[ v10 p346 ]
10:0346(62)CO
The decision of the Authority follows:
10 FLRA No. 62
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778, AFL-CIO
Respondent
and
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, 438TH AIR BASE
GROUP (MAC)
MC GUIRE AIR FORCE BASE
Charging Party
Case No. 2-CO-12
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTIONS. THEREAFTER, THE RESPONDENT, THE GENERAL
COUNSEL, AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S DECISION
AND ACCOMPANYING BRIEFS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY
TO THE EXTENT CONSISTENT HEREWITH.
THE JUDGE FOUND THAT THE RESPONDENT UNION, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, PRESENTED TO EACH NONMEMBER
WHO SOUGHT ITS ASSISTANCE A COPY OF THE DUES DEDUCTION AUTHORIZATION
FORM (SF 1187) BY WHICH AN EMPLOYEE MAY JOIN A LABOR ORGANIZATION,
AND/OR A SO-CALLED AFFIDAVIT OF CHARGES FORM DEVISED BY THE RESPONDENT
UNDER WHICH, IN EFFECT, A NONMEMBER WOULD AGREE TO DEFRAY THE
RESPONDENT'S EXPENSES INCURRED IN THE COURSE OF REPRESENTING THE
NONMEMBER EMPLOYEE. THE JUDGE ALSO FOUND THAT THE RESPONDENT'S
REPRESENTATIVES WHO PRESENTED THESE FORMS TO NONMEMBERS SEEKING THE
UNION'S ASSISTANCE STATED THAT "WE WOULD LIKE YOU TO SIGN ONE OR THE
OTHER" BUT FAILED TO CLEARLY INFORM SUCH NONMEMBERS THAT THE RESPONDENT
WOULD REPRESENT THEM IRRESPECTIVE OF WHETHER THEY AGREED TO SIGN EITHER
FORM. THE JUDGE CONCLUDED THAT THE RESPONDENT'S ACTIONS APPEARED TO SET
CONDITIONS PRECEDENT TO THE RESPONDENT'S FULFILLING ITS OBLIGATION AS
EXCLUSIVE REPRESENTATIVE UNDER SECTION 7114(A)(1) OF THE STATUTE /1/ TO
REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE BARGAINING UNIT WITHOUT
REGARD TO LABOR ORGANIZATION MEMBERSHIP. THE JUDGE FURTHER CONCLUDED
THAT, IN THE ABSENCE OF A CLEAR INDICATION TO NONMEMBERS THAT THE
RESPONDENT WOULD REPRESENT THEIR INTERESTS WITHOUT REGARD TO UNION
MEMBERSHIP, THE RESPONDENT FAILED TO COMPLY WITH SECTION 7114(A)(1) AND
THEREFORE VIOLATED SECTION 7116(B)(8) OF THE STATUTE. THE JUDGE
ADDITIONALLY FOUND THAT THE RESPONDENT'S CONDUCT VIOLATED SECTION
7116(B)(1) BY INTERFERING WITH, RESTRAINING, AND COERCING THE EMPLOYEES
IN THE EXERCISE OF THEIR PROTECTED RIGHTS UNDER SECTION 7102 OF THE
STATUTE. /2/
THE AUTHORITY DISAGREES WITH THE JUDGE'S CONCLUSION THAT SUCH CONDUCT
BY THE RESPONDENT UNION CONSTITUTED A VIOLATION OF SECTION 7116(B)(8) OF
THE STATUTE, BUT AGREES THAT IT DID CONSTITUTE A VIOLATION OF SECTION
7116(B)(1).
SECTION 7114(A)(1) OF THE STATUTE REQUIRES AN EXCLUSIVE
REPRESENTATIVE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT
WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION
MEMBERSHIP, AND A UNION WHICH FAILS TO DO SO THEREBY VIOLATES SECTION
7116(B)(8) OF THE STATUTE. THUS, IN TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL/INTERNATIONAL ASSOCIATION OF MACHINISTS,
LOCAL NO. 441, 8 FLRA NO. 47 (1982), THE AUTHORITY ADOPTED THE JUDGE'S
FINDING THAT THE UNION'S CONDUCT IN AVOIDING AND THEN PROVIDING A BARE
MINIMUM OF HELP TO A NONMEMBER UNIT EMPLOYEE RATHER THAN ACTIVELY
ASSISTING HIM IN INITIATING A GRIEVANCE "WAS DONE IN ACCORD WITH
WELL-ENTRENCHED POLICY OF THE UNION LEADERSHIP NOT TO INITIATE
GRIEVANCES FOR NON-UNION MEMBERS," AND THEREFORE WAS INCONSISTENT WITH
SECTION 7114(A)(1) AND VIOLATIVE OF SECTION 7116(B)(8) OF THE STATUTE.
