAT EVEN IF THEY
DID NOT VOLUNTARILY DROP MEMBERSHIP, THEY THEREAFTER FAILED TO PAY
MONTHLY DUES IN ADVANCE AS UNIFORMLY REQUIRED FOR RETAINING MEMBERSHIP,
AND WERE DROPPED FROM MEMBERSHIP FOR THIS REASON. RESPONDENT ALSO
CONTENDS THAT IF SOME MISTAKE WAS MADE IN COLLECTING DUES AND KEEPING
THEM ON THE MEMBERSHIP ROLLS WITHOUT A REAPPLICATION, IT WAS THE FAULT
OF THE THEN SECRETARY-TREASURER, MS. MIXON, WITH WHOM THEY ALLEGEDLY
CONSPIRED IN AN EFFORT TO RETAIN MEMBERSHIP.
AS NOTED, I DO NOT CREDIT THE TESTIMONY OF MS. ADAMS THAT MS.
WHITAKER AND MS. MCDONALD EXPRESSLY ADVISED MS. ADAMS IN MARCH 1978 THAT
THEY WERE DROPPING MEMBERSHIP. THE RECORD IS ALSO CLEAR THAT PROVISIONS
IN THE UNION'S CONSTITUTION AND OFFICER'S MANUAL PROVIDING FOR ADVANCE
PAYMENT OF DUES WAS NOT UNIFORMLY ENFORCED AS A CONDITION OF RETAINING
MEMBERSHIP. RESPONDENT'S BLAME ANY LACK OF ENFORCEMENT ON THE THEN
SECRETARY-TREASURER. HOWEVER, IT IS CLEAR THAT, TO THE EXTENT THE
SECRETARY-TREASURER ACCEPTED LATE PAYMENT OF DUES FROM MS. WHITAKER AND
MS. MCDONALD, SHE WAS ACTING IN A MANNER FULLY CONSISTENT WITH THE PAST
PRACTICE OF THE UNION.
THEREFORE, IT IS CONCLUDED, AS URGED BY THE GENERAL COUNSEL, THAT
RESPONDENT VIOLATED SECTION 19(C) OF EXECUTIVE ORDER 11491, AS AMENDED,
ON NOVEMBER 13, 1978 BY EJECTING SALLIE WHITAKER FROM A UNION MEETING ON
THAT DATE. SUCH ACTION EFFECTIVELY DENIED HER MEMBERSHIP IN THAT SHE
WAS DEPRIVED OF THE BENEFITS OF MEMBERSHIP, INCLUDING ATTENDANCE AND
PARTICIPATION IN THE MEETING AND POSSIBLE NOMINATION AND ELECTION TO
UNION OFFICE. THERE IS NO EVIDENCE THAT WHITAKER'S EJECTION FROM THE
MEETING WAS FOR DISCIPLINARY REASONS PERMISSIBLE UNDER THE ORDER.
WHITAKER HAD NOT BEEN CHARGED WITH ANY ALLEGED MISCONDUCT, AND THERE IS
NO EVIDENCE THAT THE EJECTION FROM THE MEETING WAS A DISCIPLINE IN
ACCORDANCE WITH PROCEDURES UNDER THE RESPONDENT'S CONSTITUTION OR
BYLAWS. CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1650,
BEEVILLE, TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
WASHINGTON, D.C., A/SLMR NO. 294, 3 A/SLMR 416(1973), 2 FLRC 233(1974).
SIMILARLY, RESPONDENT'S FEBRUARY 6, 1979 LETTER TO WHITAKER AND
MCDONALD ALSO VIOLATED 5 U.S.C. 7116(C). IN THIS LETTER, RESPONDENT
DENIED MEMBERSHIP TO BOTH WHITAKER AND MCDONALD BY ERRONEOUSLY STATING
THAT THEY HAD NOT BEEN MEMBERS IN GOOD STANDING SINCE MARCH 1978 AND
JULY 1978, RESPECTIVELY. THE LETTER ALSO STATED THAT IF THEY WANTED TO
BECOME MEMBERS THEY WOULD HAVE TO REAPPLY AND BE VOTED ON BY THE
MEMBERSHIP. THE RECORD DEMONSTRATES THAT NO SUCH REAPPLICATION
PROCEDURE WAS UNIFORMLY REQUIRED OF DIRECT DUES PAYING MEMBERS WITH DUES
IN ARREARS. THE RECORD REFLECTS THAT THIS BARRIER TO MEMBERSHIP, AS
WELL AS THE ALLEGED DUES DELINQUENCY, WAS ERECTED ONLY BECAUSE OF THE
OPPOSITION OF WHITAKER AND MCDONALD TO ADAMS.
