[ v41 p402 ]
41:0402(41)CA
The decision of the Authority follows:
41 FLRA No. 41
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 Respondent to the attached decision of the Administrative Law Judge. The Charging Party and the General Counsel filed oppositions to the Respondent's exceptions.
The Judge found that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by prohibiting a bargaining unit employee from acting as a representative of the Union in proceedings under the Respondent's Equal Employment Opportunity (EEO) complaint procedure.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we agree with the Judge that by prohibiting an employee in its Office of the Chief Counsel (OCC) from acting as a representative of the Union in proceedings under the Respondent's EEO complaint procedure, the Respondent interfered with its employees' rights assured by section 7102 in violation of section 7116(a)(1) of the Statute.
II. Background
Since 1987, the Union's Chapter 251 has been the exclusive representative of a bargaining unit of about 600 employees in the OCC. The OCC is a component of the Treasury Department's Legal Division, which is headed by the General Counsel. About 300 of the unit employees are attorneys.
Warren Joseph is an attorney in OCC and is the Executive Vice President and Chief Steward of Chapter 251. His duties include drafting responses to inquiries from taxpayers and giving advice to IRS field offices concerning tax matters. The attorneys in OCC, including Joseph, do not participate on the Respondent's behalf in EEO matters and do not have access to the Respondent's files dealing with EEO matters.
During 1987, unit employee Benjamin Foster filed an EEO complaint under the Respondent's EEO appeals procedure. Foster designated the Union as his representative, and the Union designated Joseph to handle Foster's case. The Treasury Department's EEO procedures governing the processing of complaints provide, in Part XIV, Section (b)(1) and (2), respectively, that: (1) a complainant's representative may be an employee of the Department so long as representation is consistent with the faithful performance of his or her duties; and (2) a complainant may be represented by the Union unless such representation would constitute a conflict of interest or position.
While Foster's complaint was pending formal hearing, the Respondent filed a motion with the hearing officer to disqualify Joseph from representing Foster. The Respondent argued that Joseph was subject to General Counsel Directive No. 6 (Directive No. 6) because he is an attorney in OCC. Directive No. 6 was issued by the Department's General Counsel and states the following in section 2(D), entitled "Other Outside Employment":
Permission to engage in other outside employment may be granted when there is a showing by the attorney that such employment is wholly consistent with the general policies set forth in this Directive. Representation of individual Treasury Department employees in disciplinary or grievance proceedings in any hearing of any nature is determined to be prohibited employment regardless of whether any form of compensation is received.
Judge's Decision at 5. Directive No. 6 "has been narrowly interpreted by the [Department's] General Counsel as prohibiting Chief Counsel attorneys from providing representation, even for Chief Counsel employees, in administrative and court hearings, including those involving EEO matters." Id. at 6. The Respondent contended that permitting Joseph to represent Foster would be inconsistent with Part XIV(b)(1) of the Respondent's EEO procedures which, as noted above, provides that a complainant's representative may be an employee of the Department so long as representation is consistent with the faithful performance of his or her duties.
Joseph filed an opposition to the motion with the hearing officer. In his opposition, Joseph noted, among other things, the rights of employees to act on behalf of a labor organization guaranteed by section 7102 of the Statute and relevant provisions of the parties' collective bargaining agreement authorizing union representation in the Respondent's EEO statutory appeals procedure. In this regard, section 2.D.4. of the parties' collective bargaining agreement provides that official time shall be granted to Union stewards for "meetings to present appeals in connection with statutory or regulatory appeal procedures in which the Union is designated as the representative." Id. at 2-3.
The hearing officer referred the Respondent's motion to the Department's Office of Equal Opportunity Program (OEOP). Joseph filed a response to the motion with the OEOP, restating his position and arguing further that even if Directive No. 6 did apply to EEO proceedings, it had been superseded by the Statute. While the matter was pending before the OEOP, the Respondent ordered Joseph to cease his representation of Foster because that representation violated Directive No. 6. After explaining the relevant statutory provisions and contractual requirements to the Respondent, Joseph was again directed by the Respondent not to represent Foster.