/3/ IN THE INSTANT CASE, BY CONTRAST, THE AUTHORITY CONCLUDES THAT THE
RECORD FAILS TO DEMONSTRATE THAT THE RESPONDENT UNION HAD AN ESTABLISHED
POLICY OF DISCRIMINATING AGAINST NONMEMBER UNIT EMPLOYEES IN THE
PERFORMANCE OF ITS RESPONSIBILITIES AS EXCLUSIVE REPRESENTATIVE OR THAT
THERE WAS IN FACT DISPARATE TREATMENT OF NONMEMBERS BY THE RESPONDENT IN
PROVIDING REPRESENTATION TO BARGAINING UNIT EMPLOYEES. THUS, WHILE THE
RESPONDENT'S REPRESENTATIVES INDICATED THAT THEY "WOULD LIKE" TO HAVE
NONMEMBERS WHO SOUGHT UNION REPRESENTATION SIGN A DUES DEDUCTION
AUTHORIZATION FORM (SF 1187) OR A PROMISE TO DEFRAY THE COSTS OF
REPRESENTATION, THERE WAS NO EVIDENCE PRESENTED THAT NONMEMBERS WHO
REFUSED TO SIGN EITHER DOCUMENT WERE DENIED REPRESENTATION ON THAT
BASIS. RATHER, AS DISCUSSED BELOW, THE EVIDENCE IS TO THE CONTRARY WITH
RESPECT TO THE SPECIFIC ALLEGATIONS OF DISPARATE TREATMENT AGAINST
NONMEMBERS CONTAINED IN THE COMPLAINT. HOWEVER, IN AGREEMENT WITH THE
JUDGE, THE AUTHORITY CONCLUDES THAT THE RESPONDENT'S CONDUCT SET FORTH
ABOVE CONSTITUTED A VIOLATION OF SECTION 7116(B)(1) OF THE STATUTE.
THUS, BY CREATING THE IMPRESSION THAT NONMEMBERS SEEKING THE UNION'S
ASSISTANCE MIGHT BE DENIED REPRESENTATION IF THEY DID NOT AGREE TO
BECOME MEMBERS OR TO PAY THE EXPENSES OF THEIR REPRESENTATION, THE
RESPONDENT INTERFERED WITH, RESTRAINED, AND COERCED NONMEMBER EMPLOYEES
IN THE EXERCISE OF THEIR PROTECTED RIGHT UNDER SECTION 7102 OF THE
STATUTE TO JOIN OR REFRAIN FROM JOINING, FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, THE RESPONDENT UNION OR ANY OTHER LABOR
ORGANIZATION.
WITH RESPECT TO THE FOUR SPECIFIC INSTANCES OF DISPARATE TREATMENT OF
NONMEMBER EMPLOYEES ALLEGED IN THE COMPLAINT, THE AUTHORITY FINDS THAT
THE GENERAL COUNSEL HAS FAILED TO MEET THE BURDEN OF PROVING SUCH
ALLEGATIONS. THUS, IN THE CASE OF EMPLOYEE COX, WHO JOINED THE
RESPONDENT AFTER BEING CONFRONTED WITH THE FORMS DISCUSSED ABOVE, THE
RESPONDENT'S REPRESENTATIVES TESTIFIED THAT THEY ADVISED COX TO FILE A
WORKMEN'S COMPENSATION CLAIM WITH HIS SUPERVISOR WHICH, ACCORDING TO THE
RESPONDENT, IS ITS STANDARD PROCEDURE. COX FAILED TO TAKE THIS
PRELIMINARY STEP. THE RESPONDENT'S CONTENTION THAT ITS TREATMENT OF
EMPLOYEE COX WAS NOT DISSIMILAR TO THAT ACCORDED OTHER EMPLOYEES IN
SIMILAR CIRCUMSTANCES WAS NOT REBUTTED. THE JUDGE GAVE SIGNIFICANT
WEIGHT TO THE RESPONDENT'S APPARENT WARNING TO COX THAT HE WOULD BE
LIABLE FOR CERTAIN FEES IF HIS CLAIM REACHED A CERTAIN STAGE OF
DEVELOPMENT. IN THIS REGARD, HOWEVER, THERE WAS NO REBUTTAL OF THE
RESPONDENT'S TESTIMONY THAT IT REQUIRES ALL EMPLOYEES WHOM IT ASSISTS
WITH WORKMEN'S COMPENSATION CLAIMS TO PAY THEIR OWN ATTORNEYS' FEES WHEN
A COMPENSATION CLAIM IS APPEALED BEYOND THE JURISDICTION OF MCGUIRE AIR
FORCE BASE.
WITH RESPECT TO EMPLOYEE MENDLER, WHILE THE JUDGE FOUND THAT A
REPRESENTATIVE OF THE RESPONDENT TOLD HER THAT SHE HAD TO DECIDE WHETHER
SHE WANTED TO JOIN THE UNION OR SIGN THE OTHER FORM BEFORE HE COULD HELP
HER, THE RECORD CONTAINS NO EVIDENCE THAT MENDLER WAS IN FACT DENIED
REPRESENTATION OR RECEIVED LESS ADEQUATE REPRESENTATION THAN WAS
AFFORDED TO MEMBERS OF THE RESPONDENT. SIMILARLY, WHILE THE JUDGE FOUND
THAT EMPLOYEE PANAGOTOPULOS ORIGINALLY WAS TOLD THAT THE RESPONDENT
WOULD NOT REPRESENT HIM, THE JUDGE FURTHER FOUND THAT REPRESENTATION WAS
ACCORDED TO THE EMPLOYEE DESPITE HIS REFUSAL TO BECOME A MEMBER OR TO
PAY THE COSTS OF HIS REPRESENTATION. MOREOVER, THERE WAS NO ALLEGATION
THAT SUCH REPRESENTATION FAILED TO SATISFY THE REQUIREMENTS OF SECTION
7114(A)(1) OF THE STATUTE. ACCORDINGLY, WHILE THE ABOVE STATEMENTS TO
BOTH EMPLOYEES VIOLATED SECTION 7116(B)(1), AS FOUND BY THE JUDGE, THEY
DO NOT, WITHOUT MORE, CONSTITUTE A VIOLATION OF SECTION 7116(B)(8).
