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43 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. AIR FORCE, LORING AIR

FORCE BASE, LIMESTONE, MAINE

(Respondent/Activity)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 2943

(Charging Party)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 2943

(Respondent/Union)

and

OTIS J. CLAIR, JR.

(Charging Party)

1-CA-90364

1-CO-90030

DECISION AND ORDER

January 24, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the General Counsel and cross-exceptions filed by the Union and the Activity to the attached decision of the Administrative Law Judge. Each party also filed an opposition to the others' exceptions and cross-exceptions.

The consolidated complaint alleges that Respondent Activity violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) and Respondent Union violated section 7116(b)(1), (2), and (8) of the Statute by entering into and implementing a settlement agreement providing environmental differential pay (EDP) to unit employees for exposure to asbestos.

In Case No. 1-CO-90030, the Judge concluded that Respondent Union violated section 7116(b)(1), (2), and (8) of the Statute by discriminating in the distribution of EDP based on considerations of membership and status in the Union. In Case No. 1-CA-90364, the Judge found that Respondent Activity violated section 7116(a)(1) and (2) of the Statute by permitting preference in payment of EDP to be given to Union members and officers.

Pursuant to section 2423.29 of the Authority's Rules and Regulation 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. On consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with this decision.

II. Background

Following is a summary of the facts, which are fully set forth in the Judge's decision.

The Union filed a grievance claiming that certain employees were entitled to EDP for exposure to asbestos. To resolve the grievance, the parties used procedures employed to resolve an earlier, similar grievance. In particular, the Activity developed, and the Union distributed, a questionnaire asking employees whether, when,⁽¹⁾ and where they had been involved in asbestos-related work. Completed questionnaires were returned to the Union and the Activity by 63 employees.

Next, the Activity conducted an audit to identify and establish exposure levels for asbestos-related work. As work records were not available for any relevant time period, the Activity used Fiscal Year 1987 records and the questionnaires to assign a number of "allowable" hours of asbestos exposure to each individual who completed a questionnaire. Judge's Decision at 5.

Subsequently, the parties verbally agreed to settle the grievance for a lump sum of $125,000. The parties also verbally agreed that the Union would determine the amount of money to be disbursed to each claimant. Thereafter, Union President Labbe submitted to the Activity a list of claimants and the amounts of EDP proposed to be paid to each of them. The list did not include any supervisors. The list also did not include a unit employee, J. Gagnon, who had allowable hours of exposure. However, the list included two individuals, Union Chaplain Keaton and G. Conroy, who claimed no allowable hours of exposure. The list showed that Union President Labbe and Vice-President R. Gagnon together would receive more than 10 percent ($6,500 each) of the lump sum.

The list was rejected by the Activity because it did not include supervisors. Subsequently, a second list was prepared by Vice-President R. Gagnon, without involvement of Union President Labbe.⁽²⁾ The second list, which provided EDP to supervisors,⁽³⁾ was accepted by the Activity and the parties executed a written settlement agreement providing that the $125,000 "was 'to be divided by the [U]nion among the grievants . . . .'" Id. at 6-7. The Activity then distributed the EDP payments directly to the claimants.

The parties did not discuss the payouts on the second list and, although Activity officials discussed Union President Labbe's and Vice-President R. Gagnon's shares, the Activity did not discuss this matter with the Union. The Union did not post or distribute the payment list.

III. Administrative Law Judge's Decision

A. Case No. 1-C0-90030

The Judge noted the General Counsel's claim that the Union's actions constituted discrimination based on Union membership or status and discrimination "flowing from disparate treatment grounded in arbitrary conduct, hostility or bad faith[.]" Judge's Decision at 7.

The Judge concluded that the Union violated section 7116(b)(1), (2) and (8) of the Statute by allocating EDP "based upon favoritism towards those holding Union office." Id. at 16. In particular, the Judge determined that, based on EDP payments to Union President Labbe, Vice-President R. Gagnon, and Chaplain Keaton, the Union "failed to represent all unit employees without regard to union membership, and, through the use of power delegated to it over allocation of [EDP], caused the Agency to discriminate against employees because of their exercise of their rights 'to form, join or assist any labor organization, or refrain from any such activity.'" Id. at 19.

