---

36 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ANTILLES CONSOLIDATED EDUCATION

ASSOCIATION, (OEA/NEA)

SAN JUAN, PUERTO RICO

(Respondent)

and

BETTE L. BENDER, AN INDIVIDUAL

ELIZABETH PAWSON, AN INDIVIDUAL

ANTOINETTE TORRES DE PEREZ, AN INDIVIDUAL

(Charging Parties)

2-CO-70016

DECISION AND ORDER

August 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Respondent (Union) to the attached decision of the Administrative Law Judge. The General Counsel and the Respondent also filed oppositions to each other's exceptions.

The Judge found that when the Union assumed the obligation to administer dental/optical insurance plans (the plans) covering bargaining unit employees, the Union obligated itself to administer the plans in a nondiscriminatory manner for bargaining unit employees who are not dues-paying members of the Union. The Judge determined that an administrative fee assessed by the Union on each participant in the plans who was not a Union member (non-member) was discriminatory because the fee was greater than that paid by Union members. Therefore, the Judge concluded that the Union failed to meet its obligations under section 7114(a)(1) and, thereby, violated section 7116(b)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute).

The Judge ordered the Union to cease and desist assessing non-members an annual administrative fee to participate in the plans which fee exceeded the amount paid by each Union member. Further, the Judge ordered the Union to refund the excess fee to each non-member who paid the fee for each year the fee was paid.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings made by the Judge at the hearing and find that no prejudicial error was committed. We affirm those rulings. For the following reasons, which differ somewhat from those of the Judge, we find that the Union failed to meet its obligations under section 7114(a)(1) and, thereby, violated section 7116(b)(1) and (8) of the Statute. We find also that the Union violated section 7116(b)(1) by interfering with, restraining, or coercing employees in the exercise of their rights under the Statute.

II. Background

At all times relevant to this case, the Union has been the exclusive representative of various teachers and other professional employees employed by the Antilles Consolidated School System (the Agency or ACSS). The compensation, tenure, leave, hours of work, and other incidents of employment of the employees involved in this case are required by 20 U.S.C. § 241 (Comparability Law) to be comparable to the conditions of employment of teachers and other professional employees employed by the District of Columbia public schools.⁽¹⁾

In February 1983, the Union and Agency entered into negotiations for a new collective bargaining agreement. During the negotiations, the Union proposed that unit employees be offered contributory dental/optical benefit plans under which each employee participant would contribute a specific portion of the premium and the Agency would contribute the balance of the premium. These plans were similar to the dental/optical benefit plans provided in the collective bargaining agreement between the District of Columbia Board of Education (DCBOE) and the Washington Teachers Union, Local 6, AFT, AFL-CIO (WTU). The collective bargaining agreement between the DCBOE and the WTU also provided that the dental/optical plans would be contracted for by the WTU.

On February 19, 1986, the Union and Agency agreed on a provision entitled Article 38 "Benefits" which included, as relevant to this case, the following:

Section a: Optical plan- . . . the Employer agrees to pay for each participating employee an amount identical to that paid for participating employees in the public schools of the District of Columbia for an optical insurance plan to be recommended by the joint Employer-Association committee . . . and contracted for by the Association.

Section b: Dental plan- . . . the Employer agrees to pay for each participating employee an amount identical to that paid for participating employees in the public schools of the District of Columbia for a dental insurance plan to be recommended by the joint Employer-Association committee . . . and contracted for by the Association.

Section c: There shall be a joint Employer-Association committee appointed to review all aspects of the optical and dental insurance plans. The Employer shall be held harmless from any liability arising out of the implementation and administration of the optical and dental insurance plans.

Judge's Decision at 4. The parties also executed a side-agreement, which provided as follows:

The parties understand and agree that in the event specific provisions of the Agreement dealing with the D.C. comparability issue aredeclared non-negotiable by higher authority, the Employer will issue those provisions unilaterally as published policy, notwithstanding an Association appeal of such declaration of non-negotiability.

Id. at 5.

On April 21, 1986, the Agency issued an appendix to the ACSS School Board Policy Manual. The appendix revised various policies affecting working conditions by providing comparability between ACSS employees' terms and conditions of employment and those of similar employees in the District of Columbia. Among other provisions, the "Benefits" section of the parties' February, 1986, collective bargaining agreement was made part of this appendix. On April 28, 1986, the Union was notified that the collective bargaining agreement had been disapproved by the Agency head. The Union filed a petition for review with the Authority contesting the Agency head's disapproval. The Authority found, however, that the collective bargaining agreement became effective pursuant to section 7114(c)(3) of the Statute because it was not timely disapproved by the Agency head. Antilles Consolidated Education Association and Department of Defense, Department of the Navy, Antilles Consolidated School System (ACSS), 28 FLRA 118 (1987) (ACEA).

On September 6, 1986, the Union's Executive Board voted to charge each non-member participant in the plans an administrative charge of $5 per month, to be paid as a yearly payment of $60, in addition to the required premiums. On November 28, 1986, the Union issued a leaflet announcing details of the new plans. The leaflet stated, among other things, that although Union members would have the administrative costs of the plans covered by their Union membership, non-member participants would be assessed $5 per month to cover administrative costs. In December 1986, the Agency newsletter discussed the new plans. The newsletter stated that the "ACEA, not the federal government, is the sponsor and administrator of the current plans." Judge's decision at 7 (emphasis in original).

The plans went into effect in January 1987. Approximately 128 Union-member participants, 9 non-member participants, and 7 non-bargaining unit participants enrolled in the plan. Agency and employee contributions were paid to the Union which, in turn, paid all premium costs of the plans to the companies providing the plans.

On March 25, 1987, three non-member participants in the plans filed an unfair labor practice charge alleging that the Union violated section 7116(b)(1) and (8) of the Statute by charging each non-member participant a $60 per year administrative fee to participate in the plans.