WITH RESPECT TO EMPLOYEE CHARITY, WHILE THE JUDGE APPEARED TO
QUESTION THE TIMING OF A LETTER SENT TO THE COMPTROLLER GENERAL IN HER
CASE, THAT LETTER INCLUDED THE COMPLAINTS OF A NUMBER OF OTHER EMPLOYEES
WHO WERE APPARENTLY MEMBERS OF THE RESPONDENT AND WHO HAD RAISED SIMILAR
QUESTIONS ABOUT A PAY MATTER. THERE IS NO EVIDENCE THAT CHARITY WAS
TREATED DIFFERENTLY FROM THE OTHER EMPLOYEES WHO RAISED THE SAME ISSUE
WITH THE RESPONDENT.
FINALLY, THE JUDGE FOUND THAT EMPLOYEES MYERS AND CASTELLANO, WHILE
ON OFFICIAL TIME TO REPRESENT THE RESPONDENT UNION PURSUANT TO THE
PARTIES' NEGOTIATED AGREEMENT, CONFRONTED NONMEMBER EMPLOYEES SEEKING
THE RESPONDENT'S ASSISTANCE WITH DUES AUTHORIZATION FORMS, AS NOTED
ABOVE. ALTHOUGH THE JUDGE CONCLUDED THAT SUCH ACTIVITY CONSTITUTED
SOLICITATION OF MEMBERSHIP, I.E., INTERNAL UNION BUSINESS, HE FURTHER
CONCLUDED THAT SINCE THE SOLICITATION TOOK PLACE WHILE THE RESPONDENT'S
REPRESENTATIVES WERE ON OFFICIAL TIME PURSUANT TO SECTION 7131(D) OF THE
STATUTE IT WAS INSULATED FROM THE REQUIREMENT IN SECTION 7131(B) THAT
SOLICITATION MAY ONLY OCCUR WHEN AN EMPLOYEE IS IN A NONDUTY STATUS.
/4/ THE AUTHORITY DISAGREES. AN EMPLOYEE ON OFFICIAL TIME PURSUANT TO
SECTION 7131 IS IN A DUTY, OR WORK, STATUS. /5/ AS SECTION 7131(B)
REQUIRES THAT AN EMPLOYEE MAY ONLY SOLICIT UNION MEMBERSHIP WHILE IN A
NONDUTY STATUS, THE SOLICITATION ENGAGED IN BY EMPLOYEES MYERS AND
CASTELLANO AS AGENTS OF THE RESPONDENT UNION, ALTHOUGH IT MAY HAVE BEEN
ONLY INCIDENTAL TO THE PERFORMANCE OF THE ACTIVITIES FOR WHICH THEY HAD
BEEN GRANTED OFFICIAL TIME, NEVERTHELESS WAS IN VIOLATION OF SECTION
7131(B) AND THEREFORE WAS VIOLATIVE OF SECTION 7116(B)(1) AND (8) OF THE
STATUTE, AS ALLEGED BY THE GENERAL COUNSEL.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1778, AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) CREATING THE IMPRESSION THAT NONMEMBER UNIT EMPLOYEES SEEKING
REPRESENTATION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, WOULD BE REQUIRED TO SIGN EITHER A DUES DEDUCTION
AUTHORIZATION FORM (STANDARD
FORM 1187) OR AN AGREEMENT TO PAY THE COSTS OF REPRESENTATION
(AFFIDAVIT OF CHARGES) AS A
RECONDITION TO RECEIVING REPRESENTATION.
(B) SOLICITING MEMBERSHIP IN THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778,
AFL-CIO, THROUGH THE ACTS OF EMPLOYEE REPRESENTATIVES WHILE SUCH
EMPLOYEES ARE ON OFFICIAL
TIME.
(C) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES IN THE
EXERCISE OF THEIR
RIGHT TO JOIN OR TO REFRAIN FROM JOINING FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, OR
ANY OTHER LABOR
ORGANIZATION.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING UNIT EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE CLEAR NOTICE TO ALL NONMEMBER UNIT EMPLOYEES SEEKING
REPRESENTATION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THAT THEY ARE NOT REQUIRED TO SIGN EITHER A DUES
DEDUCTION AUTHORIZATION FORM
(STANDARD FORM 1187) OR AN AGREEMENT TO PAY THE COSTS OF
REPRESENTATION (AFFIDAVIT OF CHARGES)
AS A PRECONDITION TO RECEIVING REPRESENTATION.
(B) OFFER EMPLOYEES ROY B. COX AND REGINA MENDLER SIXTY DAYS FROM THE
DATE OF THIS ORDER IN
WHICH TO RESIGN FROM THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1778, AFL-CIO, BY
SUBMITTING A STANDARD FORM 1188, REVOCATION OF DUES AUTHORIZATION
FORM, AND REIMBURSE EACH
SUCH EMPLOYEE WHO CHOOSES TO RESIGN OR HAS ALREADY RESIGNED FROM
MEMBERSHIP IN THE UNION FOR
ANY DUES AND FEES PAID BY OR DEDUCTED FROM THEIR PAY SINCE NOVEMBER
6, 1979 IN THE CASE OF
MS. MENDLER AND SINCE AUGUST 27, 1979 IN THE CASE OF MR. COX. /6/
(C) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT PLACES WHERE
NOTICES TO MEMBERS AND TO EMPLOYEES OF DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, 438TH AIR
BASE GROUP (MAC), MCGUIRE AIR FORCE BASE, N.J., ARE CUSTOMARILY
POSTED, INCLUDING FACILITIES
PROVIDED BY THE ACTIVITY TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778,
AFL-CIO, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY
THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
PRESIDENT OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, AND SHALL BE
POSTED AND MAINTAINED BY
HIM FOR 60 CONSECUTIVE DAYS THEREAFTER. REASONABLE STEPS SHALL BE
TAKEN BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, TO INSURE
THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, IN
WRITING, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE SECTION 7116(B)(1) AND (8) ALLEGATIONS
OF THE COMPLAINT PREDICATED ON THE RESPONDENT'S NONCOMPLIANCE WITH
SECTION 7114(A)(1) OF THE STATUTE BE, AND THEY HEREBY ARE, DISMISSED.
