---

28 FLRA No. 118

FORT BRAGG ASSOCIATION
OF EDUCATORS, NATIONAL
EDUCATION ASSOCIATION,
FORT BRAGG, NORTH CAROLINA

               Respondent

          and

FORT BRAGG DEPARTMENT OF
DEFENSE DEPENDENTS SCHOOLS,
FORT BRAGG, NORTH CAROLINA

               Charging Party

Case No. 4-CO-60004

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent (Union) to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions. At the request of the Authority, supplemental submissions were filed by the General Counsel, the Respondent, and the Charging Party.

The complaint alleges that the Respondent violated section 7116(b)(1) of the Federal Service Labor - Management Relations Statute (the Statute) when it interfered with, restrained, and coerced employees in the exercise of their rights under section 7102. The bases of the complaint are the Respondent's alleged indications to members of the bargaining unit it represents that dues-paying members would receive preferential treatment in a lawsuit brought by another labor organization, the Overseas Education Association (OEA).

For the reasons stated below, we find that the Respondent did not violate the Statute, and we will order that the complaint be dismissed. [PAGE]

II. Background

A. Facts as Found by the Administrative Law Judge

Following is a summary of the facts, which are detailed in the Administrative Law Judge's Decision.

Prior to September 1985, the Overseas Education Association decided to file a lawsuit concerning the status as Federal employees of teachers in the Department of the Army's Section 6 school system, including those represented by the Respondent. The purpose of the lawsuit was to have all Section 6 personnel who were employed by the Department of the Army declared Federal employees, thereby guaranteeing them Federal retirement, tenure, grievance, and reduction-in-force benefits.

In September 1985, Ronald Austin, the Executive Director and General Counsel of OEA, addressed a general meeting of teachers at Fort Bragg. Mr. Austin informed approximately 60 to 70 teachers present at the meeting that OEA's plan was to include Respondent's dues-paying members in the lawsuit on a "non-fee" basis; if there were nonmembers who wanted to join the suit, "some financial arrangement would have to be made where they would have to pay some kind of pro-rated or share of the cost." ALJ Decision at 4.

In October 1985, the Respondent distributed a newsletter to all bargaining unit employees. In the portion of the news-letter entitled "Message from the President," the following was stated, in pertinent part (ALJ Decision at 4-5):

In accordance with our fee for service arrangement, OEA will list all our Dues - Paying Members as plaintiffs so that if the court decision is in our favor, the decision will be retroactive to the date all named members were employed. For those people who are not Dues - Paying Members, they will be federal employees only from the date of the court decision. These Non - Paying Members of the Union would have to hire their own attorney to file suit to have their federal employment declared retroactive to the date they began working. Thus, people who have been Non - Dues Paying Members, unless they hire their own attorney and file suit could stand to lose all time in grade presently applied to retirement. It is definitely in your best interest to be a Dues - Paying Member of FBAE (Fort Bragg Association of Educators). There is still time to join, you have until December 15, 1985. . . .(Emphasis in newsletter.) [ v28 p2 ]

On November 4, 1985, the Union's President conducted a general membership meeting which was attended by approximately 30 employees. The employees were informed by the President that nonmembers who desired to be included in the lawsuit would be required to pay a fee for their inclusion. The President told the employees that they should contact Mr. Nguyen, an attorney with OEA, to determine the amount of the fee. The President was later informed that the fee for inclusion of each nonmember would be $500.

The unfair labor practice complaint is based on the information contained in the Union's newsletter and the information conveyed at the November 4 meeting.

B. The Lawsuit and Its Disposition

Although the Administrative Law Judge's decision references the fact that a lawsuit was filed by OEA, the record did not contain a copy of the complaint which was actually filed. The record also did not contain any reference to the disposition of the lawsuit. Accordingly, the Authority requested the parties to file supplemental submissions containing a copy of the complaint filed in the District Court, and to advise the Authority of the status of the lawsuit and any effect of the status on the parties' positions in this unfair labor practice case. The supplemental submissions reveal the following:

The lawsuit was filed on December 9, 1985, in the United States District Court for the Southern District of New York. Hess v. Marsh, 85 Civ. 9608 (MGC). The complaint requested declaratory and injunctive relief and included a petition for a Writ of Mandamus. It was brought by six named individuals: three civilian teachers employed by the Department of the Army at the West Point Elementary School and three civilian teachers employed by the Department of the Army at elementary schools at Fort Stewart.

The complaint states that the action also was brought by OEA, which was "suing in its representational and associational capacity on behalf of itself and the interests of approximately two hundred of its members who are employed as educators by the United States Department of the Army at the West Point Elementary School and at the Department of the Army schools at Fort Stewart, Georgia." Complaint, paragraph 11. The complaint requested, among other things, that (1) the defendants be enjoined from "requiring the named individual plaintiffs and the other OEA members who teach at the West Point and Fort Stewart" schools to execute personal service contracts as conditions of their employment and [ v28 p3 ]

(2) defendants be ordered to "issue to each named individual plaintiff and the other OEA members who teach at the West Point and Fort Stewart" schools a Standard Form 50 bearing the original date of their employment with the Department of the Army. Complaint, Request for Relief, paragraphs 2 and 3.

