[ v08 p718 ]
08:0718(125)CO
The decision of the Authority follows:
8 FLRA No. 125
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2000, AFL-CIO
Respondent
and
WILDER M. MIXON, AN INDIVIDUAL
Charging Party
Case No. 6-CO-17
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING THAT THE COMPLAINT BE
DISMISSED. THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE
JUDGE'S DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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 ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE,
THE AUTHORITY HEREBY ADOPTS THE JUDGE'S CONCLUSIONS HEREIN.
IN AGREEMENT WITH THE JUDGE'S CONCLUSIONS, THE AUTHORITY FINDS THAT
THE ALLEGATION IN THE COMPLAINT MAY NOT BE LITIGATED UNDER SECTION 7116
OF THE STATUTE. IN THIS REGARD, THE MATTERS AT ISSUE INVOLVE
ALLEGATIONS THAT CERTAIN OF THE RESPONDENT'S CONDUCT WAS INCONSISTENT
WITH AND VIOLATIVE OF ITS CONSTITUTION AND BYLAWS, AND THUS ARE MATTERS
WITHIN THE EXCLUSIVE JURISDICTION OF THE ASSISTANT SECRETARY OF LABOR
PURSUANT TO THE PROVISIONS OF SECTION 7120 OF THE STATUTE. /1/
ACCORDINGLY, THE COMPLAINT HEREIN SHALL BE DISMISSED. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CO-17 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 20, 1982
RONALD W. HAUGHTON CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SEE DEFENSE LOGISTICS AGENCY, 5 FLRA NO. 21(1981).
/2/ CF. NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 53, 6 FLRA NO. 37(1981), IN WHICH THE AUTHORITY
FOUND A VIOLATION OF SECTION 7116(B)(1) OF THE STATUTE, AND ORDERED A
UNION STEWARD REINSTATED TO HIS UNION POSITION, IN CIRCUMSTANCES WHERE
IT WAS DETERMINED THAT HE WOULD NOT HAVE BEEN REMOVED EXCEPT FOR HIS
HAVING GIVEN TESTIMONY AT AN AUTHORITY PROCEEDING.
-------------------- ALJ$ DECISION FOLLOWS --------------------
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000
RESPONDENT
AND
WILDER M. MIXON, AN INDIVIDUAL
CHARGING PARTY
CASE NO. 6-CO-17
STEVEN M. ANGEL, ESQUIRE
FOR THE GENERAL COUNSEL
MR. CARL W. HOLT
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. CHAPTER 71, /1/ AND THE FINAL RULES AND
REGULATIONS ISSUED THEREUNDER, FED. REG., VOL- 45, NO. 12, JANUARY 29,
1980, 5 C.F.R. 2415.1, ET. SEQ. THE CHARGE HEREIN, FILED ON FEBRUARY
21, 1980 (G.C. EXH. 1(A)), NAMED AS THE LABOR ORGANIZATION AGAINST WHICH
THE CHARGE WAS MADE, "AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2000, AFL-CIO;" THE BASIS OF THE CHARGE STATED, INTER ALIA, IN EFFECT,
THAT THE NAMED LABOR ORGANIZATION, I.E., AFGE LOCAL 2000, BY THE ACTS
AND CONDUCT OF ITS AGENTS INTERFERRED WITH, RESTRAINED EMPLOYEES IN THE
EXERCISE OF RIGHTS GUARANTEED BY THE STATUTE AND DENIED MEMBERSHIP TO
WILDER M. MIXON FOR REASONS OTHER THAN THE FAILURE TO MEET REASONABLE
OCCUPATIONAL STANDARDS OR THE FAILURE TO TENDER DUES OR THE ENFORCEMENT
OF DISCIPLINE OTHER THAN IN ACCORDANCE WITH PROCEDURES CONSISTENT WITH
THE STATUTE. HOWEVER, IN PARAGRAPH 5, BARKSDALE AIR FORCE BASE WAS
NAMED AS THE ACTIVITY INVOLVED. /2/
THE COMPLAINT AND NOTICE OF HEARING ISSUED ON MARCH 28, 1980.
PARAGRAPH 3 OF THE COMPLAINT STATED THAT RESPONDENT, AFGE LOCAL 2000,
HAS BEEN, AND IS NOW, THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES OF THE
U.S. AIR FORCE, BARKSDALE AFB IN A UNIT OF:
"ALL NON PROFESSIONAL AND PROFESSIONAL EMPLOYEES PAID FROM
APPROPRIATED FUNDS OF THE
BARKSDALE AIR FORCE BASE AND THE ON-BASE TENANT ORGANIZATIONS . . .
(G.C. EXH. 1(C)).
PARAGRAPH 4 OF THE COMPLAINT STATED THAT RESPONDENT INTERFERED WITH,
RESTRAINED AND COERCED EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY
5 U.S.C. 7102 BY DISCIPLINING WILDER M. MIXON. PARAGRAPH 5 OF THE
COMPLAINT STATED THAT RESPONDENT DENIED MEMBERSHIP TO WILDER M. MIXON,
AN EMPLOYEE IN THE APPROPRIATE UNIT SET FORTH ABOVE IN PARAGRAPH 3 FOR
REASONS OTHER THAN: (1) FAILURE TO MEET REASONABLE OCCUPATIONAL
STANDARDS; (2) FAILURE TO TENDER DUES; OR (3) ENFORCEMENT OF
DISCIPLINE IN ACCORDANCE WITH PROCEDURES UNDER ITS CONSTITUTION OR
BY-LAWS TO THE EXTENT CONSISTENT WITH EXECUTIVE ORDER 11491 AND CHAPTER
71 OF TITLE 5 OF THE UNITED STATES CODE.
RESPONDENT'S ANSWER WAS DATED APRIL 19, 1980 (G.C. EXH. 1(G)).
PARAGRAPH 3 OF THE ANSWER DID NOT DENY THE ALLEGATIONS OF PARAGRAPH 3 OF
THE COMPLAINT BUT STATED,
"AFGE LOCAL 2000 IS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES OF THE
U.S. AIR FORCE,
BARKSDALE AIR FORCE BASE . . . THE VETERANS ADMINISTRATION MEDICAL
CENTER . . . , THE DEPUTY
MARSHALS UNIT . . . AND THE NON-APPROPRIATED FUND EMPLOYEES,
BARKSDALE AIR FORCE BASE,
LOUISIANA." (G.C. 1(G)).
PARAGRAPH 4 OF THE ANSWER STATED,
"DENIED. MS. MIXON WAS NEVER DISCIPLINED AS PERTAINS TO ANY RIGHTS
DUE HER AS GUARANTEED
BY 5 U.S.C. 7102." (G.C. EXH. 1(G)).
PARAGRAPH 5 OF THE ANSWER STATED, IN PART, AS FOLLOWS:
"MS. MIXON WAS RECOMMENDED BY THE AFGE LOCAL 2000 TRIAL COMMITTEE TO
THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL EXECUTIVE COUNCIL AND THE
LEGAL RIGHTS COMMITTEE,
WASHINGTON, D.C., FOR EXPULSION FROM MEMBERSHIP IN AFGE LOCAL 2000
FOR VIOLATIONS OF ARTICLE
XIV OF THE AFGE NATIONAL CONSTITUTION. . . THE AFGE NATIONAL
EXECUTIVE COUNCIL AND THE LEGAL
RIGHTS COMMITTEE MADE THE FINAL DECISION TO SUSPEND MS. MIXON FROM
MEMBERSHIP FOR TWO
YEARS. . . . " (G.C. EXH. 1(G)).
PARAGRAPH 6 OF THE ANSWER STATED, IN PART, AS FOLLOWS:
"(A) DENIED. THE AFGE LOCAL 2000 MEMBERSHIP FOLLOWED ALL
REQUIREMENTS OF THE LAW, THE
LABOR DEPARTMENT RULES AND REGULATIONS. . . AFGE NATIONAL
CONSTITUTION, THE LOCAL'S
CONSTITUTION AND BY LAWS, AND THE AFGE OFFICER'S MANUAL IN EVERY STEP
OF THE PROCESS FOR TRIAL
AND RECOMMENDATION OF THE BASIS IN MS. MIXON'S CASE. MS. MIXON WAS
GIVEN EVERY OPPORTUNITY TO
PARTICIPATE IN HER TRIAL . . . TO PROVE HERE INNOCENCE OF THE CHARGES
WHICH WERE MADE AGAINST
HER BY MRS. GEORGIE P. LUCAS . . . ." (G.C. EXH. 1(G)).
THE NOTICE OF HEARING, ISSUED MARCH 28, 1980, SET THE HEARING FOR
JUNE 24, 1980. BY TELEGRAM DATED JUNE 13, 1980, AFGE NATIONAL
REPRESENTATIVE CARL W. HOLT REQUESTED A POSTPONEMENT OF THE HEARING FOR
THE STATED REASONS THAT:
"1) MISS OPAL ADAMS IS OUT OF TOWN TILL JUNE 30, 1980 DUE TO DEATH IN
FAMILY.
"2) AFGE HAS VOTED TO PLACE LOCAL 2000 IN TRUSTEESHIP.
"3) I DO NOT HAVE ANY RECORDS PERTAINING TO THIS MATTER AND AM UNABLE
TO PREPARE FOR THE
SCHEDULED HEARING."
GENERAL COUNSEL OPPOSED THE REQUEST AND THE REQUEST WAS DENIED BY
TELEGRAPHIC ORDER ISSUED JUNE 20, 1980. AT THE COMMENCEMENT OF THE
HEARING, COUNSEL FOR THE GENERAL COUNSEL ANNOUNCED THAT IN REVIEWING THE
RECORDS OF REGIONAL OFFICE IT HAD BEEN DISCOVERED THAT RESPONDENT HAD,
INDEED, FILED AN ANSWER TO THE COMPLAINT; THAT, ACCORDINGLY, THE MOTION
FOR SUMMARY JUDGMENT WAS BEING WITHDRAWN. RESPONDENT RENEWED ITS
MOTION
TO POSTPONE THE HEARING FOR THE SAME REASONS PREVIOUSLY ADVANCED IN ITS
REQUEST OF JUNE 13, 1980. ASSUMING THE ABSENCE OF MS. ADAMS, NO
SHOWING WAS MADE THAT SHE WAS A NECESSARY WITNESS; NO RECORDS WERE
SHOWN TO BE UNAVAILABLE, INDEED THE DOCUMENTS IN POSSESSION OF THE
GENERAL COUNSEL, SUBSEQUENTLY INTRODUCED AS EXHIBITS, APPEAR TO
CONSTITUTE ALL RECORDS MATERIAL TO THIS PROCEEDING; AND A VOTE TO PLACE
LOCAL 2000 IN TRUSTEESHIP CONSTITUTED NO CAUSE FOR POSTPONEMENT OF THE
HEARING AND RESPONDENT'S RENEWED MOTION WAS DENIED; HOWEVER, RESPONDENT
WAS AFFORDED A RECESS TO CALL NATIONAL HEADQUARTERS AND WAS OFFERED
ADDITIONAL TIME, NOT TO EXCEED TWO HOURS, TO ARRANGE FOR THE APPEARANCE
OF DEFENSE WITNESSES EITHER BEFORE OR AFTER GENERAL COUNSEL PRESENTED
HIS CASE.