The Judge also determined that the General Counsel did not establish that unit employees "were treated differently in deliberate and unjustifiable ways, on the basis of factors other than membership considerations." Id. at 14. In the Judge's view, the General Counsel's "effort to prove the violations was in every instance based on membership considerations." Id. at 7. The Judge concluded that the General Counsel "neither pressed nor proved that the [Union] treated anyone in an unlawfully arbitrary way for reason[s] unconnected with Union membership or office." Id. at 16. The Judge noted that Union President Labbe did not appear or testify at the unfair labor practice hearing. However, the Judge declined to draw an adverse inference from Labbe's failure to testify because, in the Judge's view, Labbe was not under the Union's control and because the Union, which was "represented by a layman[,] failed to subpena, but did request Labbe's appearance and testimony." Id. at 18.

B. Case No. 1-CA-90364

The Judge concluded that the Activity violated section 7116(a)(1) and (2) of the Statute. The Judge found that the Activity gave the Union "complete control over distribution of EDP." Id. at 19. In the Judge's view, as Union officers received favorable treatment based on their status as officers, the Activity, by its agreement with the Union and effectuation of that agreement, "discriminated against the other claimants concerning employment conditions in a manner which unlawfully encouraged membership in the [Union]." Id.

The Judge rejected the Activity's arguments that any interference by it with the Union's proposed distribution of the EDP would have constituted unlawful interference with internal Union affairs. The Judge found that these arguments "confus[ed] conditions of employment with internal union affairs." Id. at 20. The Judge concluded that EDP was "obviously a condition of employment rather than a private affair of the Union's . . . ." Id.

C. Remedy

The Judge found that the Activity and the Union were jointly liable for remedying the violations. The Judge ordered the Respondents to recalculate the EDP due Union President Labbe, Vice-President R. Gagnon, and Chaplain Keaton and to make-whole employees whose shares were reduced in order to unlawfully compensate those Union officers.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's failure to conclude that the Union unlawfully discriminated in the distribution of EDP based on considerations other than Union membership or office. The General Counsel claims that the record establishes that the distribution was "permeated with instances of deliberate, arbitrary and totally unexplained differences between similarly situated employees." Brief in Support of General Counsel's Exceptions at 3 n.1. The General Counsel argues that the Union's failure to explain the distribution establishes that it violated the Statute.

The General Counsel also excepts to the Judge's refusal to draw an adverse inference from Union President Labbe's failure to testify as well as to the Judge's recommended remedy. The General Counsel asserts that "the Union's entire distribution was tainted not only by unlawful considerations, but by arbitrariness." Id. at 18. The General Counsel argues that the parties should be required to recalculate the entire $125,000 and make unit employees whole for losses they suffered as a result of the violations.

B. Activity's Cross-Exceptions

The Activity contends that it properly could have paid the settlement as a lump sum to the Union without violating the Statute and the fact that it agreed as "a courtesy" to pay the grievants directly did not result in any violations. Activity's Cross-Exceptions at 7. The Activity also contends that the labor relations officer who negotiated the settlement agreement did not have authority to disburse Government funds and could not delegate such authority to the Union.

Next, the Activity argues that the Judge erred in finding that the Activity and the Union are jointly liable for the unlawful payments to Union officers. The Activity asserts that if it had interfered with the Union's distribution of EDP, it would have committed an unfair labor practice.

Finally, the Activity contends that the Judge erred by failing to specify and allocate liability between the Union and the Activity. According to the Activity, specific liability may not properly be determined during compliance proceedings.

C. Union's Cross-Exceptions

The Union argues that it did not violate the Statute because it reasonably relied on the Activity to ensure that EDP payments were made properly. The Union maintains that the Activity had complete control over the final payments to employees and that the Union's actions were merely negligent.