III. Administrative Law Judge's Decision

The Judge, citing Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908 (1987) (Fort Bragg), found that the scope of the "duty of fair representation" under section 7114(a)(1) of the Statute is the same as that in the private sector. The Judge noted that the Authority stated, in Fort Bragg, that in order to determine whether a union had fulfilled its duty of fair representation, a union's responsibilities under section 7114(a)(1) must be analyzed in the context of whether the union's representational activities on behalf of employees were grounded in the union's authority to act as exclusive representative. Judge's Decision at 11.

The Judge noted that the "establishment of dental/optical benefits to unit employees in the case herein has its origin in the Comparability Law." Id. at 12. The Judge further noted that the Comparability Law did not require that these benefits be bargained collectively or administered by an exclusive representative. The Judge found, however, that "[b]y virtue of its being the exclusive representative, [the Union] sought and received inclusion in its contract with ACSS articles providing dental/optical funding with Union administrative authority[.]" Id. The Judge concluded that "[a]s contract provisions the dental/optical and other benefits were thereafter due employees not only under the Comparability Law, but also as a matter of contractual right enforceable as such by the Union on behalf of all unit employees." Id. The Judge noted that the collective bargaining agreement signed by the parties in February 1986, which was later disapproved by the head of the Agency, was in effect at all times material to this case by operation of law pursuant to the Authority's decision in ACEA.

The Judge found that, whether the plans proceeded from the collective bargaining agreement or the Agency's policy manual revision, the plans became effective pursuant to the Union's status as the exclusive representative of unit employees. The Judge concluded that "[w]hen the Union took on the function of administering the dental/optical plans it also took on the obligation to administer the program in a nondiscriminatory manner vis a vis nonmember unit employees." Id. at 13.

The Judge found that the Statute did not require the Union to maintain a separate account to administer the plans, and that the Union did not violate the Statute by commingling union dues with the plans' fees and assessments. The Judge stated, however, that in view of the Union's responsibility to administer the plans in a nondiscriminatory manner, "the Union must be prepared at any time to trace all costs and funds when challenged that the assessment to nonmember unit employees is discriminatory." Id.

The Judge found that only $4,000 of the Union's asserted $7,100 costs for administering the plans had been substantiated. The Judge divided the $4,000 by the 138 participants (128 Union-member participants, 9 non-member participants and 7 non-unit employees minus 6 employees who left employment sometime in 1987) in the plans and found that the annual cost for administering the plans amounted to approximately $30 per participant. Consequently, the Judge found that non-member participants could be charged only $30 per year.

The Judge concluded that because the $60 fee assessed non-member participants exceeded that paid on behalf of Union-member participants, the Union failed to meet its obligations under section 7114(a)(1) in violation of section 7116(b)(1) and (8) of the Statute. Accordingly, the Judge ordered that the Union cease and desist from charging non-member participants an annual administrative fee to participate in the plans which exceeds the fee paid on behalf of Union-member participants. The Judge also ordered the Union to reimburse each non-member participant $30 for each yearly assessment.

IV. Exceptions

A. The Union's Exceptions

According to the Union, the scope of the duty of fair representation extends only to those areas where a union is acting in its capacity as the exclusive representative of the bargaining unit. In support of its position, the Union relies on National Treasury Employees Union v. Federal Labor Relations Authority, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU); American Federation of Government Employees, Local 916 v. FLRA, 812 F.2d 1326 (10th Cir. 1987); and Fort Bragg.

The Union contends that the instant case is similar to NTEU and Fort Bragg in that employees' entitlement to dental/optical benefits is provided by statute (the Comparability Law). According to the Union, all bargaining unit employees were free to join the plans administered by the Union or any other available dental/optical plans. Further, the Union asserts that any employee deprived of a dental/optical plan by the Agency could bring an action against the Agency in Federal court to seek entitlement under the Comparability Law. In this regard, the Union acknowledges that the Agency denied an employee's request for payment for a different dental/optical plan. The Union contends that, as the Agency's failure to provide payment violated the Comparability Law and constituted an unfair labor practice, the affected employee should have challenged the decision in court and before the Authority.

The Union also claims that it was not acting as an exclusive representative when it assumed the duties of administrator of the plans. Rather, the Union contends that Article 38 of the parties' collective bargaining agreement constitutes a restatement of employees' entitlement to dental/optical benefits under the Comparability Law. According to the Union, because the restatement of this entitlement in the parties' collective bargaining agreement was not necessary for employees to obtain dental/optical benefits, the Union did not violate its duty of fair representation when it charged non-member participants a $60 administrative fee. In support, the Union attached to its exceptions copies of the parties' collective bargaining agreements involved in NTEU and Fort Bragg. The Union claims that no duty of fair representation was found to exist in either NTEU or Fort Bragg, despite the fact that the parties' collective bargaining agreements in each of these cases contained a provision providing rights to unit employees that were already provided by statute.

The Union contends further that, even assuming a duty of fair representation exists in this case, the $30 administrative fee computed by the Judge is not supported by the record. The Union states that although the Judge found that the Union made certain expenditures in connection with the plans, including expenditures for computer software, the Judge did not credit the Union for those expenses when he computed the per-participant administrative fee. The Union requests that all expenses incurred, as presented at the hearing and in its post-hearing brief, be taken into consideration in computing the per-participant cost of administering the plans.

B. The General Counsel's Exceptions

The General Counsel contends that the Union is entitled to charge both Union-member participants and non-member participants an administrative expense fee only if: (1) the per-participant cost does not exceed the cost of administering the plan; and (2) the funds collected for premiums and fees are maintained in a separate account. The General Counsel alleges that the Judge erred by concluding that the Statute does not require the Union to maintain a separate account to administer the plans and to refrain from commingling dues with the plans' fees and assessments.