THE FEBRUARY 6, 1979 LETTER FURTHER STATES THAT IN CONSIDERING SUCH
REAPPLICATION, "THE LOCAL MEMBERS WILL DECIDE WHETHER YOU MEET
MEMBERSHIP REQUIREMENTS AND IF CHARGES SHOULD BE BROUGHT AGAINST YOU FOR
SAID ILLEGAL TRANSACTIONS (RE-EXECUTING DUES DEDUCTIONS)." EVEN ASSUMING
THE VALIDITY OF THE REAPPLICATION PROCEDURE, THIS DUAL REQUIREMENT
VIOLATES SECTION 7116(C). THE CONSIDERATION OF DISCIPLINE WOULD NOT BE
A PROPER PART OF THE MEMBERSHIP APPLICATION OR GROUNDS FOR DENIAL OF
MEMBERSHIP. /4/
THE GENERAL COUNSEL ALSO CONTENDS THAT RESPONDENT VIOLATED 5 U.S.C.
7116(B)(1) BY THREATENING EMPLOYEES BECAUSE THEY SOUGHT TO MAINTAIN
MEMBERSHIP IN THE UNION.
THE RECORD REFLECTS THAT RESPONDENTS' FEBRUARY 6, 1979 LETTER TO BOTH
WHITAKER AND MCDONALD STATES THAT BOTH INDIVIDUALS WOULD BE HELD "FULLY
RESPONSIBLE" IF THEY CONTINUED TO ATTEMPT TO PAY DUES. THE LETTER ALSO
STATES THAT IF THE INDIVIDUALS SHOULD REAPPLY FOR MEMBERSHIP, THE LOCAL
MEMBERS WILL DECIDE "IF CHARGES SHOULD BE BROUGHT AGAINST YOU FOR SAID
ILLEGAL TRANSACTIONS." RESPONDENT'S LETTER TO SALLIE WHITAKER DATED
FEBRUARY 27, 1979 STATES THAT IF WHITAKER CONTINUES TO ATTEMPT TO PAY
HER DUES, THE MATTER WOULD BE PLACED BEFORE APPROPRIATE FEDERAL
AUTHORITIES. A SIMILAR LETTER TO IRENE MCDONALD DATED MARCH 1, 1979
STATED THAT IF SHE ATTEMPTED TO REINSTATE DUES DEDUCTIONS "APPROPRIATE
ACTION WILL BE TAKEN."
SECTION 7116(B)(1) MAKES IT AN UNFAIR LABOR PRACTICE FOR A LABOR
ORGANIZATION TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THE STATUTE. SECTION 7102
INCLUDES THE RIGHT OF EACH EMPLOYEE TO JOIN OR ASSIST ANY LABOR
ORGANIZATION FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. IT IS
CONCLUDED THAT RESPONDENT'S LETTERS OF FEBRUARY 6, FEBRUARY 27, AND
MARCH 1, 1979, BY THREATENING WHITAKER AND/OR MCDONALD WITH UNSPECIFIED
CHARGES IF THEY ATTEMPTED TO PAY DUES AND RETAIN MEMBERSHIP OR REAPPLY
FOR MEMBERSHIP, DID, UNDER THE CIRCUMSTANCES, VIOLATE SECTION 7116(B)(1)
BY INTERFERING WITH THEIR RIGHT TO JOIN AND ASSIST A LABOR ORGANIZATION.
HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED SECTION 19(C)
OF EXECUTIVE ORDER 11491, AS AMENDED, AND 5 U.S.C. 7116(B)(1) AND
7116(C), I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER, WHICH
TAKES INTO CONSIDERATION THE FACT THAT WHITAKER IS NOW DECEASED:
ORDER
PURSUANT TO 5 U.S.C. SECTION 7118(A)(7)(A) AND SECTION 3135 AND 5
C.F.R. SECTION 2423.29(B)(1), THE AUTHORITY HEREBY ORDERS THAT THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 2000 SHALL:
1. CEASE AND DESIST FROM:
(A) DENYING MEMBERSHIP TO G. IRENE MCDONALD IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, FOR ANY REASON OTHER THAN HER
FAILURE TO MEET REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY REQUIRED FOR
ADMISSION, OR HER FAILURE TO TENDER DUES UNIFORMLY REQUIRED AS A
CONDITION OF ACQUIRING AND RETAINING MEMBERSHIP.