OEOP ruled that the motion to disqualify Joseph was without merit. OEOP noted that the Respondent was not asserting that Joseph's actual duties created any conflict of interest, but was relying instead on the "broad prohibition in General Counsel Directive No. 6 of outside employment to allege conflict." Joint Exhibit 8. OEOP found that "there is no conflict between the assigned duties of Joseph's position and his representation of complainant. The [Union] will be allowed to remain as complainant's designated representative and Mr. Joseph will be allowed to continue to participate in the complaint process on behalf of the [U]nion." Id. OEOP noted, however, that it did "not attempt to interpret or rule on the validity of the General Counsel Directive in this decision." Id.
Joseph submitted the OEOP decision to the Respondent. Without referencing the OEOP decision, the Respondent again ordered Joseph to stop representing any complainant in any EEO matter. Joseph ceased representing Foster and another employee whose EEO complaint was pending. Foster was unable to secure representation for his EEO case and proceeded alone in his pre-hearing conference proceedings.
III. Administrative Law Judge's Decision
The Judge noted that the Respondent did not contest the facts, but asserted its "preeminent right, through General Counsel Directive No. 6, to prohibit Union stewards who are attorneys from representing unit employees in the Respondent's EEO process. Respondent argued that its Directive, which per se states a conflict of interest in connection with representation of employees in grievances and disciplinary hearings, takes precedence over the Statute." Judge's Decision at 9-10 (footnote omitted). The Judge also noted that the Respondent acknowledged that Joseph "may and does act as a representative of the Union in grievances and arbitrations (even those involving disciplinary matters) under the negotiated grievance procedure [and] is not in violation of General Counsel Directive No. 6 in this scenario." Id. at 10. Further, the Judge noted the Respondent's statement that "if Mr. Joseph's representational activities on behalf of the Union are pursuant to the collective bargaining agreement, then he is not in violation of its Directive and will be allowed to participate." Id.
The Judge found that by denying OCC attorneys the opportunity to represent the Union in EEO proceedings, the Respondent violated section 7116(a)(1) of the Statute. The Judge stated that in so finding, he relied on "[s]ection 7102 of the Statute[,] which specifically gives employees the right to 'act for a labor organization in the capacity of a representative' unless, as provided in [s]ection 7120(e), such 'participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee.'" Id. at 11. The Judge found that inasmuch as the record indicated that Joseph's duties "have nothing whatsoever to do with EEO matters" and "since the Statute supersedes Respondent's restrictive Directive," the Respondent violated section 7116(a)(1) of the Statute when it forbade Joseph from acting as the Union representative in the EEO proceeding. Id. at 12.
The Judge also rejected the Respondent's contention that the complaint should be dismissed because there is a "compelling need" for Directive No. 6. The Judge acknowledged the determination by the Supreme Court in FLRA v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261 (1988) (Aberdeen) that when compelling need is raised in response to a demand to bargain, the compelling need question may be resolved only through a negotiability appeal and not an unfair labor practice proceeding. The Judge found, however, that inasmuch as only section 7117 of the Statute refers to the "compelling need" defense, "it would appear that such defense would only apply in response to a union's request to bargain on a condition of employment which is covered by an existing agency rule [or] regulation." Id. The Judge "seriously question[ed] Respondent's position that it may utilize such a defense in the circumstances presented herein and deprive an employee of his statutory right to represent a union, particularly since Congress saw fit to spell out in [s]ection 7120(e) the specific circumstances under which such right might be curtailed by an agency." Id.
Finally, the Judge rejected the Respondent's argument that it did not violate the Statute because the prohibition in Directive No. 6 had been applied nondiscriminatorily. The Judge found that section 7116(a)(1) of the Statute states that it is an unfair labor practice to interfere with the exercise by an employee of the rights accorded by the Statute and there is no requirement that such interference be of a discriminatory nature.
IV. Positions of the Parties
A. Respondent's Exceptions
The Respondent excepts to the Judge's findings that: (1) it violated section 7116(a)(1) of the Statute when it denied OCC attorneys the opportunity to represent the Union in EEO proceedings; (2) the Statute supersedes Directive No. 6; (3) the Respondent's contention that the complaint should be dismissed because the prohibition of Directive No. 6 was uniformly applied in a nondiscriminatory manner is without merit; (4) the determination in Aberdeen that a ruling on compelling need cannot be made in an unfair labor practice proceeding is not applicable in this case; and (5) there is no compelling need for Directive No. 6. The Respondent's arguments in support of these exceptions are summarized below.