RESPONDENT ACCEPTED THE OPPORTUNITY FOR A RECESS AND CALLED NATIONAL
HEADQUARTERS AND UPON RETURN MADE TWO FURTHER MOTIONS. FIRST, THAT A
TRUSTEE HAD BEEN APPOINTED AND THE COMPLAINT WAS DIRECTED AGAINST THE
IMPROPER PARTY. SECOND, THAT MS. MIXON WAS NEVER AN EMPLOYEE OF THE
U.S. AIR FORCE, BARKSDALE AIR FORCE BASE; THAT THEREFORE, THE
ALLEGATIONS OF PARAGRAPH 3 OF THE COMPLAINT WERE FALSE AND THAT,
ACCORDINGLY, THE COMPLAINT SHOULD BE DISMISSED. COUNSEL FOR GENERAL
COUNSEL MOVED TO AMEND PARAGRAPH 3 OF THE COMPLAINT TO REFLECT THE
VETERANS ADMINISTRATION HOSPITAL UNIT, ORIGINALLY A SEPARATE EXCLUSIVE
UNIT (LOCAL 2525), BUT IN DECEMBER, 1977, MERGED WITH LOCAL 2000. WITH
FULL RECOGNITION OF RESPONDENT'S ANSWER, DATED APRIL 19, 1980, THE FACT
THAT THE COMPLAINT ALLEGED UNFAIR LABOR PRACTICES BY LOCAL 2000 AGAINST
WILDER M. MIXON, AND THAT RESPONDENT WAS FULLY AWARE OF THE SPECIFIC
ALLEGATIONS CONCERNING MS. MIXON TO WHICH IT ASSERTED THAT IT HAD ACTED
IN ACCORDANCE WITH ITS CONSTITUTION AND BY-LAWS AS PERMITTED BY THE
STATUTE, OBVIOUSLY, GENERAL COUNSEL'S MOTION DID NOT RAISE A NEW OR
DIFFERENT UNFAIR LABOR PRACTICE; RESPONDENT CAN NOT ASSERT SURPRISE;
AND, BEING FULLY APPRISED OF BASIS OF THE UNFAIR LABOR PRACTICE ALLEGED,
RESPONDENT HAD AMPLE TIME AND OPPORTUNITY, SINCE ON OR BEFORE APRIL 19,
1980, TO PREPARE ITS DEFENSE. THEREFORE, GENERAL COUNSEL'S MOTION TO
AMEND PARAGRAPH 3 OF THE COMPLAINT WAS GRANTED AND RESPONDENT'S TWO
ADDITIONAL MOTIONS WERE DENIED.
RESPONDENT ANNOUNCED ITS INTENTION NOT TO PARTICIPATE AS A PARTY AND
MR. HOLT LEFT THE COURTROOM ROOM AFTER GENERAL COUNSEL'S OPENING
STATEMENT. THE HEARING PROCEEDED WITHOUT THE PRESENCE OF RESPONDENT'S
REPRESENTATIVE. THE UNDERSIGNED, ON THE BASIS OF COUNSEL FOR GENERAL
COUNSEL'S OPENING STATEMENT, QUESTIONED JURISDICTION TO CONSIDER GENERAL
COUNSEL'S ASSERTION THAT RESPONDENT VIOLATED SEC. 16(B)(1) INASMUCH AS:
A) SEC. 16(C) PROVIDES, IN PART, THAT, "THIS SUBSECTION DOES NOT
PRECLUDE ANY LABOR ORGANIZATION FROM ENFORCING DISCIPLINE IN ACCORDANCE
WITH PROCEDURES UNDER ITS CONSTITUTION OR BY LAWS TO THE EXTENT
CONSISTENT WITH THE PROVISIONS OF THIS CHAPTER;" B) THE BASIS FOR THE
ASSERTED UNFAIR LABOR PRACTICE IS THAT RESPONDENT'S ENFORCEMENT OF
DISCIPLINE AGAINST MS. MIXON WAS NOT IN ACCORDANCE WITH PROCEDURES UNDER
ITS CONSTITUTION OR BY LAWS; AND C) SEC. 20 GOVERNS STANDARDS OF
CONDUCT FOR LABOR ORGANIZATIONS, ENFORCEMENT OF WHICH THE STATUTE HAS
DELEGATED TO THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT
RELATIONS.
RESERVING THE QUESTION OF JURISDICTION, COUNSEL FOR GENERAL COUNSEL
PRESENTED EVIDENCE AND TESTIMONY IN SUPPORT OF THE ASSERTIONS OF THE
COMPLAINT. AT THE CLOSE OF THE HEARING, JULY 24 WAS FIXED AS THE DATE
FOR MAILING BRIEFS AND COUNSEL FOR GENERAL COUNSEL WAS REQUESTED TO
SERVE NOTICE OF THE DATE FOR FILING BRIEFS ON RESPONDENT. COUNSEL FOR
GENERAL COUNSEL HAS FILED A BRIEF AND MS. OPAL B. ADAMS, PRESIDENT OF
LOCAL 2000, HAS FILED A STATEMENT, IN THE FORM OF A LETTER, WHICH HAVE
BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD, I MAKE
THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS
1. MS. WILDER M. MIXON, ALSO KNOWN AS SUE MIXON, WAS AN EMPLOYEE OF
THE VETERANS ADMINISTRATION MEDICAL CENTER UNTIL HER RETIREMENT ON
DECEMBER 15, 1979. SHE HAD BEEN A MEMBER AND OFFICER OF LOCAL 2525, THE
SEPARATE UNIT FOR THE VA MEDICAL CENTER, UNTIL ITS MERGER WITH LOCAL
2000 IN DECEMBER, 1977. IN JANUARY, 1978, SHE WAS ELECTED
SECRETARY-TREASURER OF LOCAL 2000 AND SERVED IN SUCH CAPACITY UNTIL
JANUARY, 1979, WHEN HER TERM EXPIRED.
2. BY LETTER DATED MARCH 8, 1979, ADDRESSED TO MS. MIXON, MS. OPAL
B. ADAMS, PRESIDENT OF LOCAL 2000, PURPORTEDLY ADVISED MS. MIXON THAT
SHE HAD, ON MARCH 8, 1979, APPOINTED A THREE-MEMBER INVESTIGATIVE
COMMITTEE TO INVESTIGATE CHARGES MADE BY UNIT MEMBERS AGAINST HER; THAT
THE CHARGES CITE PROBABLE VIOLATIONS OF ARTICLE XIV, AFGE NATIONAL
CONSTITUTION; AND THAT IF SHE WISHED TO REVIEW THE CHARGES, SHE MIGHT
CONTACT MS. ADAMS UPON RECEIPT OF THIS NOTICE (G.C. EXH. 3). A
MEMORANDUM, ALSO DATED MARCH 8, 1979, WAS ADDRESSED TO MR. JACK FRANKS,
INVESTIGATOR, CHAIRMAN; MR. JOE WATSON, INVESTIGATOR, MEMBER; AND MR.
JOE TAYLOR, INVESTIGATOR, MEMBER (G.C. EXH. 3). THE CHARGES, HOWEVER,
WERE DATED MARCH 12, 1979, AND, WHILE SIGNED BY MS. GEORGIE P. LUCAS,
CHIEF STEWARD, VAMC UNIT, MS. LUCAS TESTIFIED THAT THE CHARGES HAD BEEN
DRAWN UP BY MS. ADAMS (TR. 131). AS SIGNED BY MS. LUCAS, THERE WERE 42
CHARGES (NUMBERED PARAGRAPHS AND/OR COUNTS).
3. MS. MIXON TESTIFIED THAT SHE DID NOT RECEIVE THE LETTER DATED
MARCH 8, 1979, /3/ OR THE PURPORTED ATTACHMENT, MEMORANDUM ADDRESSED TO
THE INVESTIGATIVE COMMITTEE, UNTIL SOMETIME IN JUNE, 1979, WHEN SHE
RECEIVED MS. ADAMS' LETTER DATED JUNE 8, 1979, WHICH ADVISED HERE, INTER
ALIA, THAT THE INVESTIGATIVE COMMITTEE HAD MADE A REPORT OF PROBABLE
CAUSE FOR A TRIAL UNDER ARTICLE XIV; THAT THE REPORT HAD BEEN SUBMITTED
TO THE MEMBERSHIP ON MAY 14, 1979, A REGULAR MEETING WHICH MS. MIXON HAD
FAILED TO ATTEND; AND THAT THE MEMBERSHIP HAD VOTED TO HAVE HER TRIED
BY THE LOCAL 2000 EXECUTIVE BOARD AT 6:00 P.M. ON JUNE 25, 1979. THE
LETTERS OF MARCH 8, 1979, WERE ATTACHED, TOGETHER WITH A LIST OF THE
CHARGES. THE INVESTIGATIVE COMMITTEE ON MAY 9, 1979, ASSERTED THAT, IN
THE COURSE OF THEIR INVESTIGATION OF THE ORIGINAL CHARGES, THE COMMITTEE
DISCOVERED THAT MS. MIXON HAD FURTHER VIOLATED "#43 OF SEC. 2'A" BY
"COLLECTING SIGNATURES FROM VA UNIT AND NON-AFGE UNIT EMPLOYEES TO
SECEDE FROM AFGE AND GO WITH NFFE" FOR WHICH THE COMMITTEE RECOMMENDED
EXPULSION. THIS WAS ADDED, ON JUNE 7, 1979, AS THE 43RD CHARGE. (G.C.
EXH. 3).
4. MS. MIXON TESTIFIED THAT SHE SELECTED MR. MIKE KENNINGTON AS HER
REPRESENTATIVE. ABOUT NOON ON JUNE 25, 1979, MS. MIXON STATED THAT MR.