D. General Counsel's Opposition to Activity's Cross-Exceptions

The General Counsel argues that the Activity's cross-exceptions constitute a repetition of arguments the Activity previously made to the Judge and provide no basis for reversing the Judge's conclusion that the Activity violated the Statute.

E. Activity's Opposition to General Counsel's Exceptions

The Activity argues that it is not responsible for the Union's actions because, by law, the Union acts as the agent of employees, not the Activity. The Activity also argues that, even if it is liable, it may not make further payments until the $125,000 previously paid is returned. The Activity argues that as the entire amount of the agreed-upon liability has been paid, any additional payments would violate the Anti-Deficiency Act.⁽⁴⁾

F. Activity's Opposition to Union's Cross-Exceptions

The Activity rejects the Union's argument that the Activity is liable for the unlawful EDP payments. The Activity argues that the Union was acting on behalf of the EDP claimants and, as their agent, was responsible for proper distribution of EDP.

G. Union's Opposition to the General Counsel's Exceptions and the Activity's Cross-Exceptions

The Union argues that the Judge properly dismissed aspects of the consolidated complaint and that the General Counsel's exceptions do not demonstrate that the Judge erred. In addition, the Union argues that the Judge properly refused to draw an adverse inference from Union President Labbe's failure to testify at the unfair labor practice hearing. The Union asserts that the General Counsel could have subpenaed Labbe, but did not do so.

The Union claims that the Activity's cross-exceptions provide no basis for reversing the Judge's finding that the Activity violated the Statute.

V. Analysis and Conclusions

A. Case No. 1-CO-90030

Section 7114(a)(1) of the Statute provides:

A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An 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.

By this provision, "Congress adopted for government employee unions the private sector duty of fair representation." National Treasury Employees Union v. FLRA, 800 F.2d 1165, 1171 (D.C. Cir. 1986). Consistent with the plain wording of section 7114(a)(1) of the Statute, and the scope of the duty of fair representation in the private sector, union representational activities grounded in the union's status as exclusive representative must be undertaken without discrimination and without regard to labor organization membership.

Where it is alleged that a union failed to comply with section 7114(a)(1) by discriminating on the basis of membership in the union, the Authority first determines whether the union's disputed activities were undertaken in the union's role as exclusive representative of unit employees. See generally Antilles Consolidated Education Association, (OEA/NEA) San Juan, Puerto Rico, 36 FLRA 776, 786-89 (1990) (Antilles). See also Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908, 918 (1987). If the activities were undertaken in that role, then the duty of fair representation under section 7114(a)(1) "attache[s]" and the Authority determines whether the union unlawfully discriminated on the basis of union membership. Antilles, 36 FLRA at 791.

Where union membership is not a factor, the standard for determining whether a union has violated section 7114(a)(1) is whether the union "deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit." National Federation of Federal Employees, Local 1453, 23 FLRA 686, 691 (1986) (NFFE). That is, the union "must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee." Id. It is clear, in this regard, that the union's actions "must amount to more than mere negligence or ineptitude[.]" Id. See also American Federation of Government Employees, Local 1457, AFL-CIO, 43 FLRA 575 (1991).

As noted previously, the Judge concluded that the EDP payments to Union President Labbe, Vice-President R. Gagnon, and Chaplain Keaton were based on their status as Union officers and, by its actions in connection with those payments, the Union failed to represent all unit employees without regard to membership or status in the Union.⁽⁵⁾ We agree.⁽⁶⁾

With respect to Union President Labbe and Vice-President R. Gagnon, the record supports the Judge's undisputed finding that they "took advantage of their offices . . . ." Judge's Decision at 16. Moreover, Vice-President Gagnon formulated the second, final list despite his belief that his and Labbe's payments were improper. See Transcript at 205, 228, 272-73, 295. In fact, based on these payments, Gagnon was "shocked" when the Agency accepted the second list, id. at 239, and after the list was accepted, Gagnon tried to shield the list from disclosure to unit employees. Id. at 266-67. Accordingly, we reject the Union's argument that its actions in this regard constituted only "simple negligence." Union's Cross-Exceptions at 6.