1. First Exception
The Respondent asserts that section 7102 limits the right of employees to act as representatives of a union to two situations--(1) to present the views of the union to agency heads, the Congress, or other appropriate authorities; and (2) to engage in collective bargaining with respect to conditions of employment--and representing an employee in a statutory appeal process is not encompassed within these two situations. Citing National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU v. FLRA), the Respondent argues that because the Union has no statutory obligation to represent unit employees in an administrative proceeding unrelated to the collective bargaining process, like the EEO proceeding in this case, the Respondent cannot be found to have improperly interfered with the employees' statutory rights.
The Respondent argues further that, even if section 7102 grants employees acting on behalf of a union the right to represent unit employees in a statutory appeal process, that right is restricted by section 7120(e) of the Statute. According to the Respondent, the Judge erred in failing to find that Joseph's representation of another unit employee in an EEO proceeding would violate the portion of section 7120(e) that precludes an employee from representing a labor organization if such representation would be "incompatible with the official duties of the employee." The Respondent argues that because Joseph is subject to Directive No. 6, for him to ignore the prohibition of the Directive "is in per se conflict with the official duties of his position, which include[] adhering to all the Rules of Conduct to which he is subject." Respondent's Brief in Support of Exceptions at 16-17 n.8.
The Respondent asserts that the prohibition in Directive No. 6 "against a Treasury employee representing a Treasury employee in an administrative proceeding is based on the [Treasury] General Counsel's determination that such representation, under applicable rules of professional conduct for attorneys, creates a conflict of interest or the appearance of a conflict of interest with a Treasury attorney's obligations to his or her client, the Department." Id. at 18. The Respondent contends that this determination is supported by Bachman v. Pertschuck, 437 F. Supp. 973 (D.D.C. 1977) (Bachman). According to the Respondent, the court in Bachman "noted that the possibility of conflict of interest arises whenever a person represents another against his present employer, for such representation automatically gives rise to the appearance of impropriety." Id.
2. Second Exception
The Respondent contends that the Statute and Directive No. 6 are not inconsistent and that the Judge erred in finding that the Statute supersedes the Directive. The Respondent asserts that section 7120(e) of the Statute and Directive No. 6 "complement each other[,] with the Statute talking of conflict and the Directive defining for purposes of the Statute when a conflict or an apparent conflict of interest exists for an IRS Chief Counsel attorney." Id. at 23.
3. Third Exception
The Respondent states that Directive No. 6 applies nondiscriminatorily to all attorneys in the bargaining unit, without regard to their status as Union representatives or their union activity. The Respondent asserts that, absent a showing of union animus or discrimination, the prohibition of Directive No. 6 cannot be found to violate the Statute.
4. Fourth Exception
The Respondent argues that, by finding that the Statute supersedes Directive No. 6, the Judge either has ruled that the Union has an unfettered right to choose its representative or has determined that he may disregard Directive No. 6 because it is a regulation for which there is no compelling need. The Respondent contends, in essence, that the Judge has permitted litigation over a compelling need issue in an unfair labor practice proceeding, contrary to Aberdeen. The Respondent argues that the Judge's decision to consider the compelling need issue should be overruled.
5. Fifth Exception
While maintaining that the issue of compelling need cannot properly be litigated in the unfair labor practice forum, the Respondent argues that if the Authority reaches this issue, it should find that there is a compelling need for Directive No. 6. The Respondent argues that agencies generally have a duty to ensure that their employee attorneys not engage in outside activities that would be incompatible with the full and proper discharge of their duties or would give rise to a conflict of interest. The Respondent contends that, in carrying out that duty on behalf of the Department, the Treasury's General Counsel determined that for attorneys in OCC to represent other employees in EEO matters would create a conflict of interest. According to the Respondent, the prohibitions in Directive No. 6 are essential "to the accomplishment of the mission and the execution of the functions of the Legal Division in a manner which is consistent with the requirement of an effective and efficient government." Id. at 36.
B. General Counsel's Opposition
The General Counsel of the Authority (GC) contends that the Judge's legal conclusions are correct and consistent with the Statute and Authority precedent. The GC contends that the Respondent is incorrect in asserting that no section 7102 rights are involved in this case. The GC asserts that in view of the Judge's findings of fact that (1) the parties' collective bargaining agreement provides Union stewards with official time to represent employees in the Respondent's EEO appeals procedure and (2) the Respondent's EEO regulations allow unit employees to be represented by the Union, Joseph was engaged in activity protected by section 7102 of the Statute when he sought to represent unit employees in the Respondent's EEO appeals procedure.