A Stipulation of Settlement and Dismissal was filed by the parties in Hess v. Marsh with the U.S. District Court for the Southern District of New York on January 16, 1987. The stipulation provides, among other things, that the plaintiffs agreed to "dismiss the complaint with prejudice . . . ," and that the defendants agreed to "appoint each of the named individual plaintiffs as a federal employee" and to issue to each individual so appointed a Standard Form 50 with appropriate notations "for purposes of establishing title to a civil service annuity and computing the annuity . . . ." Stipulation, paragraphs 1 and 3. Subsequently, on March 16, 1987, the Chief, U.S. Army Civilian Personnel Center issued a memorandum entitled "Settlement Agreement - Hess v. Marsh" to various officials, including the Commander of the U.S. Army Airborne Corps and Fort Bragg. That memorandum detailed the procedures for completing the Standard Form 50, stating that certain information "must be noted on all SF-50s issued for currently employed Section 6 personnel . . . ."

The parties' arguments concerning the effect of the status of the lawsuit on their positions in this case are discussed in section IV of this decision.

III. The Administrative Law Judge's Decision

The Judge found that when the Respondent informed bargaining unit employees in its newsletter that only dues-paying members would be represented, it "plainly violated" its obligation under section 7114(a)(1) of the Statute to represent "the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." ALJ Decision at 11. The Judge reasoned that the lawsuit "obviously related to the fruits of collective bargaining and the Union may not provide such a benefit exclusively for Union members." ALJ Decision at 11. The Judge also found that by informing employees at the November 4 meeting that nonmembers would be required to pay a fee to be included in the lawsuit, the Respondent unlawfully discriminated between members and nonmembers. In finding that the Union violated the Statute, the Judge relied on National Treasury Employees Union, 10 FLRA 519 (1982), enf'd, 721 F.2d 1402 (D.C. Cir. 1983); American Federation of Government Employees, AFL - CIO, 17 FLRA 446 (1985), petition for review filed sub nom. AFGE v. FLRA, No. 85-1333 (D.C. [ v28 p4 ] Cir. June 5, 1985); and American Federation of Government Employees, AFL - CIO, Local 916, 18 FLRA 5 (1985), rev'd sub nom. AFGE, Local 916 v. FLRA, 812 F.2d 1326 (10th Cir. 1987).

The Judge rejected the Respondent's argument that it did not violate the Statute because the conditions for non-member participation in the lawsuit were set by OEA, an organization with which it is not affiliated and with which it has no fee arrangement. He stated that while there was no "direct affiliation between the Union and OEA in the sense of membership, there was, most definitely a relationship in the sense of services." ALJ Decision at 8. As a remedy, the Judge recommended that the Authority direct the Respondent to cease and desist from "(a)ffording different standards of employee representation . . . solely on the basis of whether such employees are members" of the Union. He also recommended that the Respondent be directed to represent all employees in its bargaining unit "without discrimination and without regard to (Union) membership . . . ."

IV. Positions of the Parties

The Respondent filed exceptions to the Judge's decision, contending that the Judge erred in defining the duty of fair representation broadly. The Respondent relies on the decision of the District of Columbia Circuit in National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), which issued several days after the Administrative Law Judge's decision now before us. According to the Respondent, the court fully analyzed the scope of a union's duty of fair representation under the Statute and concluded that the scope of this duty is confined to the scope of the union's authority as exclusive representative. The Respondent asserts that the narrower standard should be applied in this case, and that under this standard, it was not obligated to represent non-member employees in the lawsuit involved in this case. Accordingly, the Respondent contends that its conduct did not constitute an unfair labor practice.

The General Counsel opposes the Respondent's exceptions. The General Counsel contends that the decision of the District of Columbia Circuit is in error, and that previous Authority and court decisions are controlling. On the basis of those decisions, the General Counsel maintains that a union has a duty to represent unit members fairly and without discrimination on the basis of union membership when it undertakes representation on any matter affecting conditions of employment. The General Counsel therefore [ v28 p5 ] contends that the Administrative Law Judge properly found that the Respondent's conduct constituted an unfair labor practice.

As noted above, the General Counsel, the Respondent, and the Charging Party filed supplemental submissions at the Authority's request. The Respondent maintains that the unfair labor practice charge should be dismissed because the settlement of the lawsuit benefits "all Army Section Six personnel, whether or not a named plaintiff in that action, and regardless of union membership." Union Supplemental Submission at 2. The General Counsel and the Charging Party assert that the current status of the lawsuit is irrelevant to the disposition of the case.

V. Relevant Case Law

In resolving the unfair labor practice complaint in this case, it is helpful to review relevant case law of the Authority and the courts concerning the scope of a union's duty of fair representation under section 7114(a)(1) of the Statute.

A. Authority Decisions

As stated above, the Judge relied on three Authority decisions. In the first, National Treasury Employees Union, 10 FLRA 519 (1982), enf'd, 721 F.2d 1402 (D.C. Cir. 1983) (hereinafter "NTEU I"), the Authority found that the union failed to meet its obligation under section 7114(a)(1) of the Statute when it (1) posted at various locations copies of a memorandum stating that it would not furnish attorneys to represent nonmembers although it would provide attorney representation to members; and (2) implemented that policy by denying attorney representation to nonmembers. The union's policy did not distinguish between representation in matters within its authority as exclusive representative and matters which were not within that authority, and the Authority's decision referenced no such distinction.

The second Authority case relied on by the Judge is American Federation of Government Employees, AFL - CIO, 17 FLRA 446 (1985), petition for review filed sub nom. AFGE v. FLRA, No. 85-1333 (D.C. Cir. June 5, 1985) (hereinafter "AFGE"). In that case, the complaint alleged that the union breached its duty of fair representation when it charged non-member employees disparate fees to participate in a class action lawsuit under the Back Pay Act. The Administrative Law Judge recommended that the complaint be dismissed, stating that the duty of fair representation attaches only in "those [ v28 p6 ] proceedings that are in the sole control of the union by virtue of its certification . . . ." Id. at 459. The Authority disagreed, stating that when a union represents unit employees in "any matter which affects their conditions of employment," it has the duty to represent them fairly and without regard to union membership. Id. at 447. The Authority cited its previous decision in NTEU I and described the holding of that decision to be that the furnishing of attorney representation "on a non-discriminatory basis in removal actions, both within the agency procedures as well as before the Merit Systems Protection Board" (MSPB) is encompassed within a union's duty under section 7114(a)(1) of the Statute. Id.