KENNINGTON CALLED AND TOLD HER HE COULD NOT ATTEND THE TRIAL SCHEDULED
FOR THAT AFTERNOON AND ADVISED HER TO ATTEND AND REQUEST A POSTPONEMENT
TO ANY DAY THE FOLLOWING WEEK EXCEPT FRIDAY. THE JUNE 25 TRIAL BODY
CONSISTED OF: LOUIE HERZBERG, CHAIRMAN, MILTON WEEKS, SAM GATLIN,
MARGUERITE LOFTIN AND MARVIS PRICE. MS. LUCAS SPECIFICALLY IDENTIFIED
HERZBERG, WEEKS AND LOFTIN AS MEMBERS OF THE EXECUTIVE BOARD AND,
PRESUMABLY, GATLIN AND PRICE WERE ALSO MEMBERS OF THE EXECUTIVE BOARD
(TR. 132, 133).
5. MS. MIXON ATTENDED THE MEETING ON JUNE 25 AND, DESPITE THE FACT
THAT ARTICLE XIV OF THE UNION'S CONSTITUTION, SECTION 4 (G.C. EXH. 2)
PROVIDES THAT THE TRIAL SHALL BE CONDUCTED EITHER BY THE LOCAL'S
EXECUTIVE BOARD OR BY A TRIAL COMMITTEE ELECTED BY THE MEMBERSHIP,
OBJECTED TO THE CONSTITUTION OF THE TRIAL BODY. IN ADDITION, SHE: A)
REQUESTED A POSTPONEMENT UNTIL THE FOLLOWING WEEK (ANY DAY EXCEPT
FRIDAY); AND B) SUBMITTED A REQUEST FOR DOCUMENTS (G.C. EXH. 4). MS.
MIXON TESTIFIED THAT THE MEMBERS OF THE TRIAL BODY AGREED TO A
POSTPONEMENT TO JULY 5, 1979; HOWEVER, MS. ADAMS, AS CHAIRMAN OF THE
EXECUTIVE BOARD, BY TELEGRAM ON JUNE 28, 1979, ADVISED MS. MIXON, IN
PART, AS FOLLOWS:
". . . BECAUSE YOU PROTESTED THE PRESENCE OF THREE OF THE TRIAL
COMMITTEE MEMBERS, YOU
RENDERED THEM WITHOUT AUTHORITY TO POSTPONE YOUR TRIAL, AND YOUR CASE
WAS REMANDED TO THE
CHAIRMAN OF THE LOCAL 2000 EXECUTIVE BOARD FOR ACTION. YOUR TRIAL
WILL PROCEED AT 6:00 P.M.,
FRIDAY, 29 JUNE 1979, WITH OR WITHOUT YOUR PRESENCE . . . " (G.C.
EXH. 5).
6. BY SEPARATE TELEGRAM ON JUNE 28, 1979, MS. ADAMS, AGAIN AS
CHAIRMAN OF AFGE LOCAL 2000 EXECUTIVE BOARD, FURTHER ADVISED MS. MIXON,
IN PART, AS FOLLOWS:
"THE AFGE LOCAL 2000 TRIAL COMMITTEE, INCLUDING OFFICIALS OF THE
LOCAL 2000 EXECUTIVE
BOARD, WILL PROCEED WITH YOUR TRIAL AT 6:00 P.M., FRIDAY, JUNE 29,
1979 . . . YOUR PRESENCE
IS REQUESTED FOR THIS TRIAL. IF YOUR DESIRE, YOU MAY HAVE A
REPRESENTATIVE PRESENT
. . . ." (G.C. EXH. 6).
6. THE JUNE 29, 1979, TRIAL COMMITTEE CONSISTED OF: ROBERT YAGEL,
CHAIRMAN, MILTON WEEKS AND DENNIS HARDIMAN, MEMBERS. MS. LUCAS
TESTIFIED THAT MR. WEEKS WAS A MEMBER OF THE EXECUTIVE BOARD BUT THAT
MESSRS. YAGEL AND HARDIMAN WERE NOT (TR. 136).
8. MS. MIXON APPEARED ON JUNE 29 AND PRESENTED A PROTEST (G.C.
EXHS. 7, 8) AND LEFT. THE TRIAL PROCEEDED IN HER ABSENCE (G.C. EXH. 8);
THE MEMBERS OF THE TRIAL COMMITTEE UNANIMOUSLY FOUND MS. MIXON GUILTY
AS CHARGED AND RECOMMENDED TO THE MEMBERSHIP THAT SHE BE EXPELLED FROM
MEMBERSHIP; ROBERT YAGEL, CHAIRMAN, TRIAL COMMITTEE, NOTIFIED MS.
MIXON BY TELEGRAM ON SEPTEMBER 10, 1979, THAT ON SEPTEMBER 10, 1979, THE
TRIAL COMMITTEE'S RECOMMENDATION WOULD BE PRESENTED TO THE MEMBERSHIP AT
ITS REGULAR MEETING. /4/ ALTHOUGH THE TELEGRAM WAS SENT AT 8:25 A.M.,
BECAUSE SHE DID NOT GO DIRECTLY HOME FROM WORK, MS. MIXON STATED SHE DID
NOT SEE THE TELEGRAM UNTIL 6:30 P.M., AN HOUR BEFORE THE SCHEDULED
MEETING, AND DID NOT ATTEND THE MEETING.
9. BY LETTER DATED SEPTEMBER 28, 1979 (G.C. 12), MS. ADAMS, AS
PRESIDENT OF LOCAL 2000, ADVISED MS. MIXON THAT THE MEMBERSHIP ON
SEPTEMBER 10 HAD VOTED FOR HER DISMISSAL AND SET FORTH HER RIGHT TO
APPEAL. /5/
10. BY LETTER, ALSO DATED SEPTEMBER 28, 1979, PRESIDENT ADAMS
ADVISED MR. L.M. FRAZIER, JR., HOSPITAL DIRECTOR, VA MEDICAL CENTER,
THAT ON SEPTEMBER 10, 1979, MS. MIXON WAS EXPELLED FROM MEMBERSHIP AND,
"SINCE MS. MIXON IS NO LONGER A MEMBER IN GOOD STANDING, REQUEST THAT
YOU INSTRUCT YOUR
CHIEF OF FINANCE . . . TO TERMINATE MS. MIXON'S UNION DUES
WITHHOLDING . . . THAT I BE
NOTIFIED OF THE AMOUNT OF DUES WITHHELD . . . SINCE 11 SEPTEMBER
1979. THE UNION WILL THEN
REIMBURSE MS. MIXON FOR DUES WITHHELD AND PAID . . . SINCE 11
SEPTEMBER 1979
. . . ." (G.C. EXH. 13).
MS. MIXON'S EMPLOYMENT STATUS WAS NOT, OF COURSE, AFFECTED IN ANY
MANNER AND SHE CONTINUED HER EMPLOYMENT UNTIL HER VOLUNTARY RETIREMENT
ON DECEMBER 15, 1979.
11. CHARGES (NUMBERED PARAGRAPHS AND/OR COUNTS) NOS. 4, 6, 12, AND
16 /6/ RELATED IN WHOLE, OR IN PART, TO THE LATE MS. SALLIE J. WHITAKER
AND TO MS. GOLDA I. MCDONALD. GENERAL COUNSEL'S POSITION IS THAT THE
DECISION OF JUDGE OLIVER, IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2000, CASE NOS. 6-CO-1, 6-CO-2 AND 6-CO-3
(SALLIE J. WHITAKER AND G. IRENE MCDONALD CHARGING PARTIES), DATED
APRIL 29, 1980, WHICH FOUND THAT LOCAL 2000, INTER ALIA, VIOLATED SEC.
16(B)(1) OF THE STATUTE BY LETTERS THREATENING WHITAKER AND/OR MCDONALD
WITH UNSPECIFIED CHARGES IF THEY ATTEMPTED TO PAY DUES AND RETAIN
MEMBERSHIP; AND VIOLATED SEC. 19(C) OF EXECUTIVE ORDER 11491, AS
AMENDED, BY EJECTING WHITAKER FROM A UNION MEETING; AND VIOLATED SEC.
16(C) OF THE STATUTE BY DENYING MEMBERSHIP TO WHITAKER AND MCDONALD BY
ERRONEOUSLY STATING THAT THEY HAD NOT BEEN MEMBERS IN GOOD STANDING
SINCE MARCH, 1978 AND JULY 1978, RESPECTIVELY, RENDERS CHARGES 4, 6, 12
AND 16 AGAINST MS. MIXON UNLAWFUL FOR THE REASON THAT THESE CHARGES
CONCERN THE SAME MATTERS ADDRESSED TO JUDGE OLIVER. THE FOUR CHARGES IN
QUESTION READ AS FOLLOWS:
"4. COLLUSION WITH MS. SALLIE J. WHITAKER AND GOLDA I. MCDONALD,
CAUSING DISSENTION AND
TROUBLE FOR THE LOCAL 2000 PRESIDENT AND OTHER OFFICIALS AT THE 13
NOV 78 MEETING; GAVING
(SIC) AID AND ABETMENT TO THEM AGAINST THE MEMBERSHIP.
"6. IGNORING AND REFUSING TO FOLLOW DIRECTIONS OF THE MEMBERSHIP AND
THE PRESIDENT TO
REFUND DUES ILLEGALLY ACCEPTED BY HER FROM SALLIE WHITAKER AND IRENE
MCDONALD AND ATTEMPTING
TO COVER UP WHAT SHE HAD DONE.
"12. INSUBORDINATE TO THE PRESIDENT AT MEETINGS-- REFUSED TO BE
ACKNOWLEDGED FOR THE
FLOOR-- AND BROUGHT SELECT MEMBERS TO THE MEETING TO DISRUPT AND TAKE
OVER THE CHAIR WITHOUT
APPROVAL. (DISSENTERS ENGAGING IN THESE DISRUPTIONS WITH MS. MIXON
WERE MIKE KENNINGTON,
ROBERT LANGLEY, ANN KENNINGTON, SALLIE WHITAKER, IRENE MCDONALD).
"16. FALSIFICATION OF FINANCIAL RECORDS OF MS. SALLIE J. WHITAKER
AND MS. GOLDA
I. MCDONALD AS TO WHEN THEIR PAYMENTS OF DUES WERE MADE, AND REFUSAL
TO REFUND ALL ILLEGAL
DUES PAID TO THE LOCAL SEC-TRES FROM SEPT-13 NOV 78; INSTEAD
SCHEMING WITH MS. WHITAKER AND
MS. MCDONALD TO GET THEM ON DUES DEDUCTION WITHOUT BENEFIT OF
APPROVAL MEMBERSHIP."