The GC also contends that the Respondent's argument that Joseph's representation of other employees would constitute a conflict of interest is without merit. In this regard, the GC notes that the Judge, as well as the Department's OEOP, found that Joseph's representation of other employees did not create a conflict with his job function.
Further, as to the Respondent's reliance on Directive No. 6, the GC asserts that the Judge properly found that the Statute prevails. Citing Authority precedent, the GC contends that "an agency's internal regulations are entitled to no deference if they are relied upon to preclude employees from exercising section 7102 rights[,]" and in this case Directive No. 6 "must yield to the Statute." GC's Brief at 3. The GC asserts that the Respondent's reliance on Bachman is misplaced, and states, among other things, that the court in that case noted that under 18 U.S.C. § 205, Federal employees are allowed to represent other employees before their agency in administrative proceedings.
The GC argues that the Judge correctly rejected the Respondent's argument that it did not commit an unfair labor practice because it applied its Directive in a nondiscriminatory manner. The GC states that the Judge correctly found that discriminatory motive or treatment is not required to establish a violation of section 7116(a)(1) of the Statute.
Finally, the GC asserts that the Judge correctly rejected the Respondent's compelling need argument because compelling need is a claim that an agency may assert as a bar to negotiations over a union proposal and does not apply to cases involving alleged violations of section 7116(a)(1) of the Statute.
C. Union's Opposition
The Union filed a motion to dismiss the exceptions on the ground that they do not state any grounds upon which they can be granted. The Union filed a brief in support of its motion to dismiss and in opposition to the exceptions. We will consider the motion to dismiss as part of the Union's opposition. The Union's arguments are summarized below with respect to each of the Respondent's exceptions.
1. First Exception
The Union contends that the Respondent errs in contending that the Union has no right under section 7102 to choose its own representatives when representing unit employees in EEO proceedings. The Union contends that section 7102 assures an employee the right to act as a representative of a union as a "distinct, inherent right, and under the right the employee may represent the union to the various authorities." Union's Brief at 11 (emphasis in original). The Union asserts that under the Respondent's narrow reading of section 7102, the Respondent would be permitted to interfere in the Union's selection of stewards involved in grievance arbitration, a right that is well-settled under Authority case law. Further, the Union argues that the Statute's legislative history and Authority precedent firmly establish a union's right to designate its own representatives in all representational matters, including matters relating to EEO appeals.
The Union acknowledges that the section 7102 right of an employee to act as a representative for a labor organization is subject to the section 7120(e) limitation that the representational activity would create no conflict of interest. The Union asserts, however, that the Respondent did not show that any such conflict exists in this case, and notes that the Department's OEOP as well as the Judge found that no such conflict exists.
The Union contends that the Respondent's reliance on Bachman is misplaced, particularly because the attorney in that case had a personal interest in the outcome of the suit as he was a member of the class of employees suing their common employer. The Union argues that if the Respondent's definition of conflict of interest were to prevail, no Federal employee could act for a union on behalf of any other employee in any matter involving the same agency. Further, the Union argues that the Respondent has failed to explain "how an attorney-employee's representation of a fellow bargaining unit member who brings an EEO complaint in an EEO appeal would constitute a conflict of interest, while representation of the same employee in the same EEO complaint filed instead as a grievance would not." Id. at 19.
2. Second Exception
The Union contends that, contrary to the Respondent's argument, the Statute and Directive No. 6 "are absolutely in conflict with each other because the Statute gives Chief Counsel attorneys the right to represent other Agency employees in EEO proceedings unless a conflict exists, and Directive Number 6 takes away that right by wrongly asserting that such a conflict does exist, when indeed no such conflict exists." Id. at 20. The Union contends that the Judge correctly found that Directive No. 6 conflicts with the statutory rights of employees and is superseded by the Statute.
3. Third Exception
The Union contends that in asserting that no unfair labor practice was committed because it applied Directive No. 6 in a nondiscriminatory manner, the Respondent has misread section 7116(a)(1) of the Statute. The Union argues that, as the Judge properly found, all that is required for a violation of section 7116(a)(1) is a finding, as made by the Judge, that an agency has interfered with the statutory rights of employees. The Union asserts that the Respondent has incorrectly read into this standard a requirement of discriminatory interference.