The Judge also relied on the Authority's decision in American Federation of Government Employees, AFL - CIO, Local 916, 18 FLRA 5 (1985), rev'd sub nom. AFGE, Local 916 v. FLRA, 812 F.2d 1326 (10th Cir. 1987) (hereinafter "AFGE, Local 916"), where the Authority found that the union's "policy of refusing to provide representation for nonmembers in proceedings before the (MSPB) while providing such representation for members" violated the Statute. Id. The Authority cited both the NTEU I and the AFGE decisions as support for its conclusion. The court's decision in this case is discussed in the next section of this analysis.

Although the Judge did not rely on the Authority's decision in National Treasury Employees Union and National Treasury Employees Union Chapter 121, 16 FLRA 717 (1984), rev'd sub nom. NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (hereinafter "NTEU II"), it is also relevant to this discussion. The Authority stated that the facts and positions of the parties in NTEU II were "substantially identical" to those in the earlier NTEU I decision. 16 FLRA at 718. The Authority found that the union's policy of posting and implementing a policy of denying attorney representation to non-member employees while providing such representation to members involved in removal actions at the MSPB violated the Statute. The court's decision in NTEU II is also discussed in the next section of the analysis.

The parties' exceptions to the Judge's decision in the case now before us center on the court's decision in NTEU II.

B. Court Decisions

The Authority's decision in NTEU I was affirmed by the District of Columbia Circuit. NTEU v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983). The court held that the duty of fair representation applied "whenever a union is representing [ v28 p7 ] bargaining unit employees either in contract negotiations or in enforcement of the resulting collective bargaining agreement." Id. at 1406. The court also characterized the attorney representation at issue in that case as pertaining "directly to enforcement of the fruits of collective bargaining." Id. at 1407.

The Authority's decision in NTEU II was reversed by the District of Columbia Circuit. NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986). First, the court noted that the Administrative Law Judge had "assumed without deciding that the NTEU had no duty to represent any employee before the MSPB, but held that if the NTEU provided representation to union members, it must provide equal representation to nonmembers." Id. at 1167. Secondly, the court reviewed the history of the doctrine of the duty of fair representation in the private sector. It stated that the doctrine was first formulated in Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944), where the Supreme Court "repeatedly rooted that duty in the powers conferred upon the union by statute, the powers belonging to the union as exclusive representative." 800 F.2d at 1169. The court stated that the MSPB procedures involved in the case before it were not controlled by the union and that the affected employee had "actively pursued his statutory appeal rights and won." Id. at 1170. The court concluded that "(i)f this were a private sector case, it would seem clear that the union has not violated its duty of fair representation because the rationale that gives rise to that duty does not apply here." Id.

The court rejected the Authority's argument that the Statute enforces a duty of nondiscrimination which is broader than that of private sector fair representation, a duty that extends to all matters affecting conditions of employment. The court stated that "Congress adopted for government employee unions the private sector duty of fair representation." Id. at 1171. Finally, the court considered and rejected the Authority's argument that the court's previous decision in NTEU I was dispositive of the case. The court stated that its NTEU I decision "clearly proceeds on a rationale that supports the position here of the NTEU, not that of the FLRA." Id. at 1172. It emphasized that the NTEU I decision concerned representation in contract negotiations or the enforcement of a collective bargaining agreement.

The Authority's decision in AFGE, Local 916 was reversed by the U.S. Court of Appeals for the Tenth Circuit. 812 F.2d 1326 (10th Cir. 1987). Citing the result and reasoning of the court's decision in NTEU II, the court stated that "'fair representation' means that when a union [ v28 p8 ] uses a power which it alone can wield, it must do so for the benefit of all employees within its bargaining unit." Id. at 1328. It noted that if an employee is entitled to choose a appeal procedure, the employee is entitled to choose a representative, and that a union has no power to "preclude that right or to insist upon appearing for the employee if the employee elects to pursue a statutory appeal procedure." Id. The court found that if "the union does not have an exclusive power that can be used contrary to the interests of the employee, there is no basis for requiring the union to furnish its services." Id. Accordingly, the court concluded that in this context, "the fundamental reason for applying the doctrine of fair representation does not exist." Id.

VI. Analysis and Conclusions

A. Analytical Framework in This and Future Cases

We have reexamined the scope of the duty of fair representation under the Statute. We now conclude, in agreement with the court in NTEU II, that "Congress adopted for government employee unions the private sector duty of fair representation." 800 F.2d at 1171. In our view, the manner in which the duty is expressed in section 7114(a)(1) closely parallels the judicial formulation of the duty in the private sector. Similarly, the function and significance of the duty in the labor-management relations system created by the Statute parallels that of the duty in private sector labor-management relations. Moreover, there is no indication in the legislative history of the Statute that Congress intended the scope of the duty under section 7114(a)(1) to differ from that in the private sector. Compare, for example, the situation involving employee rights to representation under section 7114(a)(2)(B), where Congress "specifically intend(ed) that future court decisions interpreting the right in the private sector will not necessarily be determinative for the Federal sector." H.R. Rep. No. 1717, 95th Cong. 2d Sess. 156 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor - Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, at 824 (1979). Accordingly, we agree with the court in AFGE, Local 916 that "the roots of the duty of fair representation should coincide for both public and private labor unions." 812 F.2d at 1327. It is necessary, therefore, to discuss the origins of the duty in the private sector.

In Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202 (1944), the court held that under section 2 of the [ v28 p9 ] Railway Labor Act, 45 U.S.C. 142, a bargaining representative "has the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them." That section of the Railway Labor Act provides in pertinent part that "(t)he majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class . . . ." The Court noted that unit members "cannot bargain on behalf of themselves as to matters which are properly the subject of collective bargaining . . . ," and concluded that "so long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty, which is inseparable from the power of representation conferred upon it, to represent the entire membership of the craft." Id. at 200, 204.

Subsequently, the Court held that the same duty which was implicit in the Railway Labor Act was required under the National Labor Relations Act (NLRA). Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Syres v. Oil Workers International Union, Local 23, 350 U.S. 892 (1956), reversing and remanding pre curiam 223 F.2d 739 (5th Cir. 1955). In discussing the basis for the duty under the National Labor Relations Act, the Court has stated that the "undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation." Humphrey v. Moore, 375 U.S. 335, 342 (1964).

The linkage between a union's rights to act as exclusive representative and its duty of fair representation has been emphasized by the Court. In Vaca v. Sipes, 386 U.S. 171, 182 (1967), the Court stated the following:

The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit. This Court recognized in Steele that the congressional grant of power to a union to act as exclusive collective bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law. (Citations omitted.) [ v28 p10 ] It is clear, therefore, that the duty of fair representation in the private sector is an obligation which stems from a labor union's statutory rights as an exclusive representative of bargaining unit employees.

As stated above, we conclude that section 7114(a)(1) is intended by Congress to incorporate the private sector duty. As a result, we will analyze a union's responsibilities under section 7114(a)(1) in this and future cases in the context of whether or not the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative. Where the union is acting as the exclusive representative of its unit members, we will continue to require that its activities be undertaken without discrimination and without regard to union membership under section 7114(a)(1). We will not, however, extend those statutory obligations to situations where the union is not acting as the exclusive representative, nor will we continue to decide these cases based on whether or not the union's activities relate to conditions of employment of unit employees. Previous Authority decisions to the contrary will no longer be followed.

B. Application of the Standard in This Case

The information provided by the Respondent to its unit members, which forms the basis for the complaint in this case, related to the conditions under which members and nonmembers would be represented by OEA in a lawsuit concerning their status as Federal employees. There is no indication in the record that the representation of these employees was grounded in any way in the Respondent's role as exclusive representative. Indeed, like the situation addressed by the court in NTEU III where the affected employee hired private counsel and ultimately prevailed in his appeal to the MSPB, nonmembers in this case could undoubtedly have retained counsel and filed a similar lawsuit. Further, nothing in the record indicates that the parties' collective bargaining agreement addressed or defined the employees' status as Federal employees. In this regard, we reject as unsubstantiated the Administrative Law Judge's conclusion that the lawsuit related to "enforcement of the fruits of collective bargaining . . . ." ALJ Decision at 11.

In these circumstances, we conclude that the Respondent did not violate the Statute when it communicated to unit members that representation in the lawsuit would differ depending upon union membership. We do not decide whether the nature of the communications, specifically their [ v28 p11 ] accuracy, could be the bases for violations of the Statute. That matter was not decided by the Judge and was not raised in exceptions.

ORDER

The complaint in this case is dismissed.

Issued, Washington, D.C., September 4, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p12 ]

FORT BRAGG ASSOCIATION
OF EDUCATORS, NATIONAL
EDUCATION ASSOCIATION,
FORT BRAGG, NORTH CAROLINA

              Respondent

    and

FORT BRAGG DEPARTMENT OF
DEFENSE DEPENDENTS SCHOOLS,
FORT BRAGG, NORTH CAROLINA

              Charging Party

Case No. 4-CO-60004

Hung T. Nguyen, Esquire
    For the Respondent

Mr. Dale Glendening
    For the Charging Party

Regina Kane, Esquire
    For the General Counsel

Before: WILLIAM B. DEVANEY
         Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., 1 and the [PAGE] Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., concerns whether Fort Bragg Association of Educators, National Education Association (hereinafter referred to as "Union") by its newsletter and/or at a general membership meeting, open to all members of the bargaining unit, indicated that dues-paying members of the Union would received preferential treatment in a lawsuit brought by the Overseas Education Association, (hereinafter referred to as OEA), another labor organization, in violation of 16(b)(1) of the Statute. This matter was initiated by a charge filed on November 12, 1985 (G.C. Exh. 1(a)) which alleged violation of 16(b)(1) and (8) of the Statute. The Complaint and Notice of Hearing issued on January 31, 1986 (G.C. Exh. 1(c)); alleged violation of 16(a))(1) only; and set the hearing for February 25, 1986. By Order dated February 3, 1986 (G.C. Exh. 1(g)), the hearing was rescheduled for April 9, 1986, pursuant to which a hearing was duly held on April 9, 1986, at Fort Bragg, North Carolina, before the undersigned.