ISSUED, WASHINGTON, D.C., OCTOBER 8, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT CREATE THE IMPRESSION THAT NONMEMBER UNIT EMPLOYEES
SEEKING OUR REPRESENTATION OF THEIR INTERESTS ARE REQUIRED TO SIGN
EITHER A DUES DEDUCTION AUTHORIZATION FORM (STANDARD FORM 1187) OR AN
AGREEMENT TO PAY THE COSTS OF REPRESENTATION (AFFIDAVIT OF CHARGES) AS A
PRECONDITION TO RECEIVING SUCH REPRESENTATION AS IS PROVIDED TO UNIT
EMPLOYEES WHO ARE MEMBERS OF THE UNION.
WE WILL NOT SOLICIT MEMBERSHIP IN THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, THROUGH THE ACTS OF OUR
REPRESENTATIVES WHILE SUCH EMPLOYEES ARE ON OFFICIAL TIME.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHT TO JOIN OR TO REFRAIN FROM JOINING, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION.
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
STATUTE.
WE WILL PROVIDE CLEAR NOTICE TO ALL NONMEMBER UNIT EMPLOYEES SEEKING
OUR REPRESENTATION OF THEIR INTERESTS THAT THEY ARE NOT REQUIRED TO SIGN
EITHER A DUES DEDUCTION AUTHORIZATION FORM (STANDARD FORM 1187) OR AN
AGREEMENT TO PAY THE COSTS OF REPRESENTATION (AFFIDAVIT OF CHARGES) AS A
PRECONDITION TO RECEIVING SUCH REPRESENTATION AS IS PROVIDED TO UNIT
EMPLOYEES WHO ARE MEMBERS OF THE UNION.
WE WILL OFFER MR. ROY B. COX AND MS. REGINA MENDLER SIXTY DAYS FROM
THE DATE OF THIS ORDER IN WHICH TO RESIGN FROM THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO, BY SUBMITTING A STANDARD
FORM 1188, REVOCATION OF DUES AUTHORIZATION FORM, AND REIMBURSE EACH
EMPLOYEE WHO CHOOSES TO RESIGN OR HAS ALREADY RESIGNED FROM MEMBERSHIP
IN THE UNION FOR ANY DUES AND FEES PAID BY OR DEDUCTED FROM THE PAY OF
SUCH EMPLOYEES SINCE NOVEMBER 6, 1979 IN THE CASE OF MS. MENDLER AND
SINCE AUGUST 27, 1979 IN THE CASE OF MR. COX.
(LABOR ORGANIZATION)
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION II, WHOSE ADDRESS
IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, N.Y.10007, AND WHOSE
TELEPHONE NUMBER IS: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
KEVIN M. GRILE, ESQUIRE
(JAMES R. ROSA, ESQUIRE
ON BRIEF)
FOR THE COMPLAINANT
JAMES E. PETRUCCI, ESQUIRE
STEVEN SHARFSTEIN, ESQUIRE
FOR THE GENERAL COUNSEL
CAPTAIN JAMES L. LINSEY
FOR THE CHARGING PARTY
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. CHAPTER 71 /6/ AND THE FINAL RULES AND
REGULATIONS ISSUED THEREUNDER, 5 C.F.R. 2415.1, ET SEQ., FED.REG., VOL.
45, NO. 12, JANUARY 17, 1980. THE CHARGE (G.C. EXH. 1(A)) WAS FILED
DECEMBER 27, 1979, A FIRST AMENDED CHARGE (G.C. EXH. 1(C)) WAS FILED
APRIL 23, 1980, AND THE COMPLAINT AND NOTICE OF HEARING (G.C. EXH. 1(E))
ISSUED ON APRIL 29, 1980 /7/ PURSUANT TO WHICH A HEARING WAS DULY HELD
BEFORE THE UNDERSIGNED AT MCGUIRE AIR FORCE BASE, NEW JERSEY, ON JULY 2
AND 3, 1980. /8/
THIS CASE INVOLVES ALLEGATIONS THAT THE UNION, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1778, AFL-CIO (HEREINAFTER ALSO REFERRED TO
AS "LOCAL 1778" OR "UNION") VIOLATED THE STATUTE, IN ESSENCE, BY
CONDITIONING ITS REPRESENTATION OF NON-MEMBERS ON THEIR EXECUTING A DUES
ALLOTMENT AUTHORIZATION OR, IN THE ALTERNATIVE, EXECUTING AN AFFIDAVIT
OF CHARGES; BY VIOLATION OF THE DUTY OF FAIR REPRESENTATION; AND/OR BY
SOLICITATION OF UNION MEMBERSHIP WHILE IN A DUTY STATUS. THE COMPLAINT
RESULTED FROM CHARGES FILED BY THE DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 438TH AIR FORCE GROUP, MCGUIRE AIR FORCE BASE (HEREINAFTER
ALSO REFERRED TO "AGENCY"). UNION'S ASSERTION THAT AGENCY WAS WITHOUT
STANDING TO FILE THE CHARGES WAS DENIED PRIOR THE HEARING, BUT, HAVING
BEEN RENEWED IN UNION'S BRIEF AND HAVING BEEN ARGUED FURTHER IN GENERAL
COUNSEL'S BRIEF, IS FURTHER ADDRESSED HEREINAFTER.