The General Counsel argues that because the Union commingled the plans' monies with general dues monies, the administrative fees paid by non-members constitute involuntary loans from the non-member participants to the Union. The General Counsel states that these involuntary loans interfere with the right of non-member employees under section 7102 of the Statute to refrain from assisting the Union. The General Counsel argues further that the Judge's "pure rebate award" does not remedy the Union's violation of section 7102 because the remedy fails to: (1) adopt any procedures to ensure that non-members' administrative fees would not be used to assist the Union; and (2) establish procedures to maintain accurate administrative expense records of the plans. General Counsel's Brief in Support of Exceptions at 11.

The General Counsel contends further that "it was improper for the Judge to find that [the Union] met its burden of proof and established or traced expenses incurred in connection with the plans." Id. at 13. The General Counsel argues that the amounts claimed were based on the "[Union] officer's . . . self-serving perceptions that they should receive more money because they administered the plan." Id. Further, according to the General Counsel, the record contains no evidence that the Union kept a record of time or money spent administering the plans. The General Counsel contends that because the record establishes that the claimed costs "were not arrived at by any recognized accounting standard, or independent audit of [the Union's] books, such claims should be rejected." Id.

The General Counsel also alleges that the Judge's arithmetic computations are incorrect. The General Counsel notes that the Treasurer's stipend was increased from $500 to $1,000 during the period from January 1987 through August 1987, and that the stipend was raised to $4,000 beginning in September 1987. Thus, the General Counsel claims that only $500 is applicable to the first year of the plan. The General Counsel also claims that the number of participants in the plans was 144 because this number represents all employees who paid an administrative fee. Consequently, the General Counsel argues that the administrative costs should be divided by 144, not 128 as found by the Judge.

Finally, the General Counsel asserts that the Department of Labor (DOL) requires Federal-sector unions to file an annual financial report, Form LM-3, which includes questions regarding whether the union administers a trust which benefits members. The General Counsel alleges that the Union failed to satisfy this requirement because it represented to the DOL, on its Form LM-3, that it did not administer a trust or benefit plan in 1986 and 1987. The General Counsel further alleges that the Union's record-keeping is inconsistent with the DOL requirements found in 29 C.F.R. § 403.7, entitled "Maintenance and retention of records." The General Counsel adds, however, that even if the Union complied with the requirements of 29 C.F.R. § 403.7, that compliance would not affect a violation of the Statute in this case.

V. Opposition to Exceptions

A. The Union's Opposition to the General Counsel's Exceptions

The Union contends that the plain wording of the Statute does not require that administrative fees collected by the Union be segregated from the Union's general dues monies. According to the Union, the fee involved in the present case is used solely to administer the plans and, therefore, there is no risk that the monies collected will be used for other purposes.

B. The General Counsel's Opposition to the Union's Exceptions

The General Counsel rejects the Union's claim that because employees are entitled to dental/optical benefits under the Comparability Law, the Union did not violate its duty of fair representation. The General Counsel also rejects the Union's claim that unit employees who are denied access to dental/optical plans other than the one administered by the Union can seek entitlement to such benefits under the Comparability Law. The General Counsel argues that "[w]here the exclusive representative has negotiated a benefit, by virtue of statutory authority, it is by no means apparent that non-union employees can successfully sue for the same benefit under the enabling statute." General Counsel's Opposition at 12.

Finally, the General Counsel objects to the Union's attempt to place the collective bargaining agreements involved in NTEU and Fort Bragg into the record by attaching them to its exceptions. The General Counsel claims that neither of those decisions "set[s] out the contract provisions which [the Union] incorporated and attached to [its] Exceptions brief." Id. at 15. The General Counsel asserts that "[the Union's] references to those provisions and [its] attachment of those contracts should be disregarded since they were not entered into the record in this proceeding." Id.

VI. Analysis and Conclusions

A. Preliminary Matter

We agree with the General Counsel's contention that the collective bargaining agreements submitted by the Union with its exceptions should not be considered by the Authority. Section 2429.5 of our Regulations provides that the Authority will not consider evidence which was not presented in the proceedings before the Administrative Law Judge. Accordingly, as the documents included in the Union's exceptions were not presented in the proceeding before the Administrative Law Judge, we will not consider the documents here. See United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA 630 (1987).

B. Background

This case concerns the scope of a union's duty of fair representation under section 7114(a)(1) of the Statute.

Section 7114(a)(1) provides, in pertinent part, that "[a]n exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership."

A union's failure or refusal to comply with the duty of fair representation violates section 7116(b)(8) of the Statute and, thereby, constitutes an unfair labor practice. National Treasury Employees Union v. FLRA, 721 F.2d 1402, 1403 (D.C. Cir. 1983) enforcing National Treasury Employees Union, 10 FLRA 519 (1982). In addition, a union's violation of the duty of fair representation constitutes an unfair labor practice under section 7116(b)(1) if the union's conduct interferes with, restrains, or coerces any employee in the exercise of his or her right under section 7102 to join, or refrain from joining, a union. Id.

C. Scope of the Duty of Fair Representation

Both parties assert that their positions are supported by the court's decision in NTEU and the Authority's decision in Fort Bragg. It is useful, therefore, to review those decisions.

NTEU involved a union's refusal to provide attorney representation to a non-member who sought to challenge a removal action before the Merit Systems Protection Board (MSPB). The Authority found, among other things, that the union's policy of "denying attorney representation to non-member employees while providing such representation to members" violated section 7116(b)(1) and (8) of the Statute. National Treasury Employees Union and National Treasury Employees Union Chapter 121 and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 16 FLRA 717, 718 (1984).