12. COUNSEL FOR GENERAL COUNSEL STATED THAT THE OTHER 38 ORIGINAL
CHARGES WERE NOT QUESTIONED; THAT "WE SHOULDN'T GET INTO LITIGATION" OF
THEM. NEVERTHELESS, GENERAL COUNSEL'S POSITION WAS STATED, IN EFFECT,
THAT EVEN ASSUMING 38 VALID REASONS FOR DISCIPLINE, IF THE DISCIPLINE OF
MS. MIXON RESULTED IN ANY PART FROM IMPROPER MOTIVATION, THE DISCIPLINE
VIOLATED SEC. 16(B)(1) AND (8). AS TO THE 43RD CHARGE, IT IS CERTAINLY
CORRECT THAT IT WAS ADDED TO THE SPECIFICATION OF CHARGES ON JUNE 7,
1979, AND, IT WOULD APPEAR THAT MS. MIXON'S FIRST WRITTEN NOTIFICATION
OF THIS CHARGE WAS THE SPECIFICATION OF CHARGES, WHICH CONTAINED IT AS
CHARGE NO. 43, TRANSMITTED WITH MS. ADAMS' LETTER OF JUNE 8, 1979;
HOWEVER, THIS ADDITIONAL VIOLATION WAS SET FORTH BY JACK E. FRANKS,
CHAIRMAN OF THE INVESTIGATION COMMITTEE, ON MAY 9, 1979, AS PART OF THE
REPORT OF INVESTIGATION SUBMITTED TO THE MEMBERSHIP ON MAY 14, 1979.
CONCLUSIONS
THE THRESHHOLD ISSUE IN THIS CASE IS ONE OF JURISDICTION, I.E., MAY
ALLEGED DEPARTURES FROM A UNION'S CONSTITUTION AND BY-LAWS IN THE
IMPOSITION OF DISCIPLINE OF A MEMBER BE LITIGATED AS UNFAIR LABOR
PRACTICES BY THE AUTHORITY OR DOES THE CONCLUDING SENTENCE OF SEC. 16(C)
AND SEC. 20 REQUIRE THAT SUCH ALLEGED DEPARTURES FROM A UNION'S
CONSTITUTION AND BY-LAWS BE LITIGATED BEFORE THE ASSISTANT SECRETARY
PURSUANT TO SEC. 20 OF THE STATUTE AND THE REGULATIONS DULY ISSUED
PURSUANT THERETO, FED. REG. VOL. 45, NO. 47, MARCH 7, 1980, P. 15156,
ET. SEQ.; NO. 84, APRIL 29, 1980, P. 28322 (CORRECTIONS TO FINAL
REGULATIONS PUBLISHED ON MARCH 7, 1980), 29 C.F.R.PARTS 201-209?
THE CONCLUDING SENTENCE OF SEC. 16(C) /7/ IS SUBSTANTIALLY SIMILAR TO
THE PROVISO TO SEC. 8(B)(1)(A) OF THE NATIONAL LABOR RELATIONS ACT, /8/
INDEED SECTION 9(B)(1) OF H.R. 1589, INTRODUCED BY CONGRESSMAN FORD ON
JANUARY 10, 1977, REFLECTED THE FORMAT AND FOLLOWED THE LANGUAGE OF
8(B)(1)(A) AND WHILE OTHER BILLS, AS WELL AS THE LANGUAGE AS ENACTED,
REMOVED THE PROVISION FORM (B)(1) AND PLACED IT IN 16(C), THE
LEGISLATIVE HISTORY REFLECTS A CONSCIOUS INTENT TO "TRACK" THE
SUBSTANTIALLY SIMILAR PROVISIONS OF THE NLRA. I CONCLUDE, FULLY IN
AGREEMENT WITH THE WELL REASONED DECISION OF JUDGE STERNBURG, IN
NATIONAL TREASURY EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 53, CASE NO. 2-CO-3 (ALJ JULY 15, 1980), THAT THE CONCLUDING
SENTENCE OF SEC. 16(C) OF THE STATUTE, AS DOES THE PROVISO TO 8(B)(1)(A)
OF THE NLRA, "ASSURES A UNION FREEDOM OF SELF REGULATION WHERE INTERNAL
AFFAIRS ARE CONCERNED" ALTHOUGH SUCH FREEDOM OF REGULATION DOES NOT
EXTEND TO, OR ENCOMPASS THE IMPOSITION OF PENALTIES "FOR UTILIZING OR
PARTICIPATING IN THE AUTHORITY'S PROCESSES . . . ." BECAUSE I CONCLUDE,
FOR REASONS MORE FULLY SET FORTH BELOW, THAT THE DISCIPLINE OF MS. MIXON
CONCERNED WHOLLY INTERNAL AFFAIRS OF A UNION, SUCH DISCIPLINE IS NOT
COGNIZABLE UNDER THE UNFAIR LABOR PRACTICE PROVISIONS OF THE STATUTE;
AND THE ALLEGED DEPARTURES BY LOCAL 2000 FROM ITS CONSTITUTION AND BY
LAWS ARE MATTERS DELEGATED BY SEC. 20 OF THE STATUTE TO THE ASSISTANT
SECRETARY OF LABOR FOR LABOR MANAGEMENT RELATIONS WHOSE JURISDICTION
OVER STANDARDS OF CONDUCT, INCLUDING SAFEGUARDS AGAINST IMPROPER
DISCIPLINARY ACTION AND PROCEEDINGS FOR ENFORCING STANDARDS OF CONDUCT,
/9/ IS EXCLUSIVE EXCEPT WHERE THE COMPLAINT DOES NOT CONCERN AN INTERNAL
UNION MATTER BUT TOUCHES A PART OF THE PUBLIC DOMAIN COVERED BY THE
STATUTE. SEE, NATIONAL LABOR RELATIONS BOARD V. INDUSTRIAL UNION OF
MARINE AND SHIPBUILDING WORKERS OF AMERICA, AFL-CIO, 391 U.S. 418(1966).
UNDER EXECUTIVE ORDER 11491, AS AMENDED, THE ASSISTANT SECRETARY,
PURSUANT TO SECTION 6(A)(4), DECIDED UNFAIR LABOR PRACTICE COMPLAINTS,
UNDER SECTION 19, AND ALLEGED VIOLATIONS OF THE STANDARDS OF CONDUCT,
UNDER SECTION 18, AND, ACCORDINGLY, NO QUESTION OF JURISDICTION OF THE
ASSISTANT SECRETARY EXISTED SINCE THE ASSISTANT SECRETARY HAD
JURISDICTION WHETHER THE MATTER AROSE UNDER SECTION 18 OR UNDER SECTION
19. THIS IS NO LONGER TRUE. AS STATED IN S.REP. 95-969
" . . . THE INITIAL JURISDICTION TO DECIDE ALLEGED VIOLATIONS OF THE
STANDARDS OF CONDUCT
FOR LABOR ORGANIZATIONS WILL BE RETAINED BY THE ASSISTANT SECRETARY,
WHO ADMINISTERS SIMILAR
STANDARDS IN THE PRIVATE SECTOR." LEGISLATIVE HISTORY OF THE FEDERAL
SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978.
COMM. PRINT NO. 96-7,
COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES,
96TH CONG., 1ST SESS.,
NOVEMBER 19, 1979, P. 760 (HEREINAFTER REFERRED TO AS "LEGISLATIVE
HISTORY")
* * * *
"SUBSECTION (D) REQUIRES THAT COMPLAINTS OF VIOLATIONS OF THIS
SECTION BE FILED WITH THE
ASSISTANT SECRETARY . . . THE POWER AND DUTY TO DECIDE ALLEGED
VIOLATIONS OF THE STANDARDS OF
CONDUCT ARE NOT BEING TRANSFERRED TO THE AUTHORITY BECAUSE THE
ASSISTANT SECRETARY ADMINISTERS
SIMILAR STANDARDS IN THE PRIVATE SECTOR . . . ." (LEGISLATIVE
HISTORY, P. 768)
AS NOTED ABOVE, THE CONCLUDING SENTENCE OF SEC. 16(C), "THIS
SUBSECTION DOES NOT PRECLUDE ANY LABOR ORGANIZATION FROM ENFORCING
DISCIPLINE IN ACCORDANCE WITH PROCEDURES UNDER ITS CONSTITUTION OR BY
LAWS TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF THIS CHAPTER," IS
SUBSTANTIALLY SIMILAR TO THE PROVISO OF SECTION 8(B)(1)(A) OF THE NLRA
AND THE CONSTRUCTION AND INTERPRETATION OF 8(B)(1)(A) ARE FULLY
APPLICABLE TO THE CONSTRUCTION AND INTERPRETATION OF THIS PORTION OF
SEC. 16(C) OF THE STATUTE. IN NATIONAL LABOR RELATIONS BOARD V.
ALLIS-CHALMERS MANUFACTURING COMPANY, 388 U.S. 175(1967), FINES WERE
IMPOSED AGAINST MEMBERS WHO CROSSED UNION'S PICKET LINE AND WORKED
DURING AN AUTHORIZED STRIKE. THE COURT HELD THAT NEITHER THE IMPOSITION
OF THE FINES NOR SUIT FOR COLLECTION OF THE FINES VIOLATED 8(B)(1)(A)
STATING, IN PART, AS FOLLOWS:
" . . . IT IS NO ANSWER THAT THE PROVISO TO SEC. 8(B)(1)(A) PRESERVES
TO THE UNION THE
POWER TO EXPEL THE OFFENDING MEMBER. WHERE THE UNION IS STRONG AND
MEMBERSHIP THEREFORE
VALUABLE, TO REQUIRE EXPULSION OF THE MEMBER VISITS A FAR MORE SEVERE
PENALTY UPON THE MEMBER
THAN A REASONABLE FINE . . . (388 U.S.AT 183).
* * * *
"WHAT LEGISLATIVE MATERIALS THERE ARE DEALING WITH SEC. 8(B)(1)(A)
CONTAIN NOT A SINGLE
WORD REFERRING TO THE APPLICATION OF ITS PROHIBITIONS TO TRADITIONAL
INTERNAL UNION DISCIPLINE
IN GENERAL, OR DISCIPLINARY FINES IN PARTICULAR. ON THE CONTRARY
THERE ARE A NUMBER OF
ASSURANCES BY ITS SPONSORS THAT THE SECTION WAS NOT MEANT TO REGULATE
THE INTERNAL AFFAIRS OF
UNIONS. (388 U.S.AT 185-186).