All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues presented, to examine and cross-examine witnesses, and were afforded the opportunity to present oral argument. At the conclusion of the hearing May 9, 1986, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, upon timely motion of the General Counsel, with which the other parties joined, for good cause shown, to June 9, 1986. General Counsel and the Union each timely filed a brief, received on, or before, June 9, 1986, which have been car fully considered. Upon the basis of the entire records 2 including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

Findings

1. The Union is the exclusive bargaining representative for a unit which includes certain employees of eight schools of the Fort Bragg Department of Defense Dependents Schools, located at Fort Bragg, North Carolina (Albritton Middle School and Elementary, Holbrook, Browley, Murray, Pope, [ v28 p2 ] Butner, Irwin and McNair (Tr. 16) (G.C. Exh. 1(a), Par. 4, 1(d), Par. 4; (Tr. 16)). There are 275 teachers in the bargaining unit of whom 186 are members of the Union (Tr. 18), The Union is a paper affiliate of the North Carolina Association of Educators (NCAE) and Union members' dues are paid directly to NCAE (Tr. 35). The National Education Association (NEA) is an umbrella organization composed of numerous affiliates, such as NCAE and the Overseas Education Association (OEA) (Tr. 70). There is no contractual arrangement or formal affiliation between the Union and OEA (Tr. 72), and, although a meeting of OEA, NCAE, and the Union was held regarding a fee for service arrangement (G.C. Exh. 3; Tr. 78), no fee for service arrangement had been finalized (Tr. 21, 78, 80).

2. Mr. Ronald R. Austin, Executive Director and General Counsel of OEA since November, 1978 (Tr. 69), testified that when the West Point Dependent Schools became members of OEA it was discovered that while they, like the Fort Bragg Schools, were Section 6 schools fully funded by the federal government and the teachers are federal employees, because Section 6 teachers are hired on a yearly basis with personal service contracts they do have have RIF rights, that retirement rights, provided for by Army regulations, would not be honored by OPM, etc., and accordingly, that OEA, prior to the summer of 1985, had decided to seek relief in the United States District Court.

3. In September, 1985, Mr. Austin was invited by Ms. Elizabeth Kay Stuertz, President of the Union, to address a general meeting of teachers at Fort Bragg (Tr. 75). Mr. Austin testified that there were 60 or 70 people present at the meeting held on September 9, 1985 (Tr. 63), and that he,

" . . . outlined to them in general terms the fact that we were proceeding with the suit and that at this particular time, we are -- our plan at that time was to have named Plaintiffs in the suit 3 ; and I told them that we would be willing to bring into this suit any union members [ v28 p3 ] that we found in Section 6 schools on a non-fee basis, that we would, since we were going in anyway that we would do that and that if there were any non-members who wanted to join the suit, some financial arrangement would have to be made where they would have to pay some kind of pro-rated or share of the cost.

"Q. At the September meeting, did you, do you recall having ever said that non-union members would not be allowed to join the lawsuit?

"A. No. Non-union members would not be allowed to join without paying a fee. it was a question of who would get it for free and the, if the person were a NEA member then we were willing to assume the costs . . . ." (Tr. 76).

4. In October, 1985, the Union's newsletter, entitled "bragg happenings" (G.C. Exh. 3), was distributed to all bargaining unit employees via the individual employees' school mailboxes (Tr. 19-21). This newsletter was co-authored by Ms. Stuertz and by Ms. Barbara Jones, Union Vice President/President Elect (Tr. 20, 88) and stated in the portion entitled, "Message From the President", in part, as follows:

" - Meeting held with OEA/NCAE and FBAE regarding fee for service arrangement. We will continue with our present arrangement receiving legal services from OEA with a retroactive payment pending a final decision, following discussions with NEA.

" - OEA is filing suit to have all Section 6 personnel under the Department of the Army declared federal employees. This will guarantee Tenure, Grievance and RIF, as well as benefits such as retirement. In accordance with our fee for service arrangement, OEA will list all our Dues - Paying Members as plaintiffs so that if the court decision is in our favor, the decision will be retroactive to the date all named members were [ v28 p4 ] employed. For those people who are not Dues - Paying Members, they will be federal employees only from the date of the court decision. These Non - Paying Members of the union would have to hire their own attorney to file suit to have their federal employment declared retroactive to the date they began working. Thus, people who have been Non - Dues Paying Members, unless they hire their own attorney and file suit could stand to lose all previous time in grade presently applied to retirement. It is definitely in your best interest to be a Dues - Paying Member of FBAE. There is still time to join, you have until December 15, 1985. For those who say they can't afford it - the truth is you can not afford not to join. Payroll deductions make it easy on the budget. (G.C. Exh. 3) (Emphasis in original).

5. Ms. Jones testified that she had obtained the information for the newsletter from OEA, although Mr. Austin testified that he had, "nothing to do with the document" (Tr. 77). Nevertheless, the newsletter accurately reflected what Mr. Austin stated at the meeting with one exception 4 : the newsletter failed to state that he said, "Non-union members would not be allowed to join without paying a fee." Mr. Austin conceded that he said, " . . . the Army prospectively would probably change the rule for everyone . . . (but) there was some risk that they may have to get their own attorney if they are not a named plaintiff to correct that period of time from the time that the Court ruled favorably to us back to the time that they were first hired . . . ." (Tr. 79). [ v28 p5 ]