4. Fourth and Fifth Exceptions
The Union argues that the Respondent errs in contending that it did not commit an unfair labor practice because there is a "compelling need" for Directive No. 6. The Union argues that the Judge correctly found that, under Aberdeen, compelling need is a defense only in the context of a case concerning whether a duty to bargain exists, and this case does not involve any negotiations. The Union states that, accordingly, it will not address the Respondent's fifth exception regarding whether there is a compelling need for Directive No. 6 because that issue is irrelevant in this case.
V. Analysis and Conclusions
For the following reasons, we find that the Respondent violated section 7116(a)(1) of the Statute by enforcing Directive No. 6 to preclude Joseph from representing Foster on behalf of the Union in an EEO proceeding.
A. The Statutory Right of Employees to Act as Union Representatives
Section 7116(a)(1) of the Statute provides that it is an unfair labor practice for an agency "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under [the Statute]." If an agency applies its regulations so as to prohibit unit employees from exercising rights under section 7102 of the Statute, such action constitutes unlawful interference with those rights in violation of section 7116(a)(1). See U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 38 FLRA 567 (1990); and Department of Commerce, Bureau of the Census, 26 FLRA 719 (1987). See also U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 36 FLRA 705 (1990).
Under section 7102 of the Statute, employees have the right to "form, join, or assist" a labor organization. See generally U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701, 712 (1990) (United States Border Patrol); and Department of the Treasury, Internal Revenue Service, Louisville District, 11 FLRA 290, 297 (1983) (IRS, Louisville). Employee rights under section 7102 include the right "to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to the heads of agencies[.]"
We reject the Respondent's assertion that employees acting on behalf of a union do not have a right under section 7102 of the Statute to represent unit employees in a statutory appeal process. The statutory right of employees to serve as union representatives extends to any of the procedures whereby the union represents the views of the union and the unit employees concerning conditions of employment, including statutory appeals procedures. See, for example, United States Border Patrol; and IRS, Louisville. See also National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 73 (1991), petition for review filed sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25, 1991), decision on reconsideration of other matters, 40 FLRA No. 67 (1991) (Office of Chief Counsel).
This right of employees is not, however, without limitation. Under section 7120(e) of the Statute, an employee is precluded from "acting as a representative of a labor organization" where that activity "would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee." We find, therefore, that unless precluded by section 7120(e) or otherwise prohibited by law, unit employees have a statutory right to represent other unit employees on behalf of the union with respect to matters affecting conditions of employment, including EEO matters. An agency's interference with that statutory right is an unfair labor practice under section 7116(a)(1) of the Statute.
B. Joseph's Representation of the Complainant Would Not Result in a Conflict of Interest
In this case, the complainant chose the Union as his representative and the Union designated Joseph to represent the Union. Consequently, we find that enforcement by the Respondent of Directive No. 6 to prohibit Joseph from representing the Union in presenting an EEO complaint interfered with Joseph's right under section 7102 of the Statute in violation of section 7116(a)(1), unless such representation was prohibited by section 7120(e) because that representation would result in a conflict of interest or would be incompatible with his official duties. The Judge found, and we agree, that the Respondent failed to demonstrate that Joseph's representation was prohibited by section 7120(e).
As noted above, section 7120(e) precludes an employee from "acting as a representative of a labor organization" where that activity "would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee." In our view, section 7120(e) does not automatically preclude an employee from serving as a union representative for another agency employee in an EEO dispute against the agency, simply by virtue of the fact that both employees work in the same agency. Such a per se rule would be inconsistent with the statutory labor-management relations framework Congress enacted. Rather, in order to determine whether the proscription in section 7120(e) applies in a given case, a respondent's "conduct must be judged by the reasonableness of its actions in all the circumstances." Department of Health, Education and Welfare, Region VIII, Denver, Colorado, Social Security Administration, Region VIII, Denver, Colorado, and Social Security Administration, Denver District, Denver, Colorado, 6 FLRA 628, 638 (1981). In this case, we find that the Respondent has not demonstrated that Joseph had a conflict of interest in representing another employee on behalf of the Union in an EEO proceeding. We note, in this regard, that the Department's OEOP found that "there is no conflict between the assigned duties of Joseph's position and his representation of complainant" (Joint Exhibit 8).