* * * *
" . . . AT THE VERY LEAST IT CAN BE SAID THAT THE PROVISO PRESERVES
THE RIGHTS OF UNIONS TO
IMPOSE FINES, AS A LESSER PENALTY THAN EXPULSION, AND TO IMPOSE FINES
WHICH CARRY THE EXPLICIT
OR IMPLICIT THREAT OF EXPULSION FOR NONPAYMENT . . . (388 U.S.AT
191-192).
* * * *
"THE 1959 LANDRUM-GRIFFIN AMENDMENTS . . . ALSO NEGATE THE REACH
GIVEN SEC. 8(B)(1)(A) BY
THE MAJORITY EN BANC BELOW . . . IN 1959 CONGRESS DID SEEK TO
PROTECT UNION MEMBERS IN THEIR
RELATIONSHIP TO THE UNION BY ADOPTING MEASURES TO INSURE THE
PROVISION OF DEMOCRATIC PROCESSES
IN THE CONDUCT OF UNION AFFAIRS AND PROCEDURAL DUE PROCESS TO MEMBERS
SUBJECTED TO DISCIPLINE
. . . (388 U.S.AT 193-194).
* * * *
"THUS THIS HISTORY OF CONGRESSIONAL ACTION DOES NOT SUPPORT A
CONCLUSION THAT THE
TAFT-HARTLEY PROHIBITIONS AGAINST RESTRAINT OR COERCION OF AN
EMPLOYEE TO REFRAIN FROM
CONCERTED ACTIVITIES INCLUDED A PROHIBITION AGAINST THE IMPOSITION OF
FINES ON MEMBERS WHO
DECLINE TO HONOR AN AUTHORIZED STRIKE AND ATTEMPTS TO COLLECT SUCH
FINES. RATHER, THE
CONTRARY INFERENCE IS MORE JUSTIFIED IN LIGHT OF THE REPEATED REFRAIN
THROUGHOUT THE DEBATES
ON SEC. 8(B)(1)(A) AND OTHER SECTIONS THAT CONGRESS DID NOT PROPOSE
ANY LIMITATIONS WITH
RESPECT TO THE INTERNAL AFFAIRS OF UNIONS, ASIDE FROM BARRING
ENFORCEMENT OF A UNION'S
INTERNAL REGULATION TO AFFECT A MEMBER'S EMPLOYMENT STATUS." (388
U.S.AT 195).
IN LOCAL 138, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO AND
CHARLES S. SKURA, 148 NLRB 679(1964), A MEMBER, SKURA, FILED AN UNFAIR
LABOR PRACTICE CHARGE AGAINST THE UNION CLAIMING DISCRIMINATION IN
REFUSING TO REFER HIM TO AVAILABLE EMPLOYMENT; SKURA WITHDREW THE
CHARGE WHEN THE REGIONAL DIRECTOR OF THE BOARD ADVISED HIM THAT A
COMPLAINT WOULD NOT ISSUE; A UNION OFFICIAL FILED A UNION GRIEVANCE
AGAINST SKURA CHARGING HIM WITH A VIOLATION OF THE UNION'S BY LAWS FOR
HAVING FILED THE ULP CHARGE BEFORE EXHAUSTING HIS INTERNAL UNION
REMEDIES; SKURA WAS FINED $200.00 AND HIS TENDER OF DUES WAS REJECTED
BECAUSE HE HAD AN UNPAID FINE OUTSTANDING; SKURA FILED A SECOND CHARGE.
THE COMPLAINT ALLEGED THAT THE IMPOSITION OF A FINE FOR FILING AN
UNFAIR LABOR PRACTICE CHARGE VIOLATED 8(B)(1)(A). THE UNION CONTENDED
THAT SKURA WAS NOT FINED FOR FILING CHARGES BUT FOR FAILURE TO EXHAUST
HIS INTERNAL REMEDIES AND THAT ENFORCEMENT OF SUCH RULE BY A FINE WAS A
REASONABLE EXERCISE OF A UNION'S RIGHT TO ADMINISTER ITS INTERNAL
AFFAIRS. THE BOARD REJECTED THE ASSERTION THAT ANY UNION RULE COULD
IMPAIR THE FREE ACCESS TO ITS PROCESSES AND STATED, IN PART, AS FOLLOWS:
"IT IS WELL SETTLED THAT AN EMPLOYER WHO DISCRIMINATES AGAINST AN
EMPLOYEE BECAUSE HE HAS
FILED CHARGES UNDER THE ACT VIOLATES NOT ONLY SECTION 8(A)(4) BUT
ALSO SECTION 8(A)(1). NOT
ONLY DOES THE BOARD HAVE THE AUTHORITY TO PROTECT EMPLOYEES WHO
PARTICIPATE IN THE BOARD'S
PROCESSES, BUT IT HAS BEEN HELD THAT THE BOARD HAS AN AFFIRMATIVE
DUTY TO EXERCISE THAT
AUTHORITY TO ITS OUTERMOST LIMITS TO PROTECT SUCH EMPLOYEES.
"JUST AS AN EMPLOYER VIOLATES THE ACT BY RESORTING TO RESTRAINT AND
COERCION TO RESTRICT
THE RIGHT OF AN EMPLOYEE TO FILE A CHARGE, SO TOO, DOES A LABOR
ORGANIZATION INFRINGE THE
RIGHTS OF EMPLOYEES UNDER THIS LAW BY RESORTING TO UNLAWFUL MEANS TO
PREVENT OR RESTRICT
EMPLOYEES FROM FILING CHARGES. AS SUCH CONDUCT BY AN EMPLOYER
VIOLATES SECTION 8(A)(1), SO
DOES A LABOR ORGANIZATION'S USE OF RESTRAINT OR COERCION VIOLATE
SECTION 8(B)(1)(A)." (148
NLRB AT 681-682).
WITH RESPECT TO SECTION 101(A)(4) OF THE LABOR-MANAGEMENT REPORTING
AND DISCLOSURE ACT (LANDRUM-GRIFFIN ACT), AND, IN PARTICULAR, THE
PROVISION THAT ". . . ANY SUCH MEMBER MAY BE REQUIRED TO EXHAUST
REASONABLE HEARING PROCEDURES (BUT NOT TO EXCEED A FOUR MONTH LAPSE OF
TIME) . . . BEFORE INSTITUTING LEGAL OR ADMINISTRATIVE PROCEEDINGS
AGAINST SUCH ORGANIZATION OR ANY OFFICER THEREOF . . . ", THE BOARD
FURTHER STATED, IN PART, AS FOLLOWS:
" . . . THUS, (PROFESSOR) COX CONCLUDES THAT SECTION 101(A)(4) SHOULD
BE VIEWED AS
OUTLAWING UNION RULES WHICH COUPLE AN EXHAUSTION REQUIREMENT WITH A
PROVISION FOR DISCIPLINE
FOR FAILING TO EXHAUST. WE ARE IN COMPLETE AGREEMENT WITH THESE
VIEWS.
* * * *
"ACCORDINGLY, WE FIND THAT RESPONDENT VIOLATED SECTION 8(B)(1)(A) OF
THE ACT BY FINING
SKURA BECAUSE HE FAILED TO EXHAUST HIS INTERNAL UNION REMEDIES PRIOR
TO FILING CHARGES WITH
THE BOARD." (148 NLRB AT 684).
IN NATIONAL LABOR RELATIONS BOARD V. MARINE AND SHIPBUILDING WORKERS
OF AMERICA, AFL-CIO, 391 U.S. 418(1968), THE SUPREME COURT WAS
CONFRONTED WITH EXPULSION OF A MEMBER FOR FAILING TO EXHAUST INTRA-UNION
GRIEVANCE PROCEDURES BEFORE FILING A CHARGE WITH THE NLRB AND, IN FULL
AGREEMENT WITH THE BOARD'S SKURA, SUPRA, DECISION, HELD THAT A UNION CAN
NOT EXPEL A MEMBER FOR FAILING TO EXHAUST INTRA-UNION GRIEVANCE
PROCEDURES ON MATTERS THAT TOUCHES AN AREA COVERED BY THE NLRA
NOTWITHSTANDING SECTION 101(A)(4) OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT SINCE EXPULSION IS PERMISSIBLE ONLY WHEN DISPUTED
CONCERNS SOLELY INTERNAL UNION MATTERS, STATING, IN PART, AS FOLLOWS:
"WE HELD IN NATIONAL LABOR RELATIONS BOARD V. ALLIS-CHALMERS MFG.
CO., 388 U.S. 175 THAT
SEC. 8(B)(1)(A) DOES NOT PREVENT A UNION FROM IMPOSING FINES ON
MEMBERS WHO CROSS A PICKET
LINE CREATED TO IMPLEMENT AN AUTHORIZED STRIKE. THE STRIKE, WE SAID,
'IS THE ULTIMATE WEAPON
IN LABOR'S ARSENAL FOR ACHIEVING AGREEMENT UPON ITS TERMS' AND THE
POWER TO FINE OR EXPEL A
STRIKE-BREAKER 'IS ESSENTIAL IF THE UNION IS TO BE AN EFFECTIVE
BARGAINING AGENT.' ID., AT
181.
"THUS SEC. 8(B)(1)(A) ASSURES A UNION FREEDOM OF SELF-REGULATION
WHERE ITS LEGITIMATE
INTERNAL AFFAIRS ARE CONCERNED. BUT WHERE A UNION RULE PENALIZES A
MEMBER FOR FILING AN
UNFAIR LABOR PRACTICE CHARGE WITH THE BOARD OTHER CONSIDERATIONS OF
PUBLIC POLICY COME INTO
PLAY.
" . . . A PROCEEDING BY THE BOARD IS NOT TO ADJUDICATE PRIVATE RIGHTS
BUT IS TO EFFECTUATE
A PUBLIC POLICY. THE BOARD CANNOT INITIATE ITS OWN PROCEEDINGS;
IMPLEMENTATION OF THE ACT IS
DEPENDENT 'UPON THE INITIATIVE OF INDIVIDUAL PERSONS.' NASH V.