6. Ms. Mary Blanton, a teacher at Albritton middle School (Tr. 40), testified that she joined the Union in November, 1985, after reading the October, 1985, "bragg happenings." (Tr. 40, 41). Ms. Blanton testified that she joined the Union because the newsletter article on the lawsuit gave the impression that by virtue of the arrangement between the Union and OEA she was far better off joining the Union for $180.00 in dues as opposed to hiring her own attorney or losing the retroactive benefits of the lawsuit (Tr. 42-43). Ms. Judith Osborne, a teacher at Holbrook School (Tr. 44) and Ms. Faye Byrd, a teacher at Albritton Middle School (Tr. 49), each testified that they read the article concerning the lawsuit in the October, 1985, "bragg happenings", which they discerned as an attempt to coerce them to join the Union (Tr. 46, 51). Ms. Osborne testified that, ". . . my impression was that it was an attempt, first of all, to treat dues paying members differently than those of us who were non-dues-paying members and also that it was an attempt to coerce those of us who were not union members into joining the union." (Tr. 46). Ms. Byrd testified, "I was very concerned; I was upset about it. I felt, I was initially concerned by what it said about my retirement; I had 19 years in the system; and I felt very angry because of the paragraph; and 1 thought that it was very intimidating; I thought that it was an effort to get people to join the Association." (Tr. 51). 5

7. On November 4, 1985, Ms. Stuertz conducted the next general membership meeting following the issuance of the October, 1985 "bragg happenings" (Tr. 23). This meeting was held at Albritton Middle School and about 30 employees attended (Tr. 23-24). Ms. Stuertz said she thought some "non-dues paying members" were present (Tr. 24). At this [ v28 p6 ] meeting there was a discussion concerning the OEA lawsuit and the October, 1985, "bragg happenings". Ms. Stuertz testified that, at this time, she explained that non-members of the Union who desired inclusion in the suit would be required to pay a fee and that they should contact Mr. Nguyen to ascertain how much OEA would charge them (Tr. 24-25). Ms. Stuertz did not mention the amount of the fee as she ". . . didn't know the amount" (Tr. 25). Ms. Stuertz testified that she was later told by Mr. Nguyen that the fee for inclusion of each non-union employee would be $500.00 (Tr. 31).

Conclusions

There is no dispute that in September, 1985, the Union invited Mr. Austin, Executive Director and General Counsel of OEA, to address a general meeting of teachers at Fort Bragg; that Mr. Austin did address some 60 to 70 people present at the September 9, 1985, meeting called by the Union; and that Mr. Austin stated at the meeting that OEA would represent as named plaintiffs all members of the Union without a fee, but any non-member would how to pay a fee, later determined to be $500.00 for each non - Union employee. Nor is there any dispute that the Union in its October, 1985, newsletter, "bragg happenings", informed all unit employees that if they were, or became dues-paying members of the Union by December 15, 1985, a favorable decision in the OEA lawsuit concerning tenure, grievance, RIF, and retirement rights would be retroactive to their first date of employment; but, if they were not dues-paying members, they would be federal employees only from the date of the court decision and would have to hire their own attorney to file suit to have their federal employment declared retroactive to the date they began working. Significantly, the newsletter did not offer non - Union members of the bargaining unit the option of joining the lawsuit if they paid a fee to OEA, but conditioned participation in the OEA lawsuit on Union membership. Since less than a third of the members of the bargaining unit had been present at the meeting addressed by Mr. Austin, but the newsletter had been deposited in the individual mail box of each bargaining unit employee, the Union's newsletter constituted the only direct knowledge the overwhelming majority of bargaining unit employees had of their right to join in the OEA lawsuit which, as the Union had made plain, was dependent on Union membership, i.e., that non - Union members could not be represented in OEA's lawsuit. Had the Union filed the lawsuit, or had the Union engaged the services of an attorney to file the lawsuit, there would be no doubt whatever that it violated its duty under 14(a)(1) of the [ v28 p7 ] Statute, to represent ". . . the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership", either by the exclusion of all non - Union members of the bargaining unit from the lawsuit, as it stated in its October, 1985, newsletter, or by charging non - Union members disparate fees if they joined the lawsuit, as it asserted it informed employees in November, 1985. National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 519 (1982), aff'd 721 F.2d 1402 (D.C. Cir. 1983); American Federation of Government Employees, AFL - CIO, 17 FLRA No. 72, 17 FLRA 446 (1985); American Federation of Government Employees, AFL - CIO, Local 916, 18 FLRA No. 2, 18 FLRA 5 (1985).

The Union asserts, in essence, that because OEA, an organization with which it had no affiliation and no fee for services arrangement, had exclusive control over the lawsuit and that OEA, not it, fixed the conditions for participation in its, OEA's lawsuit, it, the Union, committed no violation of the Statute by "reporting information offered by . . . OEA. . . ." (Union's Brief pp. 3, 6). I do not agree. First, while it is true that there was no direct affiliation between the Union and OEA in the sense of membership, there was, most definitely, a relationship, in the sense of services. Thus, Ms. Barbara H. Jones, Vice President/ President Elect, whose testimony I fully credit, testified that,

". . . We (the Union) are affiliated with the North Carolina Association of Educators. (Sic) because the State of North Carolina does not have collective bargaining, NCAE cannot give us any money for services, they are prohibited by law in terms of any dealing with collective bargaining. Therefore, NEA, the National Education Association of which both NCAE and OEA are members; you know, NEA is the parent organization; NEA gave a grant to OEA for us to receive services, you know, regarding legal kinds of services.

"However, NCAE came in and said that this is not enough for the services that we needed . . . and so we were trying to work out an arrangement where part of our dues would be paid to OEA, and NCAE would have what we call 'governing rights'; we would remain members of NCAE but part of our dues would go to OEA for legal services. . . . " (Tr. 101). [ v28 p8 ] While a fee for services, over and above the grant by NEA, may not have been consummated, OEA had received a grant of money to perform services for the Union so that its "offer", to represent members of the Union without cost in the lawsuit, was not wholly gratuitous even assuming that the OEA grant for services did not specifically include the lawsuit. Indeed this was implicit in Mr. Austin's testimony that, ". . . if the person were a NEA member than we were willing to assume the costs . . . ." (Tr. 76).