EACH PARTY WAS REPRESENTED BY ABLE COUNSEL, WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND TO
PRESENT EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. AT THE
CONCLUSION OF THE TESTIMONY, THE PARTIES WERE AFFORDED THE OPPORTUNITY
TO PRESENT ORAL ARGUMENT, WHICH RIGHT WAS EXERCISED ONLY BY COUNSEL FOR
THE AGENCY, AND AT THE CONCLUSION OF THE HEARING AUGUST 4, 1980, WAS
FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS WHICH DATE WAS
SUBSEQUENTLY EXTENDED FOR GOOD CAUSE SHOWN, AND, SPECIFICALLY, DELAY IN
RECEIPT OF TRANSCRIPT, TO SEPTEMBER 10, 1980. EACH PARTY TIMELY MAILED
AN EXCELLENT BRIEF, RECEIVED ON OR BEFORE SEPTEMBER 16, 1980, WHICH HAVE
BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE RECORD,
INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS AND CONCLUSIONS:
I. STANDING OF AGENCY TO FILE CHARGES
UNION FILED A MOTION FOR PARTIAL SUMMARY JUDGMENT, DATED MAY 29,
1980, WITH MEMORANDUM OF POINTS AND AUTHORITY, ETC., WHICH, HAVING BEEN
DULY REFERRED PURSUANT TO SEC. 2423.22(B) OF THE REGULATIONS, WAS
DENIED BY ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT DATED JUNE 20,
1980. RESPONDENT, AND ITS BRIEF (P. 7) READILY CONCEDES THAT THE
CONTENTION ASSERTED IN ITS BRIEF HAD BEEN ADDRESSED AND DECIDED BY THE
ORDER OF JUNE 20, 1980. THUS, RESPONDENT STATES, IN PART, AS FOLLOWS:
"RESPONDENT RECOGNIZES THAT THIS ARGUMENT HAS BEEN ADDRESSED IN THE
ORDER ON MOTION FOR
PARTIAL SUMMARY JUDGMENT, ISSUED JUNE 20, 1980." (RESPONDENT'S BRIEF,
P. 7).
THE GROUNDS FOR DENIAL OF RESPONDENT'S MOTION FOR PARTIAL SUMMARY
JUDGMENT, HEREBY REAFFIRMED AND INCORPORATED HEREIN BY REFERENCE,
PREMISED DIRECTLY ON THE AGENCY'S ASSERTED LACK OF STANDING TO FILE
CHARGES IN REGARD TO A LABOR ORGANIZATION'S ALLEGED BREACH OF DUTY OF
FAIR REPRESENTATION OR A LABOR ORGANIZATION'S ALLEGED COERCION,
INTERFERENCE WITH, OR RESTRAINT OF EMPLOYEE'S EXERCISE OF RIGHTS FOR
WHICH THE AGENCY HAS NO RESPONSIBILITY OR LIABILITY, WERE FULLY SET
FORTH IN THE ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT, DATED JUNE
20, 1980, NEED NOT BE REPEATED IN DETAIL BEYOND NOTING THAT THE ORDER
STATED, IN PART, THAT:
"THE STATUTE AND THE RULES AND REGULATIONS SPECIFICALLY PROVIDE THAT,
'PERSON' MEANS, INTER
ALIA, AN AGENCY; ANY 'PERSON', INCLUDING AN AGENCY, MAY FILE A
CHARGE THAT, INTER ALIA, A
LABOR ORGANIZATION HAS ENGAGED IN ANY UNFAIR LABOR PRACTICE
PROHIBITED UNDER SECTION 16 OF THE
STATUTE AND THE FACT THAT THE PERSON FILING SAID CHARGE HAS NEITHER
RESPONSIBILITY OR
LIABILITY IN REGARD TO THE ALLEGED UNFAIR LABOR PRACTICE IS
IMMATERIAL" (CITATIONS OMITTED)
(ORDER, P. 3).
THE ORDER FURTHER STATED, IN PART, THAT:
" . . . UNDER THE STATUTE AN AGENCY, INTER ALIA, MAY FILE A CHARGE
WITHOUT REGARD TO ITS
INTEREST IN THE MATTER AND THE RIGHT OF THE AUTHORITY, BY ITS GENERAL
COUNSEL, TO INVESTIGATE
THE CHARGE, TO ISSUE AND MAINTAIN THE COMPLAINT IS NOT AFFECTED."
(ORDER P. 3).