The Respondent has not demonstrated why enforcement of Directive No. 6 as a per se rule barring attorneys, including Joseph, from serving as representatives in EEO proceedings is necessary to prevent conflicts of interest, while no such conflict would be present if the attorney served as a representative in a grievance proceeding involving an EEO matter. The Union claims, and the Respondent does not dispute, that Agency attorneys represent employees in grievances against the Agency. There is, however, no evidence in the record, nor does the Agency demonstrate, that the nature of an EEO proceeding, as distinguished from the negotiated grievance procedure, is such as to give rise to an inherent conflict of interest where an Agency attorney represents an Agency employee in a complaint against the Agency.
The Respondent also asserts that Joseph's employment as an Agency attorney creates an inherent conflict of interest, or an incompatibility with the duties of his position, with respect to his representation of any other Agency employee in an EEO complaint against the Agency because the client of any agency attorney is the agency itself. Citing Bachman, the Respondent argues that representation of another unit employee by an agency attorney in a complaint against the agency creates a conflict of interest, or the appearance of a conflict of interest, because the attorney is acting contrary to the interest of the client.
We find the Respondent's reliance on Bachman to be misplaced. Bachman differs from this case in several important respects. Bachman involved a class-action suit in which the attorney whose representation was found to create a conflict was a member of the same class of employees bringing suit against the Federal Government and stood to gain personally from the outcome of the suit. In contrast, the attorney in this case sought to represent an individual and was not a member of a class, and there is no evidence that he would have benefitted personally as a result of representing the individual in the EEO proceeding. See Internal Revenue Service, Los Angeles District Office, 15 FLRA 626, 651-52 (1984).
Also, as the court in Bachman specifically noted, 18 U.S.C. § 205 provides that a Federal employee may represent another Federal employee in an administrative proceeding if the representation is not inconsistent with the faithful performance of the representative's duties. Bachman, 437 F. Supp. at 976. Under 18 U.S.C. § 205, therefore, the fact that Joseph was acting as a representative in an administrative proceeding against the Agency would not constitute a conflict of interest unless that activity was inconsistent with the faithful performance of his duties.
Moreover, a significant difference between the instant case and Bachman is that the employee in Bachman was not acting in the capacity of a union representative and was not exercising a right under the Statute. While 18 U.S.C. § 205 governs the actions of Federal employees acting as personal representatives or attorneys for other Federal employees, that section does not deal with the right of Federal employees, under sections 7102 and 7120(e) of the Statute, to act as union representatives.
Finally, we find no merit in the Respondent's contention that because the Rules of Conduct governing Agency attorneys require the attorneys to adhere to all Agency policies and directives, including Directive No. 6, attorneys who fail to comply with those directives are acting in a manner that is inconsistent with the obligations of their positions. Because, as we found above, the Agency's position fails to take into account applicable statutory provisions, the Agency may not enforce Directive No. 6 in such a manner as to preclude representation unless such representation would be inconsistent with the faithful performance of an employee's duties. In this case, as we determined above, the Respondent has not shown that representation by Joseph is inconsistent with the faithful performance of his duties. We note, in this regard, that the Respondent's own EEO office determined that there was no conflict between Joseph's official duties and his representation of the complainant on behalf of the Union and ruled that Joseph be allowed to continue representing the complainant.
Accordingly, we conclude that Joseph's representation of the complainant is not precluded by section 7120(e) of the Statute and that the Respondent was not privileged, under section 7120(e), to enforce Directive No. 6 to prevent Joseph from that representational activity.
C. The Remaining Exceptions of the Respondent Are Without Merit
l. Directive No. 6 Is Not Consistent With the Statute
As to its claim that Directive No. 6 is consistent with the Statute, the Respondent argues that it has the right to define the activities that constitute a conflict of interest within the meaning of section 7120(e) and, therefore, that the definition contained in Directive No. 6 is legally sufficient. Contrary to the Respondent, we find that an agency cannot by regulation prohibit employee activity protected by section 7102 of the Statute unless, as stated above, the agency can demonstrate that the activity would result in a conflict of interest under section 7120(e). Because the Respondent has not demonstrated such a conflict of interest in this case, we reject the Respondent's claim that Directive No. 6 is consistent with the Statute.