Second, even though Mr. Austin testified that no fee for services arrangement had been consummated, whereby a portion of the Union's dues would be paid to OEA, the record is clear that such arrangement had been discussed and that payment by the Union to OEA through NCAE for services was clearly contemplated by all parties, i.e., the Union, NCAE, NEA and OEA; but whether there was, or was not a fee for service arrangement, 6 the Union in its October, 1985, newsletter represented that there was and that dues-paying members would be made plaintiffs pursuant to its fee for service arrangement with OEA. Thus, the newsletter stated,

"In accordance with our fee for service arrangement, OEA will list all our Dues - Paying Members as plaintiffs so that if the court decision is in our favor, the decision will be retroactive to the date all named members were employed. [ v28 p9 ]

Neither OEA nor the union ever made any statement to employees which disclaimed, withdrew, or recanted this representation (See, Union Exh. 1, February, 1986 ("bragg happenings").

Third, the Union did not passively "report information". Quite to the contrary, the Union not only was the moving force in inviting Mr. Austin, in September, and Mr. Nguyen, in November, to address employees, and a willing participant in the joint venture, but the Union informed all employees by its October, 1985, newsletter that all dues-paying members would be named as plaintiffs by OEA in its lawsuit," in accordance with our fee for service arrangement." It was the Union which informed all employees in the same October, 1985, newsletter that non-members of the Union could not be represented in the OEA lawsuit, stating: "These Non - Paying Members of the union would have to hire their own attorney to file suit to have their federal employment declared retroactive . . ."; that "... people who have been Non - Dues Paying Members, unless they hire their own attorney and file suit could stand to lose all previous time in grade presently applied to retirement." And it was Union President Stuertz who, at the meeting of November 4, 1985, reiterated that dues-paying members would be included in the lawsuit without fee, by clear inference pursuant to the prior representation, "In accordance with our fee for service arrangement" 7 but, recanting the Union's statement in its October, 1985, newsletter that non - Union members could not participate under any circumstances in the OEA lawsuit, and now stating that non-dues-paying members could participate in the OEA lawsuit by paying a fee. Although the Union did not know the amount of the fee on November 4, 1985, Ms. Stuertz said she explained that non-members would have to contact Mr. Nguyen to ascertain have much OEA would charge (Tr. 24-25), [ v28 p 10 ] when the Union learned that the fee for non-members was grossly disparate ($500.00), the Union did nothing to disavow or disassociate itself from its joint venture with OEA.

Accordingly, I conclude that the Union violated 16(a)(1) of the Statute when, by its October, 1985, newsletter, it informed all bargaining unit employees that only dues-paying members would be represented, "In accordance with our fee for service arrangement (with OEA)", in a lawsuit to be brought by OEA which ". . . would guarantee Tenure, Grievance, and RIF, as well as benefits such as retirement". Because the Union denied participation, or representation of the rights, of non - Union members in the lawsuit in which it stated it was participating with OEA pursuant to "our fee for service arrangement", the Union plainly violated its obligation under 14(a)(1) of the Statute to represent, ". . . the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." A suit which sought to "guarantee Tenure, Grievance and RIF, as well as benefits such as retirement 8 " obviously related to enforcement of the fruits of collective bargaining and the Union may not provide such a benefit exclusively for Union members. As the Court of Appeals for the District of Columbia Circuit stated in NTEU, supra,

"Attorney representation here pertains directly to enforcement of the fruits of collective bargaining. Therefore, as exclusive bargaining agent, the Union may [ v28 p11 ] not provide such a benefit exclusively for Union members." (721 F.2d at 1406-1407).

See, also, American Federation of Government Employees, AFL - CIO, Local 916, supra.

I further find that the Union violated 16(b)(1) of the Statute when, on November 4, 1985, and thereafter, it advised employees that, pursuant to the arrangement between it and OEA, dues-paying members of the Union would be included in the OEA suit without fee, but that non - Union members of the bargaining unit would be required to pay a fee which, as subsequently determined and employees were then advised, would be $500.00 per employee. As the Authority stated in American Federation of Government Employees, AFL - CIO,

". . . by discriminating between members and non-members in assessing attorney's fees for unit employees participating in a class action lawsuit . . . (Respondent) failed to meet its obligations under section 7114(a)(1) of the Statute and thereby violated section 7116(b)(1) and (8) of the Statute." (17 FLRA at 448).

Having found that the Union violated 16(b)(1) of the Statute, I recommend that the Authority adopt the following:

ORDER

Pursuant to 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby orders that Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, shall:

1. Cease and desist from:

(a) Affording different standards of employee representation to employees in the unit of exclusive representation solely on the basis of whether such employees are members of the Fort Bragg Association of Educators, National Education Association. [ v28 p12 ]

(b) Interfering with, restraining, or coercing unit employees in the exercise of their right to refrain from joining, freely and without fear of penalty or reprisal, the Fort Bragg Association of Educators, National Education Association, or another labor organization.

(c) In any like or related manner interfering with, restraining, or coercing unit employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Represent all employees in its unit of exclusive recognition without discrimination and without regard to membership in the Fort Bragg Association of Educators, National Education Association.