The court reversed the Authority's decision and, in so doing, rejected "the Authority's claim that . . . Congress intended to impose a duty [of fair representation] broader than that implied in the private sector." NTEU, 800 F.2d at 1171. The court held, instead, that "Congress adopted for government employee unions the private sector duty of fair representation." Id. The court found that the union did not violate its duty of fair representation by refusing to provide the non-member with attorney representation before the MSPB because the union's authority as exclusive representative did not "strip [the unit employee] of redress as an individual." Id. at 1170. The court noted that the employee had a statutory right to be represented by an attorney or other representative of his choice and that the employee "actively pursued his statutory appeal rights and won. He did not do that by the union's suffrage but as a matter of right." Id.

In Fort Bragg, which involved a union's requirement that non-members pay a fee to be included in a lawsuit concerning the employment status of teachers in the Department of Defense Section 6 school system, the Authority reexamined the scope of the duty of fair representation under the Statute. The Authority found no indication in either the wording of section 7114(a)(1) of the Statute or the legislative history of the Statute that Congress intended the scope of the duty in the Federal sector to differ from that in the private sector. Accordingly, the Authority concluded, in agreement with the court in NTEU, that Congress intended the duty of fair representation in the Federal sector to be the same as in the private sector.

The Authority then addressed the origins and applications of the duty in the private sector. The Authority noted that in Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202 (1944), the U.S. Supreme Court held that a union's duty to fairly represent members of its bargaining unit under the Railway Labor Act resulted from section 2 of the Act, 45 U.S.C. § 142, which provides that a majority of a craft or class of employees has the right to determine the bargaining representation of the craft. The Court noted that unit employees "cannot bargain individually on behalf of themselves as to matters which are properly the subject of collective bargaining," and that "[s]o long as a labor union assumes to act as the statutory representative of a craft, it cannot rightly refuse to perform the duty . . . to represent the entire membership of the craft."
Id. at 200, 204.

The Authority noted also that the Supreme Court held that the duty of fair representation was required under the National Labor Relations Act. The Authority cited, among other cases, Humphrey v. Moore, 375 U.S. 335, 342 (1964) (Humphrey), where the Court 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." Based on its analysis of the above-cited, and other, cases, the Authority concluded that the duty of fair representation in the private sector "stems from a labor union's statutory rights as an exclusive representative of bargaining unit employees." Fort Bragg, 28 FLRA at 918.

Consistent with the scope of the duty in the private sector, the Authority stated that it would analyze a union's responsibilities under section 7114(a)(1) of the Statute in the context of whether the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative. The Authority held that where the union is acting as the exclusive representative, its activities must be undertaken without discrimination and without regard to union membership under section 7114(a)(1). The Authority held further that where a union is not acting as the exclusive representative, the duty of fair representation does not apply.

The Authority concluded in Fort Bragg that the union did not violate its duty to fairly represent unit members by publicizing the fee requirement. The Authority stated:

There is no indication in the record that the representation of these [unit] employees was grounded in any way in the [r]espondent's role as exclusive representative. Indeed, like the situation addressed by the court in [NTEU], . . . , 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 . . . ."

Fort Bragg, 28 FLRA at 918.

We reaffirm that the duty to fairly represent unit members under section 7114(a)(1) of the Statute applies only to activities undertaken by a labor union as exclusive representative. See Karahalios v. National Federation of Federal Employees, U.S. , 109 S.Ct. 1282, 1286 (1989) (Karahalios) (The duty of fair representation under the Statute "parallels the fair representation obligation of a union in the private sector[.]") (citations omitted). See also Barrett v. Ebasco Constructors, Inc., 868 F.2d 170, 171 (5th Cir. 1989) ("The scope of the duty of fair representation is coextensive only with the union's statutory authority to act as the exclusive representative of all employees within the bargaining unit. If a union does not serve as the exclusive agent for the members of the bargaining unit with respect to a particular matter, there is no corresponding duty of fair representation.").⁽²⁾ Accordingly, we will apply the analytical framework adopted and applied by the Authority in Fort Bragg to determine whether (1) the Union was required to fairly represent non-members in its administration of the dental/optical plans involved in this case; and (2) the Union's requirement that non-members pay a $60 yearly administrative fee to participate in the plans violated the Union's duty of fair representation.⁽³⁾

D. Application of the Standard in this Case

(1) The Duty of Fair Representation Applies to the Administration of the Plans

We will first determine whether the Union's activities in relation to the insurance plans were undertaken in the Union's capacity as exclusive representative of unit employees. For the following reasons, we conclude that these activities were undertaken in that capacity. We will then address the Union's specific arguments that the duty of fair representation did not attach in this case.

It is clear that the particular dental/optical plans involved here were arrived at through collective bargaining. The chief negotiators for the Agency and the Union testified, for example, that the parties had separate bargaining proposals on the subject. Transcript at 79, 146. The Union's chief negotiator acknowledged that the Union "negotiated" with the Agency on the subject. Id. at 146. The parties "initialled" agreement on Article 38 and, in addition, reached a "side-bar agreement" addressing implementation of the agreement in the event it was disapproved by the Agency head. Id. at 83. In our view, "negotiations" over "proposals" which culminate in "agreements" consistent with statutory requirements are clear indicia of collective bargaining. See 5 U.S.C. § 7103(a)(12) ("collective bargaining" defined, in pertinent part, as "the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees . . . to meet . . . and to consult and bargain in a good faith effort to reach agreement[.]").

It is clear also that, apart from the content of the plans, the Union sought and was granted at the bargaining table the authority to administer the insurance plans. In fact, the Union's authority to administer the plans was incorporated in its proposals concerning the plans. After agreement, the plans, including the Union's authority to administer the plans, were included in the parties' collective bargaining agreement in Article 38.