IT IS TRUE, OF COURSE, AS RESPONDENT STATES, THAT THE LAST SENTENCE
OF SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED, WHICH PROVIDED, IN
PART, THAT, "THE HEAD OF EACH AGENCY SHALL TAKE THE ACTION REQUIRED TO
ASSURE . . . THAT NO INTERFERENCE, RESTRAINT, COERCION, OR
DISCRIMINATION IS PRACTICES WITHIN HIS AGENCY TO ENCOURAGE OR DISCOURAGE
MEMBERSHIP IN A LABOR ORGANIZATION", WAS NOT INCORPORATED IN THE
STATUTE. WITH FULL KNOWLEDGE THAT THE AUTHORITY, IN NATIONAL TREASURY
EMPLOYEES UNION (NTEU), CHAPTER 202, ET AL., 1 FLRA NO. 104(1979), VERY
PROPERLY RELIED ON THE FOREGOING PROVISION OF THE EXECUTIVE ORDER IN
DETERMINING THAT THE AGENCY OR ACTIVITY INVOLVED IN EACH OF THE
CONSOLIDATED CASES UNDER THE EXECUTIVE ORDER HAD STANDING TO "BRING THE
ACTIONS IN THE RESPECTIVE CASES" AND BECAUSE THE GROUND RELIED UPON BY
THE AUTHORITY IN 1 FLRA NO. 104 WAS NOT APPLICABLE TO CASES ARISING
UNDER THE STATUTE, I NEITHER CITED NOR RELIED UPON THE AUTHORITY'S
DECISION IN THAT, OR SIMILAR CASES UNDER THE EXECUTIVE ORDER, SEE, FOR
EXAMPLE, NATIONAL TREASURY EMPLOYEES UNION, WASHINGTON, D.C., 2 FLRA NO.
51 (1979). UNDER THE EXECUTIVE ORDER, THE CHARGING PARTY NOT ONLY
INITIATED THE CHARGE BUT PROSECUTED THE MATTER SO THAT,, AS THE
AUTHORITY NOTED, IT WAS NECESSARY TO DETERMINE WHETHER THE AGENCY OR
ACTIVITY HAD SUFFICIENT INTEREST TO BRING THE RESPECTIVE UNFAIR LABOR
PRACTICE COMPLAINTS.
CONGRESS, IN DEVISING THE STATUTE, WHOLLY ALTERED PROSECUTION OF
UNFAIR LABOR PRACTICE COMPLAINTS BY THE CHARGING PARTY AND UNDER THE
STATUTE, AS IS TRUE UNDER THE NATIONAL LABOR RELATIONS ACT, AFTER WHICH
CONGRESS INTENTIONALLY AND CONSCIOUSLY PATTERNED THE STRUCTURE OF THE
STATUTE, THE PURPOSE OF THE CHARGE IS TO SET IN MOTION THE MACHINERY OF
AN INQUIRY BY THE GENERAL COUNSEL. CONGRESS UNDER THE STATUTE HAS
IMPOSED UPON THE GENERAL COUNSEL OF THE AUTHORITY RESPONSIBILITY FOR
MAKING THAT INVESTIGATION AND OF FRAMING THE ISSUES, NOT UPON THE
CHARGING PARTY. ALTHOUGH A CHANGE IS ESSENTIAL TO THE INVOCATION OF
JURISDICTION OF THE AUTHORITY, ONCE THE INVESTIGATORY MACHINERY OF THE
AUTHORITY IS SET IN MOTION, BY THE CHARGE, IT IS THE GENERAL COUNSEL'S
EXCLUSIVE RESPONSIBILITY TO INVESTIGATE AND, IF HE FINDS CAUSE TO
BELIEVE THAT AN UNFAIR LABOR PRACTICE HAS OCCURRED, TO ISSUE A COMPLAINT
WHICH HE, ADJUDICATES IN THE PUBLIC INTEREST. SECTION 3(A)(1) OF THE
STATUTE DEFINES "PERSON" AS " . . . AN INDIVIDUAL, LABOR ORGANIZATION,
OR AGENCY"; SECTION 18(A)(1) PROVIDES, IN PART, "IF ANY AGENCY OR LABOR
ORGANIZATION IS CHARGED BY ANY PERSON WITH HAVING ENGAGED IN OR ENGAGING
IN AN UNFAIR LABOR PRACTICE, THE GENERAL COUNSEL SHALL INVESTIGATE THE
CHARGE AND MAY ISSUE . . . A COMPLAINT"; AND SECTION 2423.3 OF THE
REGULATIONS PROVIDES, IN PART, "AN ACTIVITY, AGENCY, OR LABOR
ORGANIZATION MAY BE CHARGED BY ANY PERSON WITH HAVING ENGAGED IN OR
ENGAGING IN ANY UNFAIR LABOR PRACTICE PROHIBITED UNDER 5 U.S.C. 7-16".
ACCORDINGLY, UNDER THE STATUTE, THE AGENCY HAD STANDING TO FILE THE
CHARGE AND WHETHER IT HAD EITHER RESPONSIBILITY OR LIABILITY IN REGARD
TO THE ALLEGED UNFAIR LABOR PRACTICE IS IMMATERIAL, NOTWITHSTANDING THAT
SUCH SHOWING OF INTEREST MAY HAVE BEEN REQUIRED UNDER THE EXECUTIVE
ORDER. /10/
FINDINGS
1. THE UNION IS THE EXCLUSIVE REPRESENTATIVE FOR ALL EMPLOYEES
SERVICED BY THE BASE CIVILIAN PERSONNEL OFFICE, MCGUIRE AIR FORCE BASE,
THAT UNIT BEING MORE FULLY DESCRIBED IN THE PARTIES' CURRENT COLLECTIVE
BARGAINING AGREEMENT (JT. EXH. 1). THERE ARE APPROXIMATELY 1500
EMPLOYEES IN THE BARGAINING UNIT BUT ONLY ABOUT 500 OF THEM ARE MEMBERS
OF THE UNION. UNION DUES AT ALL TIMES MATERIAL WERE $8.75 PER PAY
PERIOD ($227.50 PER YEAR).
2. THE AGENCY AND LOCAL 1778 ARE, ALSO, SIGNATORIES TO AN ANNUAL
DUES ALLOTMENT REVOCATION AGREEMENT, DATED JANUARY 30, 1979 (G.C. EXH.