(B) DENYING MEMBERSHIP TO G. IRENE MCDONALD, OR REQUIRING G. IRENE
MCDONALD TO REAPPLY FOR MEMBERSHIP BECAUSE OF DUES ARREARAGES WHILE NOT
RAISING SIMILAR KNOWN DEFICIENCIES ON THE PART OF CERTAIN OTHER OF
RESPONDENT'S MEMBERS.
(C) THREATENING G. IRENE MCDONALD WITH UNSPECIFIED CHARGES BECAUSE
SHE SOUGHT TO PAY DUES AND RETAIN MEMBERSHIP IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000.
(D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED, AND THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) RESTORE SALLIE J. WHITAKER TO FULL MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, THROUGH THE
DATE OF HER DEATH, AND, UPON REQUEST, RESTORE G. IRENE MCDONALD TO FULL
MEMBERSHIP IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2000. RESTORATIONS TO MEMBERSHIP SHALL BE WITHOUT THE PAYMENT OF
BACK DUES, EXCEPT FOR THE PORTION OF THE DUES REGULARLY ALLOCABLE TO THE
COST OF INSURANCE PREMIUMS, CONTRIBUTIONS, AND OTHER HEALTH AND WELFARE
BENEFITS, ACCRUING TO MEMBERS TO THE EXTENT THEY CAN BE REINSTATED
RETROACTIVELY. TO THE EXTENT THAT BENEFITS CANNOT BE MADE EFFECTIVE
RETROACTIVELY, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2000, SHALL REIMBURSE G. IRENE MCDONALD AND THE ESTATE OF SALLIE
J. WHITAKER FOR ANY EXPENSES OR LOSSES SUFFERED BECAUSE OF THE ABSENCE
OF SUCH BENEFITS, WITH INTEREST THEREON AT 6 PERCENT PER ANNUM, LESS THE
PORTION OF DUES WHICH WOULD HAVE BEEN ALLOCABLE TO THE PAYMENT OF
PREMIUMS FOR, OR OTHER PURCHASE OF, SUCH BENEFITS. /5/
(B) POST AT THEIR RESPECTIVE BUSINESS OFFICES AND IN NORMAL MEETING
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY
POSTED, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY A REPRESENTATIVE OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000, AND SHALL BE POSTED FOR 60 CONSECUTIVE
DAYS, THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS ARE CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE
TAKEN TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO EMPLOYERS FOR POSTING IN
CONSPICUOUS PLACES WHERE UNIT EMPLOYEES ARE LOCATED, WHERE THEY SHALL BE
MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE 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
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 29, 1980
WASHINGTON, D.C.
APPENDIX
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 EMPLOYEES THAT:
WE WILL NOT DENY MEMBERSHIP TO G. IRENE MCDONALD IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, FOR ANY REASON
OTHER THAN FAILURE TO MEET REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY
REQUIRED FOR ADMISSION, OR FAILURE TO TENDER DUES UNIFORMLY REQUIRED AS
A CONDITION OF ACQUIRING AND RETAINING MEMBERSHIP.
WE WILL NOT DENY MEMBERSHIP TO G. IRENE MCDONALD OR REQUIRE HER TO
REAPPLY FOR MEMBERSHIP, BECAUSE OF DUES ARREARAGES WHILE NOT RAISING
SIMILAR KNOWN DEFICIENCIES ON THE PART OF CERTAIN OTHER OF OUR MEMBERS.
WE WILL NOT THREATEN G. IRENE MCDONALD WITH UNSPECIFIED CHARGES
BECAUSE SHE SEEKS TO PAY DUES AND RETAIN MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000.
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 RESTATE SALLIE J. WHITAKER TO MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, THROUGH THE
DATE OF HER DEATH, AND, UPON REQUEST, WE WILL RESTORE G. IRENE MCDONALD
TO MEMBERSHIP IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2000. RESTORATIONS TO MEMBERSHIP SHALL BE WITHOUT THE PAYMENT OF
BACK DUES, EXCEPT FOR THE PORTION OF THE DUES REGULARLY ALLOCABLE TO THE
COST OF INSURANCE PREMIUMS, CONTRIBUTIONS, AND OTHER HEALTH AND WELFARE
BENEFITS ACCRUING TO MEMBERS TO THE EXTENT THEY CAN BE REINSTATED
RETROACTIVELY. TO THE EXTENT THAT BENEFITS CANNOT BE MADE EFFECTIVE
RETROACTIVELY, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2000, WILL REIMBURSE G. IRENE MCDONALD AND THE ESTATE OF SALLIE J.