The Union's authority, and obligation, to engage in collective bargaining under the Statute derive solely from its status as exclusive representative. As the content of, and the Union's authority to administer, the plans were determined by the parties through collective bargaining, and as the Union's authority and obligation to engage in collective bargaining derive solely from its status as exclusive representative, we conclude that the Union's activities in relation to the plans were undertaken in the Union's capacity as exclusive representative. As stated in Fort Bragg, it is clear that the Union's activities were "grounded . . . in the [Union's] role as exclusive representative." Fort Bragg, 28 FLRA at 918. Accordingly, the Union was obligated, under section 7114(a)(1) of the Statute, to administer the plans "without discrimination and without regard to labor organization membership."

As a threshold matter, therefore, we conclude that, apart from consideration of the Union's specific arguments, the duty of fair representation attached to the Union's administration of the insurance plans. We turn now to the Union's arguments.

The Union asserts that unit employees were entitled to insurance benefits pursuant to the Comparability Law and, accordingly, "Article 38 was not needed in order to confer dental/optical benefits upon ACSS employees." Union's Exceptions at 7. The Union maintains, in this regard, that this case is identical to NTEU and Fort Bragg and further, that the parties' agreement to incorporate the statutory entitlement in their collective bargaining agreement does not create an obligation on the part of the Union to fairly represent employees in the administration of the benefits. A separate, but related, argument by the Union is that the duty of fair representation did not attach in this case because unit employees could have sought judicial enforcement of their entitlement to benefits under the Comparability Law. Another separate, but related, Union argument appears to be that the duty of fair representation did not attach because it is the Agency's responsibility, not the Union's, to provide insurance benefits under the Comparability Law.

We reject the Union's arguments. First, whether unit employees would have been entitled to dental/optical benefits in the absence of Article 38 is irrelevant, in our view because here, the Union negotiated not only the contents of the dental/optical plan intended to cover unit employees but also the authority to administer the negotiated dental/optical plan. Further, the record before us strongly supports the conclusion that all unit employees were entitled to the dental/optical benefits provided in Article 38. In fact, by its plain terms, Article 38 applies to all "participating employees," without regard to membership in the Union. Further, it does not appear that the Union disputes that non-members were entitled to the benefits provided in Article 38. See Union's Exceptions at 7 ("Regardless of the existence of Article 38, ACSS employees are entitled to receive . . . the benefit of having an option to participate in a union-administered dental/optical plan.").⁽⁴⁾ The sole "[U]nion-administered dental/optical plan[]" available to unit employees here was the plan contained in Article 38. We conclude, therefore, that Article 38 applies to all unit employees and that all unit employees are entitled, by virtue of their unit status, to the benefits provided in Article 38.

As all unit employees were entitled to the benefits provided, pursuant to the Union's authority and obligation to engage in collective bargaining, solely in Article 38 of the parties' agreement, this case is unlike either NTEU or Fort Bragg. In NTEU, all employees were guaranteed, by statute, the right to appeal certain personnel actions to the MSPB and to be represented in those appeals by counsel of their choice. Similarly, in Fort Bragg, the union's right to represent members in the lawsuit was not dependent on its collective bargaining relationship with the agency and the union did not seek to impose a service fee for a benefit to which non-members were entitled solely under a collective bargaining agreement. Here, by contrast, the Union clearly obtained its authority over administration of the dental/optical plans through collective bargaining, those plans are provided only in the collective bargaining agreement, and the plans apply, by their terms, to all unit employees.

Further, unlike the statutory appeals procedure involved in NTEU, the Comparability Law specifies neither the particular benefits unit employees must receive nor the manner in which those benefits must be provided. Instead, any entitlement of unit employees to the insurance benefits in dispute here flows solely from the Comparability Law's requirement that employees be provided "compensation . . . and other incidents of employment" on the same basis as provided to similar employees in the District of Columbia. We reject, therefore, the Union's assertion that Article 38 is an "incorporation" or "restatement" of the Comparability Law. Union Exceptions at 7.⁽⁵⁾

Second, as all unit employees were entitled to the benefits provided in Article 38, the issue of the extent, if any, to which non-members could have sought or enforced, through the Comparability Law, an entitlement to an optical/dental plan in addition to the one administered by the Union is not relevant to our determination.⁽⁶⁾ We note, in this regard, the Union's assertions that non-members were entitled to an option to participate in both (1) a "union-administered" dental/optical plan and (2) a "different dental/optical plan[.]" Exceptions at 7, 5, respectively.⁽⁷⁾ As noted above, the "union-administered" plan in this case applies, by its terms, to members and non-members. More importantly, however, even if the Comparability Law creates an entitlement to more than one plan for non-members, the plan in dispute in this case is clearly one of the plans to which all unit employees are entitled. As non-members were entitled to the benefits provided in Article 38, and as the issue before us concerns the Union's duty of fair representation in connection with the administration of Article 38, we find it unnecessary to address whether non-members could have obtained access to an additional dental/optical plan under the Comparability Law.

Third and finally, although it is not clear, it appears from the Union's arguments concerning the asserted availability of Federal court jurisdiction to enforce entitlements under the Comparability Law that the Union is asserting that the duty of fair representation did not attach here because it is the Agency's responsibility, not the Union's, to provide benefits under the Comparability Law. To the extent that the Union is making this argument, it is unavailing. Recently, the U.S. Supreme Court considered a similar argument in Breininger. In that case, pursuant to a collective bargaining agreement, the union operated a hiring hall through which it referred union members and non-members of the union for construction work. An employee claimed that the union's refusal to honor employer requests for his services violated, among other things, the union's duty of fair representation.

As is relevant here, the union asserted that the employee had failed to allege a fair representation claim:

[The union] insists that [the employee] has failed to state a claim because in the hiring hall setting a union is acting essentially as an employer in matching up job requests with available personnel. Because a union does not "represent" the employees as a bargaining agent in such a situation, [the union] argues that it should be relieved entirely of its duty of fair representation.