9).
3. MS. CLAUDIA STORICKS, A PAID EMPLOYEE OF LOCAL 1778 (I.E., NOT A
GOVERNMENT EMPLOYEE), IS IN CHARGE OF THE UNION'S SECRETARIAL AND
DAY-TO-DAY OPERATIONS OF THE UNION'S OFFICE. WHEN A UNIT EMPLOYEE COMES
TO THE OFFICE WITH A PROBLEM, THE EMPLOYEE IS NORMALLY SEEN FIRST BY MS.
STORICKS. RESPONDENT CONCEDES THAT SHE IS INSTRUCTED TO, AND DOES IN
FACT, SCREEN EMPLOYEES AS TO THEIR MEMBERSHIP STATUS. MS. STORICKS
STATED THAT SHE GENERALLY KNEW WHO WAS A UNION MEMBER BUT, IF SHE WERE
UNCERTAIN, SHE CONSULTED A ROLODEX FILE ON HER DESK WHICH SHE MAINTAINS
AND WHICH CONTAINS THE NAMES OF ALL UNION MEMBERS.
4. AFTER DETERMINING MEMBERSHIP STATUS, MS. STORICKS GIVES EACH
EMPLOYEE CERTAIN FORMS TO FILL OUT. ALL EMPLOYEES, MEMBERS AND
NON-MEMBERS ALIKE, RECEIVE A COMPLAINT FORM /11/ (G.C. EXH. 5) AND A
POWER OF ATTORNEY (G.C. EXH. 4). EACH NON-MEMBER IS GIVEN TWO OTHER
FORMS: A DUES ALLOTMENT AUTHORIZATION (G.C. EXH. 3) AND AN AFFIDAVIT OF
CHARGES (G.C. EXH. 6).
5. THE DUES ALLOTMENT AUTHORIZATION, GENERALLY REFERRED TO AS A FORM
NO. 1187, OR SIMPLY AS AN 1187, IS THE FORM BY WHICH EMPLOYEES JOIN THE
UNION AND AGREE TO HAVE DUES DEDUCTED FROM THEIR PAYCHECKS EACH BIWEEKLY
PAY PERIOD.
6. THE AFFIDAVIT OF CHARGES IS AN AGREEMENT WHEREBY THE EMPLOYEE
AGREES TO PAY $24.00 PER HOUR TO COVER COSTS INCURRED DURING
REPRESENTATION AND, IN ADDITION, TO ASSUME ALL EXPENDITURES AS A RESULT
OF HEARINGS, ARBITRATION, COURT PROCEEDINGS, ETC. THE AFFIDAVIT OF
CHARGES PROVIDED AS FOLLOWS:
"AFFIDAVIT OF CHARGES
"I, AGREE TO PAY THE AMERICAN
FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1778, THE WILLIAM G. BAILLIE, JR.
LOCAL, $24.00 PER HOUR, OR
ANY PORTION THEREOF, IN ORDER TO COVER THE COST OF ADMINISTRATION AND
MATERIALS INCURRED
DURING THE PROCESSING OF MY COMPLAINT.
"I FURTHER AGREE TO ASSUME ANY AND ALL CUSTOMARY
EXPENDITURES
CREATED AS A RESULT OF PROCEEDINGS, I.E., HEARINGS, ARBITRATION,
COURT, ETC.
"WITNESS COMPLAINANT"
(G.C. EXH. 6).
7. THE $24.00 PER HOUR CHARGE, SET FORTH IN THE AFFIDAVIT OF
CHARGES, BEARS NO RELATION TO THE ACTUAL COST OF PROCESSING A COMPLAINT
/12/ NOR WAS THERE ANY INDICATION OF WHAT, OR WHOSE, HOURS WERE TO BE
USED, ALTHOUGH THE OBVIOUS INTENT WAS TO IMPLY - INDEED, MS. STORICKS
DIRECTLY STATED THAT THE TIME INCLUDED ". . . THE TIME THE OFFICIALS AND
SHOP STEWARDS WOULD SPEND . . . ." (TR. 37) - THAT ALL TIME SPENT BY
UNION OFFICIALS IN HANDLING A COMPLAINT WOULD CONSTITUTE THE HOURS
EXPENDED TO BE MULTIPLIED BY $24.00; HOWEVER, EXCEPT FOR TIME SPENT BY
MS. STORICKS AND/OR OTHER EMPLOYEES OF LOCAL 1778, IN TYPING OR HANDLING
ADMINISTRATIVE DETAILS OF A COMPLAINT, OFFICERS AND STEWARDS, EXCEPT
POSSIBLY WHEN LEAVE WITHOUT PAY MAY HAVE BEEN INVOLVED, HANDLE SUCH
MATTERS ON OFFICIAL TIME AND ANY CHARGE FOR HOURS FOR WHICH THEY RECEIVE
OFFICIAL TIME WOULD CLEARLY HAVE BEEN UNJUSTIFIED AS REIMBURSEMENT FOR
AN EXPENSES NOT INCURRED BY THE UNION. THE AGENCY PROVIDED OFFICE SPACE
AND UTILITIES WITHOUT CHARGE SO THAT THE COST TO THE UNION OF THE NORMAL
HANDLING OF ANY EMPLOYEE COMPLAINT BY AN OFFICER OR STEWARD WOULD BE
NOMINAL.