Similarly, we reject the Union's argument that the Judge erred because there is no record evidence attributing Union Chaplain Keaton's payment to his Union office. Instead, we agree with the Judge that a "prima facie case exists for finding that Keaton's office explains, in the absence of any other apparent reason, the decision to compensate him for exposure he never even claimed to have experienced." Judge's Decision at 18. We note, in this regard, Vice-President Gagnon's concession that Keaton "was not entitled to anything[.]" Transcript at 207.⁽⁷⁾

The Judge's findings with respect to Labbe, R. Gagnon, and Keaton, based on record evidence, support the Judge's conclusion that the Union failed to comply with section 7114(a)(1) of the Statute by discriminating in the payment of EDP on the basis of membership and status in the Union and, thereby, violated section 7116(b)(1), (2), and (8) of the Statute.⁽⁸⁾ In this regard, there is no support for the Union's argument that, as the Activity distributed the EDP payments and could otherwise have influenced the formulation of the list of payouts, the Activity alone should be found to have violated the Statute. Instead, the record is clear that the parties agreed that the $125,000 settlement was to be "divided by the [U]nion . . . ." Judge's Decision at 6-7. Vice-President Gagnon acknowledged, in this connection, that "the list [the Union] came up with and gave to management was [the Union's] responsibility." Transcript at 270-71.

Similarly, we reject the Union's argument that it did not violate the Statute because it reasonably relied on the Activity to ensure that the EDP payments were lawful. As noted previously, the Union agreed to assume, and in fact assumed, the responsibility to divide the settlement. Also as noted previously, the division, at least with respect to Labbe, Gagnon, and Keaton, was made despite Vice-President Gagnon's belief that the payments to these individuals were improper. Although Vice-President Gagnon testified that he "really believed that if there was anything wrong with that list, management would look it over and they would kick it back," Transcript at 238, he testified also that he was "hoping" that the Activity would reject the list, id. at 238-39, 274, and was "shocked" when the list was accepted. Id. at 239. In these circumstances, the Union's argument that the Activity alone should be held responsible for the violation of the Statute is meritless.

We also find, contrary to the Judge, that the Union violated section 7116(b)(1), (2) and (8) of the Statute by violating its duty of fair representation in a manner unconnected to considerations of union membership or status. We reject, at the outset, the Judge's conclusion that the General Counsel did not "press[]" such violation. Judge's Decision at 16. Instead, it is clear that the General Counsel argued both at the hearing, Transcript at 361-62, and in its post-hearing brief to the Judge, Post-Hearing Brief at 2, that such a violation occurred. In addition, as noted by the Judge, the unfair labor practice complaint alleged "discrete" violations of the Statute, including discrimination based on Union membership or status and discrimination unconnected to such membership. Judge's Decision at 7.

As noted above, when union membership is not a factor, a union violates its duty of fair representation if the union acts "arbitrarily or in bad faith" and the action results in "disparate or discriminatory treatment of a bargaining unit employee." NFFE, 23 FLRA at 691. Applying this standard to the facts and circumstances of this case, we find that the Union violated the Statute. We note two things.

First, as is evident from the Appendix, there are substantial discrepancies between the amounts of EDP paid to various unit employees, pursuant to the Union's second list, and the number of allowable hours of exposure of those employees. For example, although five unit employees (Chasse, R. Clair, Dahlgren, Koch, and R. Mulherin) were each credited with approximately 3,500 allowable hours of exposure to asbestos, the EDP payments to these employees ranged from $300 to $3,500. Similarly, although two unit employees were each credited with approximately 2,500 allowable hours of exposure, one employee (H. Boucher) received $4,000 more than the other (Ala). Two other employees both received $5,300 even though one employee (Canning) had 3,792 more allowable hours of exposure that the other (H. Boucher).