Id. at 436 (footnote and citations omitted).

The Supreme Court rejected the union's argument:

Only because of its status as a Board-certified bargaining representative and by virtue of the power granted to it by the collective-bargaining agreement does a union gain the ability to refer workers for employment through a hiring hall. Together with this authority comes the responsibility to exercise it in a nonarbitrary and nondiscriminatory fashion, because the members of the bargaining unit have entrusted the union with the task of representing them. That the particular function of job referral resembles a task that an employer might perform is of no consequence. The key is that the union is administering a provision of the contract, something that we have always held is subject to the duty of fair representation.

Id. at 437. The Court held that the union's assumption of "what [it] believes is an 'employer's' role in no way renders the duty of fair representation inapplicable." Id. Indeed, the Court stated that "if a union does wield additional power in a hiring hall by assuming the employer's role, its responsibility to exercise that power fairly increases rather than decreases." Id. (emphasis in original).

We recognize that the administration of insurance benefits differs from the administration of a hiring hall. Nevertheless, we find the Court's analysis compelling. In particular, like the union in Breininger, the Union here assumed the role of administering the insurance benefits. That is, whether or not the Agency was required to provide these benefits under the Comparability Law, the Union sought and was granted the right to administer the benefits. The Union sought and was granted this right pursuant to its status as exclusive representative of bargaining unit employees. The Union's right to administer the plans was obtained through collective bargaining and is contained in, and enforceable through, the parties' collective bargaining agreement.

Put simply, the Union sought and obtained its authority to administer, and receive Agency payments for, the insurance plans at the bargaining table. The Union was at the bargaining table as the representative of all unit employees. The insurance benefits sought by the Union apply, by their terms, to all unit employees. We conclude, therefore, that the Union is obligated to fairly represent all unit employees in administering the plans. See Humphrey, 375 U.S. at 342 (a union's authority in the "negotiation and administration of a collective bargaining contract is accompanied by a . . . duty of fair representation."); NTEU, 800 F.2d at 1172 ("[T]he duty of fair representation 'applies whenever a union is representing bargaining unit employees either in contract negotiations or in enforcement of the resulting collective bargaining agreement.'") (citation omitted).

(2) The Union Violated Its Duty of Fair Representation

Although we have concluded that the Union is obligated to fairly represent all unit members in administering the dental/optical benefits contained in Article 38, the question remains whether the Union violated its duty here by requiring non-members to pay a $60 yearly administrative fee to participate in the dental/optical plan. For the following reasons, we conclude that, by imposing this fee, the Union violated its duty of fair representation under section 7114(a) of the Statute, thereby violating section 7116(b)(8) and, in addition, interfered with, restrained, and coerced employees in the exercise of their rights, in violation of section 7116(b)(1).

We note that the Judge specifically declined to "address the question of whether any fee to a nonmember unit employee to participate in the plans would constitute a violation of the Statute." Judge's Decision at 9 n.5. Instead, the Judge found the issue before him to be whether the administrative fee assessed by the Union on non-members was "arbitrary and . . . excessive." Id. at 13. We disagree with the Judge, and find that he was not limited to considering whether the Union violated the Statute by imposing an excessive administrative fee on non-members.

The complaint in this case alleges that the Union "failed and/or refused to fairly represent all employees in the bargaining unit . . . by assessing non-dues paying bargaining unit members a[n] . . . annual administrative fee to participate in a [Union] administered, Agency sponsored dental/optical plan." General Counsel Exhibit 1(e) at paragraph 6. As the complaint relates only to the Union's assessment of an administrative fee, as opposed to an excessive fee, we find no basis on which to conclude that we may not consider whether the Union violated the Statute by imposing a fee on non-members, separate and apart from the reasonableness of the fee. Further, we conclude that it is unnecessary in this case to consider whether the administrative fee assessed non-members was excessive.

Section 7114(a)(1) of the Statute requires a union to represent the interests of all unit employees "without discrimination and without regard to labor organization membership." As discussed above, the Union was required to administer the insurance plans consistent with its obligation under section 7114(a)(1) because, as relevant here, the Union sought and was granted the right to administer the plans in its capacity as exclusive representative of all unit employees. That is, section 7114(a)(1) applies to the Union's administration of the plans.

It is uncontroverted that Union members were not charged an administrative fee to participate in the insurance plans. The fees in this case were assessed based exclusively on the member status of unit employees. The Union asserts, in this regard, that imposition of the fee did not violate the Statute because the fee "is equal to the per capita amount paid through dues by union members participating in the plan." Respondent's Opposition to General Counsel's Exceptions at 2. We reject this assertion. A union's obligations under section 7114(a)(1) require that, with respect to matters falling within the scope of that section, a union's activities be undertaken without regard to the member status of employees.

Here, union members were eligible to participate in the insurance plans for the cost of their premiums alone. They were not required to pay any additional monies to participate in the plans.⁽⁸⁾ Stated otherwise, all Union members--whether or not they participated in the insurance plans--paid the same dues; Union members could purchase the insurance without paying administrative fees. The only difference between the amount of money paid to the Union by member participants and members who did not participate in the insurance plans was the cost of the premiums.

Non-members, on the other hand, were required to pay an additional fee to participate solely because they were non-members. That is, the insurance plans were available to non-members only if they paid an administrative fee which was not paid by members. By requiring the payment of the administrative fee, the Union discriminated against non-members on the basis of their member status and, thereby, violated sections 7114(a)(1) and 7116(b)(8) of the Statute.