FLORIDA INDUSTRIAL COMMISSION,
389 U.S. 235. . . . ANY COERCION USED TO DISCOURAGE, RETARD, OR
DEFEAT THAT ACCESS IS BEYOND
THE LEGITIMATE INTERESTS OF A LABOR ORGANIZATION. THAT WAS THE
PHILOSOPHY OF THE BOARD IN THE
SKURA CASE . . . , AND WE AGREE THAT THE OVERRIDING PUBLIC INTEREST
MAKES UNIMPEDED ACCESS TO
THE BOARD THE ONLY HEALTHY ALTERNATIVE, EXCEPT AND UNLESS PLAINLY
INTERNAL AFFAIRS OF THE
UNION ARE INVOLVED. (391 U.S.AT 423-425).
* * * *
"THE COURT OF APPEALS FOUND SUPPORT FOR ITS CONTRARY POSITION IN SEC.
101(A)(4) OF THE
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959. 73 STAT.
529, 29
U.S.C. 411(A)(4). WHILE THAT PROVISION PROHIBITS A UNION FROM
LIMITING THE RIGHT OF A MEMBER
TO INSTITUTE AN ACTION IN ANY COURT OR IN A PROCEEDING BEFORE ANY
ADMINISTRATIVE AGENCY, IT
PROVIDES THAT A MEMBER 'MAY BE REQUIRED TO EXHAUST REASONABLE HEARING
PROCEDURES' 'NOT TO
EXCEED A FOUR-MONTH LAPSE OF TIME'.
"WE CONCLUDE THAT 'MAY BE REQUIRED' IS NOT A GRANT OF AUTHORITY TO
UNIONS MORE FIRMLY TO
POLICY THEIR MEMBERS BUT A STATEMENT OF POLICY THAT THE PUBLIC
TRIBUNALS WHOSE AID IS INVOKED
MAY IN THEIR DISCRETION STAY THEIR HANDS FOR FOUR MONTHS, WHILE THE
AGGRIEVED PERSON SEEKS
RELIEF WITHIN THE UNION. . . . (391 U.S.AT 425-426).
* * * *
"WE CONCLUDE THAT UNIONS WERE AUTHORIZED TO HAVE HEARING PROCEDURES
FOR PROCESSING
GRIEVANCES OF MEMBERS . . . BUT THAT A COURT OR AGENCY MIGHT . . .
ENTERTAIN THE COMPLAINT
EVEN THOUGH THOSE PROCEDURES HAD NOT BEEN EXHAUSTED. WE ALSO
CONCLUDE . . . THAT WHERE THE
COMPLAINT OR GRIEVANCE DOES NOT CONCERN AN INTERNAL UNION MATTER, BUT
TOUCHES A PART OF THE
PUBLIC DOMAIN COVERED BY THE ACT, FAILURE TO RESORT TO ANY
INTRA-UNION GRIEVANCE PROCEDURE IS
NOT GROUNDS FOR EXPULSION FROM A UNION . . . ." (391 U.S.AT 428).
SCOFIELD V. NATIONAL LABOR RELATIONS BOARD, 394 U.S.AT 423(1969)
CONCERNED ENFORCEMENT BY REASONABLE FINES OF UNION RULE IMPOSING A
CEILING ON PIECEWORK PRODUCTION. IN HOLDING SUCH RULE VALID, AND ITS
ENFORCEMENT NOT IN VIOLATION OF SEC. 8(B)(1)(A), THE COURT STATED, IN
PART, AS FOLLOWS:
"SECTION 8(B)(1) MAKES IT AN UNFAIR LABOR PRACTICE TO 'RESTRAIN OR
COERCE (A) EMPLOYEES IN
THE EXERCISE OF THE RIGHTS GUARANTEED IN (SEC. 7); PROVIDED, THAT
THIS PARAGRAPH SHALL NOT
IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PRESCRIBE ITS OWN RULES
WITH REGARD TO THE
ACQUISITION OR RETENTION OF MEMBERSHIP THEREIN . . . '
"BASED ON THE LEGISLATIVE HISTORY OF THE SECTION, INCLUDING ITS
PROVISO, THE COURT IN NLRB
V. ALLIS-CHALMERS MFG. CO. . . . DISTINGUISHED BETWEEN INTERNAL AND
EXTERNAL ENFORCEMENT OF
UNION RULES AND HELD THAT 'CONGRESS DID NOT PROPOSE ANY LIMITATIONS
WITH RESPECT TO THE
INTERNAL AFFAIRS OF UNIONS, ASIDE FROM BARRING ENFORCEMENT OF A
UNION'S INTERNAL REGULATIONS
TO AFFECT A MEMBER'S EMPLOYMENT STATUS.' . . .
"THIS INTERPRETATION OF SEC. 8(B)(1) . . . WAS REINFORCED BY THE
LANDRUM-GRIFFIN ACT OF
1959 WHICH, ALTHOUGH IT DEALT WITH THE INTERNAL AFFAIRS OF UNIONS,
INCLUDING THE PROCEDURES
FOR IMPOSING FINES OR EXPULSION, DID NOT PURPORT TO OVERTURN OR
MODIFY THE BOARD'S
INTERPRETATION OF SEC. 8(B)(1) . . .
"ALTHOUGH THE BOARD'S CONSTRUCTION OF THE SECTION EMPHASIZES THE
SANCTION IMPOSED, RATHER
THAN THE RULE ITSELF, AND DOES NOT INVOLVE THE BOARD IN JUDGING THE
FAIRNESS OR WISDOM OF
PARTICULAR UNION RULES, IT HAS BECOME CLEAR THAT IF THE RULE INVADES
OR FRUSTRATES AN
OVERRIDING POLICY OF THE LABOR LAWS THE RULE MAY NOT BE ENFORCED,
EVEN BY FINE OR EXPULSION,
WITHOUT VIOLATING SEC. 8(B)(1) . . . (394 U.S.AT 428-430).
* * * *
" . . . SEC. 8(B)(1) LEAVES A UNION FREE TO ENFORCE A PROPERLY
ADOPTED RULE WHICH REFLECTS
A LEGITIMATE UNION INTEREST, IMPAIRS NO POLICY CONGRESS HAS IMBEDDED
IN THE LABOR LAWS, AND IS
REASONABLY ENFORCED AGAINST UNION MEMBERS WHO ARE FREE TO LEAVE THE
UNION AND ESCAPE THE RULE
. . . (394 U.S.AT 430).
* * * *
"WE AFFIRM, HOLDING THAT THE UNION RULE IS VALID AND THAT ITS
ENFORCEMENT BY REASONABLE
FINES DOES NOT CONSTITUTE THE RESTRAINT OR COERCION PROSCRIBED BY
SEC. 8(B)(1)(A)." (494
U.S.AT 436).
SECTION 16(C) OF THE STATUTE /10/ PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
"(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 --
* * * *
(2) TO TENDER DUES UNIFORMALY 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 BY-LAWS TO THE
EXTENT CONSISTENT WITH THE
PROVISIONS OF THIS CHAPTER." (5 U.S.C. 7116(C)).
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000,
CASE NOS. 6-CO-1; 6-CO-2; 6-CO-3, SUPRA, CONCERNED WHOLLY THE ALLEGED
DENIAL OF MEMBERSHIP FOR REASONS OTHER THAN THE FAILURE TO TENDER DUES,
WHICH IS AN UNFAIR LABOR PRACTICE UNDER THE STATUTE. ASSERTION OF
JURISDICTION UNDER SEC. 16 WAS FULLY IN ACCORD WITH THE MANDATE OF THE
STATUTE.
BY STARK CONTRAST, THE CHARGES AGAINST MS. MIXON ON THEIR FACE
CONCERNED LEGITIMATE INTERNAL AFFAIRS OF LOCAL 2000. FOR EXAMPLE,
"DISRUPTIVE ACTIONS AT UNION MEETINGS;" "FAILURE TO PERFORM DUTIES OF
SECRETARY-TREASURER;" "DROPPED 329 MEMBERS DURING 1978 WITHOUT THE
KNOWLEDGE AND APPROVAL OF THE MEMBERSHIP;" "REFUSED TO MERGE BOOKS OF
LOCAL 3727 IN JUNE 1978, ALTHOUGH DIRECTED BY THE PRESIDENT TO DO SO;"
"FAILURE TO PERFORM DUTIES, MAKE REPORTS TO IRS AND LABOR DEPT.;"
"REFUSED TO TURN OVER ALL RECORDS AND PROPERTY OF UNION UPON GOING OUT
OF OFFICE;" "REFUSED TO PROCESS 1187S FOR SEVERED MEMBERS;" "FAILURE TO
FOLLOW &THE INSTRUCTIONS OF THE LOCAL MEMBERSHIP TO BILL NON
DUES-DEDUCTION MEMBERS;" "REFUSED TO MERGE FINANCES OF LOCAL 2525 WITH
2000." GENERAL COUNSEL DOES NOT QUESTION THE FACT THAT, EXCEPT AS TO
FOUR CHARGES WHICH ARE DISCUSSED HEREINAFTER, THE CHARGES AGAINST MS.
MIXON CONCERNED LEGITIMATE INTERNAL UNION AFFAIRS; BUT ASSERTS THAT
DISCIPLINE OF MS. MIXON WAS, NEVERTHELESS, IMPROPER BECAUSE OF ASSERTED
DEPARTURES BY LOCAL 2000 FROM ITS CONSTITUTION. THAT LOCAL 2000
PURPORTED TO HAVE ACTED IN STRICT COMPLIANCE WITH ITS CONSTITUTION WITH
REGARD TO MS. MIXON IS NOT QUESTIONED. THUS, FULLY IN ACCORD WITH THE
CONSTITUTION THERE WERE WRITTEN CHARGES; THE WRITTEN CHARGES WERE
PURPORTEDLY SERVED ON MS. MIXON AT THE TIME OF THEIR REFERRAL TO A
THREE-MEMBER INVESTIGATIVE COMMITTEE; THE COMMITTEE MADE AN
INVESTIGATION OF THE CHARGES AND RECOMMENDED TO THE MEMBERSHIP THAT MS.