Second, the discrepancies are unexplained. We note, in this regard, that the record is devoid of any explanation of the basis or bases on which the first list was prepared. President Labbe, who prepared the first list, did not testify at the unfair labor practice hearing.⁽⁹⁾ Moreover, although Vice-President Gagnon speculated that Labbe developed the list "not using the questionnaires or the audit" but, instead, Labbe used "his own judgment and his own discretion[,]" Transcript at 206, Vice-President Gagnon testified also that he did "not know" the bases on which the first list was developed. Id. at 226.

It is clear that the first list formed the basis for the second, final list. In fact, Vice-President Gagnon testified that he simply "recopied some" of the first list to "come up with some money for the supervisors." Id. at 216. Vice-President Gagnon provided no reasons for the changes he made in the second list, however. For example, when asked why he reduced Mr. Apodaca's EDP payment by $2,000, Vice-President Gagnon first testified that he could "[]not explain why [he] did that." Id. at 217. Vice-President Gagnon then testified that Apodaca's share was reduced because he questioned Apodaca's exposure to asbestos. With respect to the other changes, however, Vice-President Gagnon testified as follows:

A -- I am telling you the truth . . . . And why I took money off the other folks, I cannot remember why. I just arbitrarily took money off these people to come up with the [$]3200.

Q -- And in addition to that, you took some additional money, about $1200 or so, away from other people, and you passed it around to different people. You got any explanation why you did that?

A -- No, I do not. That was just arbitrarily done.

Id. at 219.

Arbitrary conduct on the part of a union can violate the duty of fair representation. See, for example, Air Line Pilots Association, International v. O'Neill, 111 S. Ct. 1127, 1130 (1991) ("a union breaches its duty of fair representation if its actions are either 'arbitrary, discriminary, or in bad faith'") (citation omitted) (ALPA v. O'Neill); Vaca v. Sipes, 386 U.S. 171, 177 (1967) ("[T]he exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to . . . avoid arbitrary conduct."). See also General Truck Drivers, Warehousemen, Helpers and Automotive Employees, Local 315, 217 NLRB 616, 617 (1975) (Local 315), aff'd sub nom. NLRB v. General Truck Drivers, Warehousemen, Helpers and Automotive Employees, Local 315, 545 F.2d 1173 (9th Cir. 1986) ("Another way this elusive element of the duty of fair representation has been authoritatively described is the avoidance of arbitrary conduct.") (citation omitted).

However, "a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a 'wide range of reasonableness,' . . . as to be irrational." ALPA v. O'Neill, 111 S. Ct. at 1130 (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)). We note, in this regard, that unexplained conduct can constitute arbitrary conduct that violates the duty:

[I]f a duty to avoid arbitrary conduct . . . means anything, it must mean at least that there be a reason for action taken. Sometimes the reason will be apparent, sometimes not. When it is not the circumstances may be such that we will have no choice but to deem the conduct arbitrary if the union does not tell us what it is.

Local 315, 217 NLRB at 618. See also Griffin v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 469 F.2d 181, 183 (4th Cir. 1972) ("Without any hostile motive . . . a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may . . . [act] for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority."); Local 3036, New York City Taxi Drivers Union, SEIU, AFL-CIO, 280 NLRB 995, 996 (1986) (National Labor Relations Board held that union violated duty of fair representation by manner in which it processed a grievance because the union presented no evidence, and the record did not suggest, that it acted reasonably).

In our view, the Union's actions are "so far outside a 'wide range of reasonableness,' . . . as to be irrational." ALPA v. O'Neill, 111 S. Ct. at 1130. Put simply, the record before us demonstrates that, apart from the EDP distributions to the three Union officers discussed previously, the disputed EDP was divided by the Union among employees based on unexplained and concededly arbitrary changes to an already unexplained list, resulting in disparate and discriminatory treatment of unit employees. These actions, in our view, amounted to more than mere negligence or ineptitude and constituted a breach of the Union's duty of fair representation under section 7114(a)(1) of the Statute, in violation of section 7116(b)(1), (2), and (8).⁽¹⁰⁾ See n.8.