In addition, we conclude that the Union's imposition of the administrative fee on non-members violated section 7116(b)(1) of the Statute. Section 7116(b)(1) prohibits a labor union from interfering with, restraining, or coercing employees in the exercise of employees' rights under the Statute. Among the rights guaranteed to employees by the Statute are the rights to "form, join, or assist any labor organization, or to refrain from any such activity[.]" 5 U.S.C. § 7102. We note, in this regard, that in determining whether section 7116(b)(1) has been violated, objective, rather than subjective, standards are used. See American Federation of Government Employees, Local 1931, AFL-CIO, Naval Weapons Station Concord, Concord, California, 34 FLRA 480, 487 (1990).

Applying an objective standard, we conclude that the Union's imposition of an administrative fee for non-members to participate in the insurance plans could reasonably tend to have a coercive effect on the exercise of unit employees of their protected rights under the Statute. See Overseas Education Association, 15 FLRA 488 (1984). In our view, imposition of the fee could lead unit employees reasonably to conclude that they would receive better, or preferential, treatment if they joined the union than if they did not. As such, imposition of the fee interfered with, restrained, or coerced unit employees in the exercise of their rights to join or assist, or refrain from joining or assisting, the Union.

We note, in this regard, that our conclusion is consistent with a decision of the National Labor Relations Board (NLRB) in a similar case. In Exxon Company, U.S.A., 253 NLRB 213 (1980) (Exxon), the company and the union agreed, at the union's request, that the union would administer a medical insurance program for unit employees. The company agreed to subsidize the monthly insurance premium for each unit employee. The union then required non-members to pay a monthly service fee, in addition to necessary premiums, to obtain the insurance. Unit employees who were members of the union were not required to pay a service fee.

As is relevant here, the Board concluded that the union's imposition of the service fee on non-members violated the NLRA.⁽⁹⁾ In particular, the Board stated that "any service fee imposed by a union on nonunion members" as a prerequisite for the receipt of "wages, hours, and terms and conditions of employment for which a union has bargained and which are due unit members by right[,]" constitutes a "per se violation of the [NLRA]." Id. at n.1. The Board held:

The insurance plan . . . is not restricted to union members, but is only available upon payment by nonmembers of . . . a fee not charged to union members. This fee is an impermissible burden on the right to refrain from union membership and violates Section 8(b)(1)(A) . . . and Section 8(b)(2) of the Act[.]

Id. at 218. In view of the Board's finding that, in the circumstances of the case, the imposition of any service fee violated the NLRA, the Board did not address whether the fee was reasonable. Id. at 218 n.10.⁽¹⁰⁾

Like the plan in Exxon, the insurance plans involved in the dispute now before us were open to all unit members. Indeed, as discussed extensively above, all unit members were entitled to the benefits provided in those plans. Also like Exxon, the Union's right to administer the plans was obtained through collective bargaining. In addition, it is clear that in the case before us, the insurance plans were available to non-members only if they paid the Union an administrative fee which was not paid by members. That is, whether or not Union members paid for administrative expenses associated with the plans through their Union dues, it is clear that Union members were not assessed an administrative fee, as such, for participating in the plans. Accordingly, our conclusion that imposition of the fee interfered with, restrained, or coerced employees in the exercise of their rights is consistent with, and buttressed by, the NLRB's decision in Exxon. See also Columbus Area Local, American Postal Workers Union, AFL-CIO (U.S. Postal Service), 277 NLRB 541, 543 (1985) (union's requirement that non-members pay a fee for grievance processing violated NLRA because "[c]harging nonmembers the cost of providing a service which members get free (even though they pay dues) has a coercive effect on nonmembers in the exercise of their right to join or refrain from joining a union.").

In conclusion, we find that the Union's requirement that non-members pay an administrative fee to participate in the Union-administered insurance plans, based solely on their member status, violated the Union's duty of fair representation under section 7114(a)(1) of the Statute. The violation of section 7114(a)(1) constitutes, in turn, a violation of section 7116(b)(8) of the Statute. The requirement that non-members pay the administrative fee also interfered with, restrained, and coerced employees in the exercise of their rights to join or refrain from joining the Union. Accordingly, the requirement violated section 7116(b)(1) of the Statute.

Based on these conclusions, we find it unnecessary to address the General Counsel's contentions that the Union violated the Statute by failing to segregate the funds it received for administering the insurance plans from its other monies.⁽¹¹⁾ In addition, we do not address the extent to which the reasonableness of a fee charged to both member and non-member participants would be subject to review under the Statute.

VII. Remedy

We find that, as the Union's violations of the Statute stem from its requirement that non-members pay an administrative fee, as opposed to an excessive or unreasonable fee, to participate in the Union-administered insurance plans, it is appropriate and necessary to effectuate the policies and purposes of the Statute that the Union be directed to refund all such fees collected from non-member unit employees.⁽¹²⁾ In addition, all non-member unit employees shall be provided with an opportunity to participate in the insurance plans on the same basis as member participants. Finally, to ensure that all unit employees are aware of their rights pursuant to our Order, the Union shall prepare and distribute to all unit employees a leaflet, similar to the one issued on November 28, 1986, explaining their rights to participate in the Union- administered plans and have refunded any administrative fees previously paid for participation in these plans.

VIII. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, shall:

1. Cease and desist from:

(a) Assessing non-union bargaining unit member participants an annual administrative fee to participate in the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, administered dental/optical plans.

(b) Interfering with, restraining, or coercing employees in the exercise of their rights to refrain from joining, freely and without fear of penalty or reprisal, the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico.

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

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Represent all employees in units of exclusive recognition without discrimination and without regard to membership in the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico.

(b) Reimburse current, and former, unit employees for administrative fees that were improperly collected.

(c) Prepare and distribute a leaflet, similar to the leaflet distributed on November 28, 1986, explaining to all unit employees their rights to participate in the dental/optical plan and have refunded any administrative fees previously paid for participation in the plan.