MIXON BE TRIED ON THE CHARGES; A TRIAL COMMITTEE WAS DESIGNATED; A
TRIAL WAS HELD; THE TRIAL COMMITTEE FOUND MS. MIXON GUILTY AND
RECOMMENDED EXPULSION; THE REPORT OF THE TRIAL COMMITTEE WAS SUBMITTED
TO THE MEMBERSHIP AND APPROVED THE FINDINGS OF THE TRIAL COMMITTEE AND
VOTED TO EXPEL MS. MIXON; AND THE AFGE NATIONAL BODY APPROVED
DISCIPLINE OF MS. MIXON BUT MODIFIED THE PENALTY TO A TWO YEAR
SUSPENSION. GENERAL COUNSEL ASSERTS, INTER ALIA, THAT, CONTRARY TO THE
REPRESENTATIONS OF LOCAL 2000, THE WRITTEN CHARGES WERE NOT SERVED ON
MS. MIXON UNTIL AFTER THE INVESTIGATIVE COMMITTEE HAD MADE ITS REPORT TO
THE MEMBERSHIP; THAT THE 43RD CHARGE /11/ WAS NOT TIMELY SERVED ON MS.
MIXON; THAT MS. MIXON WAS NOT GIVEN REASONABLE TIME TO PREPARE HER
DEFENSE; THAT THE TRIAL COMMITTEE WAS NOT CONSTITUTED IN ACCORDANCE
WITH ITS CONSTITUTION IN THAT IT WAS NEITHER THE EXECUTIVE BOARD OF THE
LOCAL NOR ELECTED BY THE MEMBERSHIP; AND THAT MS. MIXON WAS NOT
AFFORDED A FULL AND FAIR HEARING. WITHOUT DOUBT, SUCH ASSERTIONS RAISE
SERIOUS QUESTIONS OF RESPONDENT'S COMPLIANCE WITH STANDARDS OF CONDUCT
AS SET FORTH IN SEC. 20. NECESSARILY, ENFORCEMENT OF DISCIPLINE FOR
INTERNAL UNION MATTERS UNDER SEC. 16(C) "TO THE EXTENT CONSISTENT WITH
THE PROVISIONS OF THIS CHAPTER" MEANS COMPLIANCE WITH SEC. 20; BUT
"COMPLAINTS OF VIOLATIONS" OF SEC. 20 "SHALL BE FILED WITH THE ASSISTANT
SECRETARY" (SEC. 20(D)).
GENERAL COUNSEL FURTHER ASSERTS, OF COURSE, THAT CHARGES 4, 6, 12 AND
16 CONCERNED CHARGES AGAINST MS. MIXON WITH REGARD TO CONDUCT INVOLVING
MS. WHITAKER AND MS. MCDONALD WHICH, AS TO MEMBERS WHITAKER AND
MCDONALD, WAS LITIGATED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2000, SUPRA. RECOGNIZING THAT IT WAS DETERMINED IN THAT
DECISION THAT:
A. LOCAL 2000 VIOLATED SEC. 19(C) OF EXECUTIVE ORDER 11491, AS
AMENDED, ON NOVEMBER 13,
1978, BY EJECTING SALLIE WHITAKER FROM A UNION MEETING, THERE BEING
NO EVIDENCE THAT HER
EJECTION WAS FOR DISCIPLINARY REASONS PERMISSIBLE UNDER THE ORDER;
THAT WHITAKER HAD NOT BEEN
CHARGED FOR ANY ALLEGED MISCONDUCT; AND THERE WAS NO EVIDENCE THAT
THE EJECTION WAS DISCIPLINE
IN ACCORDANCE WITH PROCEDURES UNDER RESPONDENT'S CONSTITUTION OR
BY-LAWS. /12/
B. RESPONDENT'S FEBRUARY 6, 1979, LETTER TO WHITAKER AND MCDONALD
VIOLATED SEC. 16(C) OF
THE STATUTE BY DENYING MEMBERSHIP BY ERRONEOUSLY STATING THAT THEY
HAD NOT BEEN MEMBERS IN
GOOD STANDING SINCE MARCH 1978 AND JULY 1978, RESPECTIVELY; AND BY
STATING THAT IF THEY WANTED
TO BECOME MEMBERS THEY WOULD HAVE TO REAPPLY AND BE VOTED ON BY THE
MEMBERSHIP, A REQUIREMENT
WHICH WAS NOT UNIFORMLY REQUIRED OF DIRECT DUES PAYING MEMBERS WITH
DUES IN ARREARS.
C. RESPONDENT VIOLATED 16(B)(1) OF THE STATUTE BY THREAT OF
UNSPECIFIED CHARGES IF
WHITAKER AND/OR MCDONALD ATTEMPTED TO PAY DUES AND RETAIN MEMBERSHIP
OR REAPPLY FOR
MEMBERSHIP.
NEVERTHELESS, I DO NOT FIND THAT CHARGES 4, 6, 12 OR 16 AGAINST MS.
MIXON WERE THEREBY RENDERED IMPROPER. CHARGE 6 ALLEGED THAT MS. MIXON
IGNORED AND REFUSED TO FOLLOW DIRECTIONS OF THE MEMBERSHIP AND THE
PRESIDENT TO REFUND DUES ILLEGALLY ACCEPTED BY HER FROM WHITAKER AND
MCDONALD AND ATTEMPTING TO COVER UP WHICH SHE HAD DONE. WHOLLY APART
FROM THE CONSEQUENCES OF UNION ACTION, IT IS A LEGITIMATE INTERNAL UNION
CONCERN AS TO WHETHER AN OFFICER HAS FOLLOWED THE DIRECTION OF THE
MEMBERSHIP AND THE PRESIDENT AND/OR WHETHER THE OFFICER HAS ATTEMPTED TO
COVER UP THE FAILURE TO DO SO.
CHARGE 12 ALLEGED THAT MS. MIXON WAS INSUBORDINATE AT MEETINGS.
AGAIN, THIS IS AN INTERNAL UNION MATTER.
CHARGE 16 ALLEGED FALSIFICATION OF FINANCIAL RECORDS OF WHITAKER AND
MCDONALD AS TO WHEN DUES PAYMENTS HAD BEEN MADE, REFUSAL TO REFUND DUES
ILLEGALLY PAID AND SCHEMING TO GET MCDONALD AND WHITAKER ON DUES
DEDUCTION WITHOUT APPROVAL OF MEMBERSHIP. AGAIN, THESE ALLEGATIONS
CONCERNED MATTERS OF LEGITIMATE INTERNAL UNION AFFAIRS. A UNION
CERTAINLY HAS THE RIGHT TO INVESTIGATE ALLEGATIONS THAT AN OFFICER HAS
FALSIFIED UNION FINANCIAL RECORDS AND WHETHER AN OFFICER HAS COMPLIED
WITH ITS RULES AND REGULATIONS. THE FACT THAT LOCAL 2000 WAS HELD TO
HAVE VIOLATED SEC. 16(C) AS TO WHITAKER AND MCDONALD DOES NOT AFFECT THE
UNION'S RIGHT TO INQUIRE AS TO AN OFFICER'S PERFORMANCE OF DUTY AS AN
OFFICER NOR DOES THE VIOLATION FOUND AS TO MEMBERS WHITAKER AND MCDONALD
RENDER THE INQUIRY INTO MS. MIXON'S CONDUCT AS AN OFFICER, PURSUANT TO
CHARGE 16, UNLAWFUL.
CHARGE 4 ALLEGED COLLUSION WITH WHITAKER AND MCDONALD CAUSING
DISSENTION AND TROUBLE FOR THE LOCAL 2000 PRESIDENT AND OTHER OFFICIALS
AT THE NOVEMBER 13, 1978, MEETING AND GIVING AID AND ABETMENT TO THEM
AGAINST THE MEMBERSHIP. I AM AWARE THAT JUDGE OLIVER FOUND THAT LOCAL
2000 VIOLATED SEC. 19(C) OF EXECUTIVE ORDER 11491, AS AMENDED, BY
EJECTING WHITAKER FROM THE NOVEMBER 13, 1978, MEETING AND, FROM JUDGE
OLIVER'S DECISION, IT APPEARS THAT THE "AIDING AND ABETTING" BY MS.
MIXON CONSISTED OF HER "STATEMENT . . . THAT WHITAKER WAS A MEMBER IN
GOOD STANDING." NEVERTHELESS, THE INQUIRY CONCERNING MS. MIXON'S CONDUCT
WAS A LEGITIMATE INTERNAL UNION CONCERN. INDEED, FOCUS ON THE STATEMENT
ALONE IS UNREALISTIC. MS. MIXON'S STATEMENT THAT MS. WHITAKER WAS "IN
GOOD STANDING" NECESSARILY RELATED TO CHARGE 16, FOR EXAMPLE, AS TO
WHETHER MS. MIXON HAD FALSIFIED RECORDS, WHICH, IN MY JUDGMENT, WAS A
WHOLLY PROPER INQUIRY.
I FIND ONLY THAT: A) THE CHARGES AGAINST MS. MIXON CONCERNED
LEGITIMATE INTERNAL UNION AFFAIRS; AND B) THE DECISION IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2000, SUPRA, THAT
LOCAL 2000 VIOLATED THE ORDER AND THE STATUTE AS TO MEMBERS WHITAKER AND
MCDONALD, DID NOT RENDER THE CHARGES AGAINST MS. MIXON, WHICH INVOLVED
WHITAKER AND MCDONALD (CHARGES 4, 6, 12 AND 16), IMPROPER OR IN
VIOLATION OF SEC. 19 OF THE EXECUTIVE ORDER OR OF SECS. 16(C) OR
16(B)(8) OF THE STATUTE INASMUCH AS THE CHARGES AGAINST MS. MIXON
CONCERNED HER CONDUCT AS AN OFFICER OF LOCAL 2000 AND SAID INQUIRY WAS A
LEGITIMATE INTERNAL UNION AFFAIR WHOLLY APART FROM THE CONSEQUENCES OF
UNION ACTION AS TO MEMBERS WHITAKER AND MCDONALD.
SEC. 16(C) OF THE STATUTE LEAVES A UNION FREE TO ENFORCE DISCIPLINE
"IN ACCORDANCE WITH PROCEDURES UNDER ITS CONSTITUTION OR BY-LAWS TO THE
EXTENT CONSISTENT WITH THE PROVISIONS OF THIS CHAPTER" WHICH, FOR
REASONS SET FORTH ABOVE, I CONCLUDE MEANS: AY THAT FREEDOM OF
SELF-REGULATION MUST CONCERN LEGITIMATE INTERNAL AFFAIRS; AND B) THAT
"TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF THIS CHAPTER" REFERS TO
SEC. 20, STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS. THE CHARGES
AGAINST MS. MIXON INVOLVED, WHOLLY, MATTERS OF LEGITIMATE INTERNAL UNION
INTEREST. THE DISCIPLINE AGAINST MS. MIXON IS CHALLENGED BECAUSE, IT IS
ALLEGED, LOCAL 2000 DID NOT COMPLY WITH ITS CONSTITUTION AND/OR THAT MS.