B. Case No. 1-CA-90364

We agree with the Judge, for the reasons stated by the Judge, that Respondent Activity violated section 7116(a)(1) and (2) of the Statute by its actions in connection with the distribution of EDP.

We reject as misplaced the Activity's arguments that it should not be found to have violated the Statute because it could have paid the settlement as a lump sum to the Union. The Activity did not pay, or seek to pay, the settlement directly to the Union. We likewise reject as misplaced the Activity's argument that it did not violate the Statute because its representative who negotiated the settlement with the Union did not "have the authority to make decisions relating to the disbursement of [G]overnment funds[]" and could not delegate such authority to the Union. Activity's Cross-Exceptions at 6-7. The Union did not disburse Government funds and there is no contention that the Union was delegated authority to do so. Finally, we reject the Activity's argument that the Union should be held solely responsible for the EDP distribution because it had no authority to interfere with the Union's proposed distribution. At the time it executed the final agreement and disbursed the EDP, the Activity already had rejected one proposed distribution. Moreover, the Activity was aware that the final distribution might be unlawful. In fact, in reviewing the second list, Activity officials specifically discussed and questioned, among themselves, Union President Labbe's and Vice-President Gagnon's shares and "suspected an impropriety at that time." Transcript at 92. Moreover, the Activity's representative acknowledged that, with respect to individuals who had no allowable asbestos exposure, "there was no lawful basis to pay them a penny[.]" Id. at 63. No authority is cited, and none is apparent, for finding that the Activity did not violate the Statute in these circumstances.

C. Remedy

The Judge's recommended order provides that the Respondents are "jointly and severally liable for making whole those [employees] whose shares were reduced in order to unlawfully compensate Labbe, Gagnon and Keaton." Judge's Decision at 21.

We agree that the Respondents are jointly and severally liable for making affected employees whole. We note, in this regard, that no basis is argued or apparent for finding one Respondent primarily and the other secondarily liable. Compare Sanford Home for Adults, 280 NLRB 1287 (1986) (Board apportioned primary and secondary liability for violation resulting from employer's unlawful recognition of union and subsequent remission to union of money deducted from employee wages); Exxon Company, U.S.A., 253 NLRB 213 (1980) (Board held that union was primarily liable for violation in connection with unlawful imposition of service fee in connection with insurance plan because the union solely administered the plan). Moreover, as both Respondents knew, or should have known, that their actions were unlawful, joint and several liability is appropriate. See Wolf Trap Foundation for the Performing Arts, 287 NLRB 1040, supplemental decision as to other matters, 289 NLRB 760 (1988).

We disagree with the Judge, however, that the make-whole remedy should be limited to those employees who were affected by the unlawful payments to Union President Labbe, Vice-President R. Gagnon, and Chaplain Keaton. As discussed previously, the remainder of the EDP distribution was unexplained and arbitrary. In these circumstances, we conclude that the entire distribution must be recalculated.

Accordingly, we will direct the Respondents to recalculate the EDP distribution and make employees whole. In so doing, we reject the Activity's argument that the Judge "erred in failing to establish the amount of liability and in failing to allocate liability between the [p]arties." Activity's Cross-Exceptions at 12. With respect to the latter assertion, the Judge, and the Authority, have specified joint and several liability. Accordingly, liability has been allocated between the parties. With respect to the former assertion, there is no support for the argument that it is necessary in these proceedings to determine amounts of backpay due individual employees. Instead, in agreement with the Judge, we conclude that these matters may appropriately be resolved in compliance proceedings.⁽¹¹⁾

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:

A. U.S. Air Force, Loring Air Force Base, Limestone, Maine shall:

1. Cease and desist from:

(a) Encouraging or discouraging membership in a labor organization by unlawfully discriminating in the payment of environmental differential pay (EDP).

(b) Interfering with, restraining or coercing employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

(c) 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 Statute:

(a) Together with the American Federation of Government Employees (AFGE), Local 2943, recalculate the amount of the $125,000 EDP grievance settlement due each claimant and make whole those employees who suffered a reduction in EDP as a result of the unlawful distribution by reimbursing them for their loss, with interest, from April 12, 1989 until payment is made in compliance with this Order.