(d) Post at its business offices and its normal meeting places, including all places where notices to members and other employees of the Antilles Consolidated Education Association (OEA/NEA), San Juan Puerto Rico, 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 will be signed by the President of the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members and to other employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(e) Submit appropriately signed copies of such Notices to the Superintendent of the Antilles Consolidated School System, for posting in conspicuous places where unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting.

(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region II, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE PURPOSES OF

THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT assess unit employees who are not union members an annual administrative fee to participate in Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, administered dental/optical plans.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights to refrain from joining, freely and without fear of penalty or reprisal, the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL represent all employees in units of exclusive recognition without discrimination and without regard to membership in the Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico.

WE WILL reimburse current, and former, unit employees for administrative fees that were improperly collected.

WE WILL prepare and distribute a leaflet explaining to all unit employees their rights to participate in the dental/optical plan and have refunded any administrative fees previously paid for participation in the plan.

______________________________
(Union)

Dated:___________ By:_________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region II, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 20 U.S.C. § 241(a), provides, in pertinent part:

To the maximum extent practicable, the local educational agency, or the head of the Federal department or agency . . . shall take such action as may be necessary to ensure that the education provided pursuant to such arrangement is . . . , in the case of education provided under this section outside the continental United States, Alaska, and Hawaii, comparable to free public education provided for children in the District of Columbia. . . . Personnel provided for under this section shall receive such compensation, tenure, leave, hours of work, and other incidents of employment on the same basis as provided for similar positions in the public schools of the District of Columbia.

2. Although we reaffirm that the scope of the duty of fair representation under the Statute is the same as that in the private sector, we note that the statutory schemes applicable to administrative and judicial enforcement of the duty differ under the Statute and the NLRA. Compare Karahalios, 109 S.Ct. at 1284 ("Because we decide that Congress vested exclusive enforcement authority over [the] duty [of fair representation] in the . . . Authority . . . and its General Counsel . . . no private cause of action exists."); with Breininger v. Sheet Metal Workers International Association Local Union No. 6, U.S. , 110 S.Ct. 424, 430 (1989) (Breininger ) ("That a breach of the duty of fair representation might also be an unfair labor practice [under the NLRA] is thus not enough to deprive a federal court of jurisdiction over the fair representation claim.").

3. We note, at the outset, that there are no assertions in the record before us, and no other basis on which to conclude, that the insurance plans involved in this case are "Employee organization plans," within the meaning of 5 U.S.C. § 8903.

4. It is clear, in this regard, that the Union relies on its argument that Article 38 was not the exclusive planavailable to unit employees under the Comparability Law. See id. at 5 ("[N]on-dues paying members of the bargaining unit[] could have joined a different dental/optical plan . . . and if deprived of [a] dental/optical plan by ACSS, could bring actions in [F]ederal courts on their own behalf to seek entitlement under the Comparability Law."). We find no Union assertions in the record, however, that Article 38 applied only to Union members or that, apart from collection of the administrative fee, it was privileged to deny non-members access to the plan contained in Article 38. See Transcript at 60, 62-63 (Union counsel asserts that Union's position is that duty of fair representation did not attach because non-members had "the right not to join the dental plan administered by the Union[,]" and because "the dental plan that the Union is using is not the only dental plan."). Instead, the Union appears to contest only whether non-members may be obligated to pay what it asserts to be a reasonable administrative fee for the benefits provided in Article 38, not whether non-members are entitled to the benefits themselves.

5. We note that, pursuant to the parties' agreement, the optical/dental plans became effective pursuant to an Agency-issued appendix to the ACSS School Board Policy Manual. The appendix is identical to Article 38 of the parties' agreement, which, as noted above, was not timely disapproved by the Agency head. There is no argument before us, and no basis on which to conclude, that the issue in this case is affected by the fact that, initially, the plans became effective pursuant to an Agency-issued appendix.

6. Compare Franco v. United States, 15 Cl.Ct. 283 (1988) (neither the Comparability Law, nor a collective bargaining agreement requiring actions consistent with the Comparability law, provided basis for award of backpay to teachers who allegedly were required to work longer hours than their counterparts in the District of Columbia), aff'd, No. 89-1012 (Fed. Cir. May 16, 1989), cert. denied, U.S. , 110 S. Ct. 538 (1989); with Antilles Council of School Officers v. Lehman, 550 F. Supp 1238 (D. Puerto Rico 1982) (complaint seeking declaratory judgment that principals did not enjoy same conditions of employment as their counterparts in the District of Columbia adequately set forth claim, under the Comparability Law, so as to require adjudication on the merits).

7. The Union does not assert that it was entitled, under the Comparability Law, to charge an administrative fee to non-members. We note, in this regard, that "administrative costs" for the District of Columbia plan are absorbed by the "benefit providers," not the union. Judge's Decision at 3-4.

8. We note that Union members' dues were not increased as a result of the Union's administration of the insurance plans. Judge's Decision at 6 n.1. We note also that the Judge inadvertently stated that Union members' dues were $230 per month. Id. The record reflects that dues were $230 per year.

9. The Board concluded also that the company committed unfair labor practices by, among other things, failing to bargain with the union over changes in the insurance plans.

10. The Board also noted that it did not decide whether the union's actions violated its duty of fair representation. Id. at 220 n.20. The Board found that "[t]his theory was not alleged in the complaint and it cannot be fairly said that the matter was litigated at the hearing." Id.

11. We note, however, that as unit employees are not compelled to financially support the Union or participate in the insurance plans involved herein, it is not apparent to us that the cases relied on by the General Counsel to support this argument apply. See, for example, Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 455 (1984) ("The First Amendment does limit the uses to which the union can put funds obtained from dissenting employees.") (citing Abood v. Detroit Board of Education, 431 U.S. 209 (1977)).

12. The Union does not, of course, have an obligation to fairly represent nonunit employees. Accordingly, our remedial order does not apply to those employees.

---