MIXON WAS NOT AFFORDED A FULL AND FAIR HEARING, ETC. THE RECORD PLAINLY
SHOWS REASON TO BELIEVE THAT THERE MAY BE SUBSTANTIAL MERIT TO SUCH
ASSERTIONS; BUT SUCH ALLEGATIONS CONCERN SEC. 20 AND SUBSECTION (D)
CONFERS EXCLUSIVE JURISDICTION ON THE ASSISTANT SECRETARY, I.E.,
"COMPLAINTS OF VIOLATIONS OF THIS SECTION SHALL BE FILED WITH THE
ASSISTANT SECRETARY."
HAVING FOUND THAT THE DISCIPLINE OF WILDER M. MIXON INVOLVED
LEGITIMATE INTERNAL UNION AFFAIRS AND THAT ENFORCEMENT OF DISCIPLINE
PURPORTED TO BE IN ACCORDANCE WITH THE CONSTITUTION AND BY-LAWS OF LOCAL
2000, SECTION 20 OF THE STATUTE, 5 U.S.C. 7120, HAS DELEGATED EXCLUSIVE
JURISDICTION TO THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS TO CONSIDER COMPLAINTS OF VIOLATIONS OF SECTION 20.
ACCORDINGLY, AS THE COMPLAINT ALLEGES THAT WILDER M. MIXON WAS DENIED
MEMBERSHIP OTHER THAN "IN ACCORDANCE WITH PROCEDURES UNDER ITS
CONSTITUTION AND BY-LAWS" EXCLUSIVE JURISDICTION UNDER THE STATUTE TO
CONSIDER SUCH ALLEGATIONS HAS BEEN DELEGATED TO THE ASSISTANT SECRETARY
AND SUCH ALLEGATIONS MAY NOT BE LITIGATED UNDER SEC. 16 AS UNFAIR LABOR
PRACTICES. IT IS, THEREFORE, RECOMMENDED, THAT THE COMPLAINT BE
DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 13, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE HEREINAFTER
ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71", E.G.,
SECTION 7116(B)(1) WILL BE REFERRED TO AS "SEC. 16(B)(1);" HOWEVER,
UNLESS OTHERWISE SPECIFICALLY INDICATED ALL SUCH REFERENCES ARE TO
CHAPTER 71 OF THE STATUTE.
/2/ A FURTHER ALLEGATION OF DISCIPLINARY ACTION AGAINST WILDER MIXON
"BECAUSE OF HER PARTICIPATION IN AND ASSISTANCE TO PROCEEDINGS BEFORE
THE . . . AUTHORITY," IN VIOLATION OF SEC. 16(B)(8), WAS WHOLLY WITHOUT
BASIS AND WAS NOT ALLEGED IN THE COMPLAINT.
/3/ THE LETTER ADDRESSED TO MS. MIXON, DATED MARCH 8, 1979, HAS THE
NOTATION AT THE TOP "RRR 97273" WHICH PRESUMABLY MEANT RETURN RECEIPT
REQUESTED NO. 97273, WHICH MS. MIXON TESTIFIED HER INQUIRY AT THE POST
OFFICE INDICATED HAD "NEVER BEEN USED" (TR. 90).
/4/ THE NEXT REGULAR MEETING AFTER THE JUNE 29, 1979, TRIAL WOULD
HAVE BEEN IN JULY; BUT MS. MIXON TESTIFIED THAT THE JULY MEETING WAS
NOT HELD BECAUSE OF AN ALERT AT BARKSDALE. THE REGULAR MEETING IN
AUGUST WAS CANCELLED THE NIGHT OF THE MEETING BY PRESIDENT ADAMS. WHILE
MS. MIXON'S TESTIMONY WOULD INDICATE THAT THE MEETING WAS OPENED AND
THEN DISMISSED, IT SEEMS MORE PROBABLE, AS MS. LUCAS TESTIFIED, THAT THE
MEETING WAS NEVER CALLED TO ORDER, I.E., WAS NEVER OPENED.
/5/ AS NOTED IN RESPONDENT'S ANSWER, THE AFGE NATIONAL EXECUTIVE
COUNCIL'S DECISION WAS TO SUSPEND MS. MIXON FROM MEMBERSHIP FOR TWO
YEARS.
/6/ COUNT 1 "MS. MIXON'S DISRUPTIVE ACTIONS AT UNION MEETINGS" DOES
NOT ON ITS FACE SHOW ANY NECESSARY RELATIONSHIP TO EITHER WHITAKER OR
MCDONALD AND THE "MINUTES OF THE TRIAL" (G.C. EXH. 8) DO NOT SHOW ANY
RELATION OF THIS CHARGE TO EITHER WHITAKER OR MCDONALD.
/7/ "THIS SUBSECTION DOES NOT PRECLUDE ANY LABOR ORGANIZATION FROM
ENFORCING DISCIPLINE IN ACCORDANCE WITH PROCEDURES UNDER ITS
CONSTITUTION OR BY LAWS TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF
THIS CHAPTER." (5 U.S.C. 7116(C)).
/8/ "PROVIDED, THAT THIS PARAGRAPH (IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION OR ITS AGENTS - (1) TO RESTRAIN OR
COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS GUARANTEED IN SECTION
7) SHALL NOT IMPAIR THE RIGHT OF A LABOR ORGANIZATION TO PROSECUTE ITS
OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP
THEREIN" (29 U.S.C. 158(B)(1)(A)).
/9/ 29 C.F.R.PART 208, SUBPART A, INTER ALIA, SEC. 208.2(5)
"SAFEGUARDS AGAINST IMPROPER DISCIPLINARY ACTION;" SUBPART B -
PROCEEDINGS FOR ENFORCING STANDARDS OF CONDUCT, SEC. 208.50 ET SEQ.; CF.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206, AFL-CIO AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 1 FLRA NO.
77(1979).
/10/ EXECUTIVE ORDER 11491, AS AMENDED, DID NOT CONTAIN THE LANGUAGE
OF SEC. 16(C) OF THE STATUTE THAT,
"FOR THE PURPOSE OF THIS CHAPTER IT SHALL BE AN UNFAIR LABOR PRACTICE
. . . ."
RATHER, SECTION 19(C) OF THE EXECUTIVE ORDER PROVIDED,
"(C) A LABOR ORGANIZATION WHICH IS ACCORDED EXCLUSIVE RECOGNITION
SHALL NOT DENY MEMBERSHIP
TO ANY EMPLOYEE IN THE APPROPRIATE UNIT EXCEPT FOR FAILURE TO MEET
REASONABLE OCCUPATIONAL
STANDARDS UNIFORMLY REQUIRED FOR ADMISSION, OR FOR FAILURE TO TENDER
INITIATION FEES AND DUES
UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND RETAINING
MEMBERSHIP. THIS PARAGRAPH DOES
NOT PRECLUDE A LABOR ORGANIZATION FROM ENFORCING DISCIPLINE IN
ACCORDANCE WITH PROCEDURES
UNDER ITS CONSTITUTION OR BY-LAWS WHICH CONFORM TO THE REQUIREMENTS
OF THIS ORDER."
IT IS UNNECESSARY TO CONSIDER THE EFFECT, IF ANY, OF THE DIFFERENCE
IN LANGUAGE OF SEC. 19(C) OF THE ORDER AND SEC. 16(C) OF THE STATUTE.
HEREIN, THE MORE DEFINITIVE LANGUAGE OF THE STATUTE WILL BE CONSIDERED
TO APPLY; HOWEVER, UNDER THE STATUTE WHICH GOVERNS THE JURISDICTION OF
THE AUTHORITY, JURISDICTION OVER COMPLAINTS OF VIOLATIONS OF SEC. 20,
STANDARDS OF CONDUCT, WAS NOT TRANSFERRED TO THE AUTHORITY BUT WAS
DELEGATED TO THE EXCLUSIVE JURISDICTION OF THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS. ACCORDINGLY, WHILE THE DISCIPLINE
INVOLVED HEREIN OCCURRED IN 1978 UNDER THE EXECUTIVE ORDER, THE
JURISDICTION OF THE AUTHORITY IS GOVERNED BY THE PROVISIONS OF THE
STATUTE NOTWITHSTANDING THAT UNDER THE EXECUTIVE ORDER THE ASSISTANT
SECRETARY HAD JURISDICTION OVER BOTH UNFAIR LABOR PRACTICES (SEC. 19)
AND COMPLAINTS OF VIOLATIONS OF STANDARDS OF CONDUCT (SEC. 18).
/11/ BECAUSE COMPLAINTS OF VIOLATION OF STANDARDS OF CONDUCT ARE
MATTERS SPECIFICALLY DELEGATED BY SEC. 20 TO THE ASSISTANT SECRETARY, IT
WOULD BE IMPROPER TO DECIDE ISSUES RELATING TO RESPONDENT'S
CONSTITUTION. NEVERTHELESS, IT IS APPROPRIATE TO NOTE THAT GENERAL
COUNSEL'S ASSERTION THAT EXPULSION IS AUTHORIZED ONLY FOR VIOLATION OF
SEC. 2(A) OR (B) OF ART. XIV, IS, AT BEST, OPEN TO SERIOUS QUESTION IN
THAT SUCH CONSTRUCTION WHOLLY IGNORES THE PROVISIONS OF SEC. 7 OF ART.
XIV. AT LEAST LITERALLY, THE PENALTY FOR VIOLATION OF SECTIONS 2(A) OR
(B) IS MANDATORY EXPULSION, "PENALTY FOR CONVICTION UNDER THIS
SUBPARAGRAPH SHALL BE EXPULSION;" WHEREAS THE PENALTY PURSUANT TO
SECTION 7 FOR ANY OTHER VIOLATION IS DISCRETIONARY, "THE LOCAL MAY BY A
MAJORITY VOTE OF ITS MEMBERS VOTING FINE, SUSPEND OR EXPEL THE ACCUSED
FROM ITS MEMBERSHIP OR SUSPEND OR REMOVE HIM FROM ANY OFFICE HE MAY
HOLD."
/12/ JUDGE OLIVER MADE NO FINDING THAT THE EJECTION OF MS. MCDONALD
FROM THE SAME MEETING WAS IMPROPER INASMUCH AS MS. MCDONALD, WHO
PROTESTED WHITAKER'S EJECTION, ASSERTEDLY WAS EJECTED BECAUSE SHE HAD
BECOME "UNRULY."