(b) Post at its facilities at Loring Air Force Base, Limestone Maine, where bargaining unit members represented by AFGE, Local 2943 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 Commander, Loring Air Force Base and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and 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, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

B. The American Federation of Government Employees, Local 2943, shall:

1. Cease and desist from:

(a) Failing to fairly represent bargaining unit employees by unlawfully discriminating in the payment of EDP to the employees.

(b) Causing or attempting to cause the Loring Air Force Base to unlawfully discriminate against employees in connection with the payment of EDP.

(c) Interfering with, restraining or coercing employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

(d) 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) Together with the Loring Air Force Base, recalculate the amount of the $125,000 EDP grievance settlement due each claimant and make whole those employees who suffered a reduction in payment of EDP as a result of the unlawful allocations, by reimbursing them for their loss, with interest, from April 12, 1989, until payment is made in compliance with this Order.

(b) Post at its business offices and in all places where notices to employees in its bargaining unit are customarily posted copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President of Local 2943, AFGE and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Submit appropriate signed copies of the Notice to the Commander, Loring Air Force Base for posting in conspicuous places where unit employees represented by AFGE Local 2948 are located. Copies of the Notice should be maintained for a period of 60 consecutive days from the date of posting.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office , Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT encourage or discourage membership in a labor organization by unlawfully discriminating in the payment of environmental differential pay (EDP).

WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

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 together with the American Federation of Government Employees (AFGE), Local 2943, recalculate the amount due each claimant of the $125,000 EDP grievance settlement and make whole those employees who suffered a reduction in payment of EDP as a result of our unlawful allocations, by reimbursing them for their loss, with interest, from April 12, 1989, until payment is made in compliance with this Order.

________________________
(Activity)

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, Region I, whose address is: 10 Causeway Street, Room 1017A, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.

NOTICE TO OUR MEMBERS AND OTHER EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT fail to fairly represent bargaining unit employees by discriminating in the payment of environmental differential pay (EDP).

WE WILL NOT cause or attempt to cause the Loring Air Force Base to discriminate against employees in connection with the payment of EDP.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

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

WE WILL represent the interests of all employees in the unit we represent without discrimination and without regard to labor organization status or membership.

WE WILL together with the Loring Air Force Base, recalculate the amount due each claimant of the $125,000 EDP grievance settlement and make whole those employees who suffered a reduction in payment of EDP as a result of the unlawful allocations, by reimbursing them for their loss, with interest, from April 12, 1989 until payment is made in compliance with this Order.

___________________
(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, Region I, whose address is: 10 Causeway Street, Room 1017A, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.