WHITAKER FOR ANY EXPENSES OR LOSSES SUFFERED BECAUSE OF THE ABSENCE OF
SUCH BENEFITS, WITH INTEREST THEREON AT 6 PERCENT PER ANNUM, LESS THE
PORTION OF DUES WHICH WOULD HAVE BEEN ALLOCABLE TO THE PAYMENT OF
PREMIUMS FOR, OR OTHER PURCHASE OF, SUCH BENEFITS.
. . .
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000
DATED: . . . BY: . . .
(SIGNATURE AND 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 OF COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS
BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450, DALLAS, TEXAS
75221.
--------------- FOOTNOTES$ ---------------
/1/ THE RECORD WAS LEFT OPEN FOR 10 DAYS IN ORDER TO RECEIVE
DOCUMENTS IDENTIFIED AS RESPONDENTS EXHIBIT 2, A LISTING OF CERTAIN
MEMBERS, AND RESPONDENT'S EXHIBIT 3, MRS. ADAMS' CANCELLED CHECKS FOR
DUES PAYMENTS. (TR. 2790282, 298, 307, 319). THESE EXHIBITS WERE NOT
SUBMITTED IN ACCORDANCE WITH THE RULING, AND, ACCORDINGLY, ARE NOT PART
OF THE RECORD.
/2/ FOURTEEN DOCUMENTS WERE ATTACHED TO RESPONDENT'S BRIEF. EXCEPT
FOR ATTACHMENT 13, WHICH IS IDENTICAL TO RESPONDENT'S EXHIBIT 1, AND
ATTACHMENT 14, WHICH IS IDENTICAL TO GENERAL COUNSEL'S EXHIBIT 2, THESE
DOCUMENTS HAVE NOT BEEN CONSIDERED. THEY WERE NOT OFFERED AT THE
HEARING AND ARE OUTSIDE THE SCOPE OF THE AGREEMENT CONCERNING
POST-HEARING SUBMISSIONS SET FORTH IN FOOTNOTE 1. VARIOUS OTHER
MATTERS, SOME OF THEM REFLECTING ADVERSELY ON THE GENERAL COUNSEL'S
WITNESSES, RAISED FOR THE FIRST TIME IN RESPONDENT'S BRIEF, HAVE ALSO
NOT BEEN CONSIDERED.
/3/ SECTION 5 U.S.C. 7116(C) PROVIDES:
(C) FOR THE PURPOSE OF THIS CHAPTER IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN EXCLUSIVE
REPRESENTATIVE TO DENY MEMBERSHIP TO ANY EMPLOYEE IN THE APPROPRIATE
UNIT REPRESENTED BY SUCH
EXCLUSIVE REPRESENTATIVE EXCEPT FOR FAILURE--
(1) TO MEET REASONABLE OCCUPATIONAL STANDARDS UNIFORMLY REQUIRED FOR
ADMISSION, OR
(2) TO TENDER DUES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND
RETAINING MEMBERSHIP.
THIS SUBSECTION DOES NOT PRECLUDE ANY LABOR ORGANIZATION FROM
ENFORCING DISCIPLINE IN
ACCORDANCE WITH PROCEDURES UNDER ITS CONSTITUTION OR BYLAWS TO THE
EXTENT CONSISTENT WITH THE
PROVISIONS OF THIS CHAPTER.
/4/ ONCE REINSTATED, THE MEMBER COULD BE SUBJECT TO DISCIPLINE,
ENFORCED IN ACCORDANCE WITH THE PROCEDURES UNDER THE CONSTITUTION AND
BYLAWS OF THE RESPONDENT WHICH CONFORM TO THE STATUTE, WITH RESPECT TO
ANY IMPROPER CONDUCT ENGAGED IN DURING THE PERIOD OF PRIOR MEMBERSHIP.
CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1650, BEEVILLE,
TEXAS AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, WASHINGTON, D.C.,
A/SLMR NO. 294, 3 A/SLMR 416, FLRC NO. 73A-43, 2 FLRC 233(1974).
/5/ CF. SHEET METAL WORKERS, LOCAL 418, 227 NLRB NO. 230, 94 LRRM
1155(1977).