(b) Post at its business office, at its normal meeting places, and at each of the Fort Bragg Schools where notice to employees are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of the Fort Bragg Association of Educators, National Education Association, 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 bargaining unit employees 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 appropriate signed copies of such Notices to the Superintendent of Schools, Fort Bragg Schools, Fort Bragg, North Carolina, for posting and/or [ v28 p13 ] distribution 9 to members of the bargaining unit, as the Superintendent may elect. If posted by the Superintendent, they shall be posted in conspicuous places where unit employees are located and shall be maintained for a period of 60 consecutive days from the date of posting. If distributed to members of the bargaining unit, the Superintendent shall make a single distribution to the individual school mail boxes of all members of the bargaining unit and the Notice must not be accompanied by any comment or letter of transmittal.

(d) Pursuant to 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region IV, Federal Labor Relations Authority, Suite 736, 1371 Peachtree Street, N.E., Atlanta, Georgia 30367, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

WILLIAM B. DEVANEY
Administrative Law Judge

Dated: August 29, 1986
       Washington, D.C.

[ v28 p14 ]

                          APPENDIX
                   NOTICE TO ALL EMPLOYEES
                         PURSUANT TO
                A DECISION AND ORDER OF THE
             FEDERAL LABOR RELATIONS AUTHORITY
         AND IN ORDER TO EFFECTUATE THE POLICIES OF
                CHAPTER 71 OF TITLE 5 OF THE
                     UNITED STATES CODE
    FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
  WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT afford differing standards of employee representation to employees in our unit of exclusive recognition solely on the basis of whether such employees are members of the Fort Bragg Association of Educators, National Education Association.

WE WILL NOT interfere with, restrain, or coerce unit employees in the exercise of their right to refrain from joining, freely and without fear of penalty or reprisal, the Fort Bragg Association of Educators, National Education Association, or any other 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 represent all employees in our unit of exclusive recognition without discrimination and without regard to membership in the Fort Bragg Association of Educators, National Education Association.

                               ____________________________
                                    (Agency or Activity)

Dated:___________________  By:_____________________________
                                        (Signature)

[PAGE]

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 IV, whose address is: Suite 736, 1371 Peachtree Street, N.E., Atlanta, Georgia 30367, and whose telephone number is: (404) 347-2324. [ v28 p2 ]

FOOTNOTES

Footnote 1 For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, e.q., Section 7116(b)(1) will be referred to, simply, as "16(b)(1)."

Footnote 2 General Counsel filed a Motion to Correct Transcript, to which no opposition was filed, and the motion is granted and the transcript is hereby corrected as set forth in the Appendix.

Footnote 3 Mr. Austin testified that when suit was actually filed, on December 3, 1985, in the Southern District of New York, for very practical reasons there were only six teachers, three from West Point and three from Fort Stewart, and OEA, itself, as named Plaintiffs (Tr. 82).

Footnote 4 Mr. Austin quibbled about "In accordance with our fee for service arrangement" asserting that no such service arrangement had been consummated (Tr. 85); nevertheless, he acknowledged the statement, "we will continue with our present arrangement receiving legal services from OEA with a retroactive payment pending a final decision, following discussions with NEA" and made no assertion that such discussions had not taken place or that this was not accurate (Tr. 80) but only that no such service arrangement had been consummated (Tr. 85); but he asserted that the fee for service had nothing to do with the lawsuit (Tr. 80; see, also, Tr. 101).

Footnote 5 The October, 1985, "bragg happenings" also contained the; following message: " Note: ATTENTION UNIT MEMBERS This is your LAST COMPLIMENTARY NEWSLETTER. Newsletters are a fringe benefit for members who pay dues." (G.C. Exh. 3). Even though Ms. Stuertz testified that this policy never took effect (Tr. 22, 23), neither Ms. Osborne nor Ms. Byrd recalled receiving another newsletter until February, 1986 (Tr. 46, 52, 53).

Footnote 6 General Counsel asserts that, "The facts are undisputed that no such fee for service arrangement existed at the time of the newsletter's publication, and that the co-authors of the newsletter knew this to be the case. (footnote omitted). One might conclude from this apparently deliberate or at least irresponsible misstatement of facts that Respondent (Union) was attempting to heighten the anxiety level of teachers regarding the lawsuit . . . ." (General Counsel's Brief, p. 9, and n. 8, citing Vacca v. Sipes, 386 U.S. 171, 177 (1967). I agree that a union's misrepresentation to bargaining unit employees may, in appropriate circumstances, constitute a breach of its duty of fair representation, but in this case, it is the representation of the Union to employees which forms the basis of the unfair labor practice allegation, not the misrepresentation.

Footnote 7 At the hearing, counsel for Respondent amended its answer to admit that portion of Paragraph 5(b) of the Complaint which reads, ". . . but that employees who were not dues-paying members would be required to pay a fee for inclusion in the lawsuit" (Tr. 11). However, contrary to the assertion of General Counsel (General Counsel's Brief, p. 10, n. 9), Respondent did not admit that portion of Paragraph 5(b) of the Complaint which states, in part, ". . . pursuant to the arrangement between Respondent and OEA."

Footnote 8 The Union's assertion that because retirement is excluded from the grievance procedure (G.C. Exh. 2, Art. 16, Section 4b), ". . . the retirement issued is not grievable and thus, not an issue involving the maintenance of the collective bargaining agreement" (Union's Brief, p. 4) is without merit. While it is true that retirement is excluded as a grievable matter under the parties Agreement, the lawsuit, as Mr. Austin stated, concerned a quite different issue as concerned retirement, namely whether, because of their employment under personal service contracts, Section 6 schools employees' retirement rights, provided for by Army regulations, would be honored by OPM.

Footnote 9 The Union's initial discriminatory notice was through its newsletter which was distributed to each individual employee's mailbox. The option for distribution of a copy of the Notice in the same manner is deemed appropriate in order to permit notification of the Notice in the same manner.

---