APPENDIX

Claimant	Allowable Hours	Proposed Payouts	(in $)
		List 1	List 2
	* = Supervisor
	CAPITALIZATION	= Union Members
	Bold = Union Officer
ALA	2,500	1,000	1,300
*Alexander	3,000	0	1,000
Apodaca	7,857	5,000	3,000
ASHFIELD	4,400	1,000	same
BERNIER,C.	2,064	700	1,100
*Bernier, R.	273	0	500
Bernier, U.	1,515	1,400	same
Berube, F.	5,376	2,000	same
*Bosse	4,900	0	300
BOUCHER, H.	2,496	5,300	same
BOUCHER, R.	6,500	2,600	same
BURDICK	5,143	3,600	same
CANNING	5,788	5,300	same
Caron(*)	1,500	1,000	same
CARROLL	6,900	3,000	same
CAVAGNARO	170	300	same
CHAPMAN	2,252	2,000	same
Chasse	3,500	300	same
*Clair, O.	3,000	0	300
CLAIR, R.	3,533	2,100	same
CLARK	4,680	0	500
CONDON	4,000	1,500	same
CONROY	0	4,400	3,000
COTE, D.	5,500	5,300	same
COTE, W.	2,860	1,500	same
*Cyr, J.(**)	286	0	same
Cyr, J.R.	0	0	same
DAHLGREN	3,429	3,500	same
*Dempster	5,000	0	300
DOAK	488	1,100	same
Doody	6,923	1,000	same
DOUCETTE	3,000	2,000	same
FOX	250	100	same
GAGNON, J.	857	0	same
GAGNON, R.	2,995	6,500	same
GODFREY	1,040	3,000	2,000
JOHNDRO	0	0	same
KEATON	0	2,000	same
KOCH	3,529	2,000	same
LABBE	5,333	6,500	same
*Leighton	4,800	0	300
MALENFANT	2,273	1,000	same
*Marquis	2,250	0	same
MCCROSSIN	10,464	2,500	same
MCDONALD	1,320	1,000	same
MICHAUD	5,727	3,300	same
MORROW	6,000	5,300	same
MULHERIN, A.	5,232	1,000	same
MULHERIN, R.	3,566	1,500	2,000
Neal	936	300	same
NELSON	1,333	2,000	same
PELKEY	2,333	1,500	same
PERREAULT	9,000	3,000	same
PHELAN	2,084	1,000	same
RAYNER	5,417	2,100	same
ROY	3,200	2,000	same
SAUCIER	2,308	4,100	same
TARDIE, L.	10,000	3,000	same
TARDIE, M.	7,500	3,500	same
VETSCH	4,560	2,000	same
WALKER	1,744	1,000	same
WALLACE	5,232	1,500	same
WRIGHT	7,954	5,400	same

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

1. The parties agreed that employees were entitled to EDP only for exposure during the period of September 30, 1980 to September 30, 1986. The questionnaire did not include that information, however.

2. The attached Appendix lists the following information for each of the individuals who completed a questionnaire: (1) the number of allowable hours of asbestos exposure identified through the Agency's audit (G.C. Exhibit 8); (2) whether the individual is a supervisor, Union member, and/or Union officer (Transcript at 162-68); and (3) the EDP payments proposed on the first (G.C. Exhibit 11) and second (G.C. Exhibit 12) lists.

3. It appears that some if not all of the supervisors were unit employees during all or part of the relevant exposure period. See Transcript at 264-65, 276.

4. The Activity incorrectly cites 31 U.S.C. º 665 as the Anti-Deficiency Act. That provision was replaced by 31 U.S.C. º 1341, which provides, in pertinent part, that an officer of the U.S. Government may not "make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation[.]" 31 U.S.C. º 1341(a)(1)(A).

5. As no exceptions were filed to the Judge's failure to find a violation of the Statute in connection with payments to other Union officers, we will address only the payments to Labbe, R. Gagnon, and Keaton.

6. It is undisputed that the Union's activities were undertaken in its role as exclusive representative.

7. In view of this concession and the record as a whole, we reject as unsupported the Union's suggestion that Keaton's payment was based on "the exposure of his family to his contaminated clothing[.]" Brief in Support of Union's Cross-Exceptions at 6. Although this argument was made in connection with the payment to Gilbert Conroy, see Judge's Decision at 18, there is no evidence that any such argument was advanced, or is supportable, with respect to Keaton.

8. It is undisputed that a failure to comply with section 7114(a)(1) in the circumstances of this case would violate not only section 7116(b)(8) of the Statute but also section 7116(b)(1) and (2).

9. In view of our decision, we find it unnecessary to determine whether the Judge erred in failing to draw an adverse inference from Labbe's failure to testify.

10. We note that the Union's obligations under section 7114(a)(1) of the Statute extend only to bargaining unit employees. Moreover, the General Counsel does not contend that either Respondent violated the Statute in connection with EDP distributions to supervisors. See Transcript at 81-82.

11. Other than the Activity's unsupported assertion, there is no basis on which to conclude that the Anti-Deficiency Act applies in this situation so as to limit the Activity's liability. See n.4.

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FOOTNOTES FOR APPENDIX:

*/ The record does not indicate the status of this employee.

**/ The record indicates that either J. Cyr or J.R. Cyr was a Union member. Transcript at 164.

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