2. The Compelling Need Issue Is Not Relevant In This Case
Relying on the Supreme Court's decision in Aberdeen, the Respondent alleges that the Judge erred by ruling on the issue of whether the Respondent had a compelling need for Directive No. 6. We note that, consistent with the Court's holding in Aberdeen, the Authority has held that "when an agency contends that a proposal is nonnegotiable because the proposal conflicts with an agency rule or regulation for which a compelling need exists, the exclusive forum for resolving that issue is through the procedures provided for by section 7117(b) of the Statute." Federal Emergency Management Agency, 32 FLRA 502, 506 (1988). However, the Judge did not make a compelling need determination as to Directive No. 6. Rather, the Judge observed that Aberdeen involved a question of the negotiability of a proposal that arose in the context of an alleged failure of the duty to bargain under section 7117, in violation of section 7116(a)(5) of the Statute. He found that, as this case involves the rights of employees to act as union representatives under sections 7102 and 7120(e) of the Statute, the Agency may not raise the issue of compelling need.
We agree. This case does not involve the negotiability of a proposal alleged to conflict with an agency regulation. Rather, the question here is whether the Respondent violated section 7116(a)(1) of the Statute by enforcing Directive No. 6 so as to prohibit Joseph from acting as a representative of the Union in proceedings under the Respondent's EEO complaint procedure. As we have found above that the Respondent's action is inconsistent with the Statute, the issue of compelling need for the Directive is not relevant.
Moreover, we note that in Office of Chief Counsel, the Agency alleged that a compelling need exists for this same prohibition of the Directive in arguing that a provision requiring official time for representation of employees in EEO matters was nonnegotiable. Specifically, the Agency argued that Directive No. 6 was "essential to the accomplishment of its mission or functions because the regulation prevents real or apparent conflicts of interest." 39 FLRA at 72. In holding the provision negotiable, we found that the participation of attorneys as Union representatives in administrative proceedings safeguards the public interest. We rejected the argument that such participation impaired the ability of attorneys to carry out the functions of their job and we found that there was no compelling need for the Directive as it applied to representation of fellow employees in administrative proceedings when designated by the Union. Id. at 73.
3. The Union's Duty Under Section 7114(a) Is Not Determinative of the Employees' Rights
We also reject the Respondent's argument, citing NTEU v. FLRA, that because the Union has no statutory duty under section 7114(a) of the Statute to represent employees in EEO proceedings, employees have no right under section 7102 to serve as representatives of the Union in such proceedings. It is clear that the Union has a right to act for and on behalf of employees in EEO matters. See U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 362, 372 (1990). The issue is not whether the Union has a duty to represent employees in EEO proceedings, but whether employees have a right under section 7102 of the Statute to represent other employees on behalf of the Union in an EEO proceeding where the Union has chosen to represent those employees. Accordingly, the Union's duty under section 7114(a) is not determinative of the employees' rights.
4. Discrimination Is Not Necessary to a Finding of a Violation of Section 7116(a)(1)
We reject the Respondent's argument that, because General Counsel Directive No. 6 has been applied without discrimination to all attorneys in the bargaining unit, no violation of section 7116(a)(1) of the Statute can be found. Although discriminatory or disparate treatment is relevant in determining whether there has been a violation of section 7116(a)(2) of the Statute, we agree with the Judge that no such showing is necessary to support a finding that section 7116(a)(1) has been violated by the Respondent's interference with employees' rights. See generally Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 895-96 (1990).
In sum, we conclude that by enforcing Directive No. 6 so as to prohibit Joseph from acting as a representative of the Union in proceedings under the Agency's EEO complaint procedure, the Respondent interfered with its employees' rights assured by section 7102 in violation of section 7116(a)(1) of the Statute. Accordingly, we will issue the following appropriate remedial order.
VI. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service National Office shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in section 7102 of the Statute, by enforcing General Counsel Directive No. 6 so as to prohibit employees from acting as representatives of the National Treasury Employees Union in EEO proceedings where employees have selected the National Treasury Employees Union as their representative.
(b) In any like or related manner, interfering with, restraining, or coercing its 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) Permit Warren Joseph and other employees to represent the National Treasury Employees Union in EEO proceedings where employees have selected the National Treasury Employees Union to act as their representative, where there is no conflict of interest under applicable law.
(b) Post at its facilities where employees in the bargaining unit are located 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 Chief Counsel, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in section 7102 of the Statute, by enforcing General Counsel Directive No. 6 so as to prohibit employees from acting as representatives of the National Treasury Employees Union in EEO proceedings where employees have selected the National Treasury Employees Union as their representative.
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 permit Warren Joseph and other employees to represent the National Treasury Employees Union in EEO proceedings where employees have selected the National Treasury Employees Union to act as their representatives, where there is no conflict of interest under applicable law.
(Agency)
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, Washington, D.C. Region, whose address is: 1111 - 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)