8. MS. STORICKS ADMITTED THAT IF THE NON-MEMBER SEEKING ASSISTANCE
DOES NOT WANT TO JOIN THE UNION BY SIGNING THE 1187, DUES ALLOTMENT
AUTHORIZATION, SHE THEN PRESENTS THE AFFIDAVIT OF CHARGES; THAT SHE
EXPLAINS WHAT THE FORM INVOLVES AND ADMITTED THAT SHE ENCOURAGES
EMPLOYEES TO SIGN ONE OR THE OTHER BEFORE SUBMITTING THEIR COMPLAINT.
SHE TESTIFIED,
"I SAY THAT WE WOULD LIKE YOU TO SIGN ONE OR THE OTHER.
"THE AFFIDAVIT OF CHARGES OR THE MEMBERSHIP FORM." (TR. 36).
MS. STORICKS FURTHER TESTIFIED THAT SHE DOES NOT INFORM THE EMPLOYEE
THAT SIGNING EITHER FORM IS PURELY VOLUNTARY AND/OR THAT IF THE EMPLOYEE
CHOOSES NOT TO SIGN HE, OR SHE, WOULD BE REPRESENTED BY THE UNION.
9. THE AFFIDAVIT OF CHARGES FORM WAS ESTABLISHED BY THE EXECUTIVE
BOARD OF LOCAL 1778 IN THE SPRING OF 1978. FROM THAT TIME, MS. STORICKS
WAS INSTRUCTED TO, AND HAS, PRESENTED THIS FORM TO NON-MEMBERS, IN
ADDITION TO FORM 1187, WHENEVER THEY COME TO THE UNION FOR ASSISTANCE.
MS. STORICKS TESTIFIED THAT A NUMBER OF EMPLOYEES HAS JOINED THE UNION
SINCE THE INSTITUTION OF THE AFFIDAVIT OF CHARGES, ALTHOUGH NO EMPLOYEE
HAS EVER SIGNED AN AFFIDAVIT OF CHARGES.
10. ON AUGUST 27, 1979, MR. ROY B. COX, THEN A NON-MEMBER OF THE
UNION, WENT TO THE UNION OFFICE FOR ASSISTANCE IN FILING A WORKMEN'S
COMPENSATION CLAIM FOR A HEARING LOSS. HE WAS TOLD TO COME BACK LATER
AND DID SO, AT ABOUT 10:30 A.M. AT THE SAME DAY, WHEN HE TALKED TO MR.
ALGERNON S. MYERS, SECRETARY-TREASURER OF LOCAL 1778. MR. MYERS
TESTIFIED THAT, AS A UNION OFFICIAL HE TOOK CARE OF FINANCIAL RECORDS,
THE MEMBERSHIP RECORDS, AND "AS A REPRESENTATIVE, I HANDLE COMPENSATION
MATTERS" (TR. 199) FOR WHICH HE IS GRANTED OFFICIAL TIME. AFTER BEING
INTRODUCED TO MR. MYERS, MR. COX TESTIFIED THAT MR. MYERS ASKED WHETHER
HE WAS A MEMBER AND WHEN HE TOLD HIM HE WAS NOT A MEMBER, MR. MYERS
STATED THAT THERE WOULD BE FEES IF HE WERE NOT A MEMBER. THERE IS NO
DISPUTE THAT MR. MYERS GAVE MR. COX AN 1187, ON WHICH THE AMOUNT OF DUES
WAS BLANK, WHICH MR. COX TOOK WITH HIM AND SIGNED AND RETURNED THE
FOLLOWING DAY (G.C. EXH. 7); HOWEVER, MR. MYERS STATED THAT THE
DISCUSSION OF MEMBERSHIP TOOK PLACE AFTER HE TOLD MR. COX WHAT THE UNION
COULD DO ON HIS BEHALF. ALTHOUGH MR. MYERS TESTIFIED THAT HE DID NOT
REMEMBER FEES HAVING BEEN DISCUSSED, I FULLY CREDIT MR. COX'S TESTIMONY
THAT MR. MYERS STATED THAT THERE WOULD BE FEES IF HE WERE NOT A MEMBER.
INDEED, MR. ORLANDO BERGERSON, LABOR RELATIONS OFFICER AT MCGUIRE,
TESTIFIED THAT, IN A TELEPHONE CONVERSATION IN OCTOBER, 1979, MR. MYERS
STATED TO HIM IN REFERENCE TO MR. COX,
'"WELL, HE'S GOT A CASE, AND IF HE WANTS TO PURSUE IT AND HE'S NOT A
MEMBER, WE'LL HAVE TO
CHARGE HIM FEES FOR ANYTHING THAT HAPPENS OFF BASE."'
"NOW, MYERS SAID THAT OFF BASE IS THE PHYSICAL LIMITATIONS OF
MCGUIRE. THAT AREA IS
HANDLED BY THE COP." (TR. 128).
RATHER THAN PAY FEES FOR REPRESENTATION, MR. COX DECIDED TO JOIN THE
UNION AND, AS NOTED ABOVE, RETURNED THE SIGNED 1187 ON AUGUST 28, 1979.
IT SEEMS PROBABLE, AS MR. COX TESTIFIED, THAT THE AMOUNT OF UNION DUES
WAS NOT MENTIONED BY MR. MYERS, WHICH IS BORNE OUT BY THE FACT THAT THE
AMOUNT OF DUES WAS LEFT BLANK ON THE 1187 FURNISHED, AND SIGNED BY, MR.
COX; HOWEVER, THERE IS NO EVIDENCE WHATEVER THAT MR. MYERS IN ANY WAY
MISREPRESENTED THE AMOUNT OF UNION DUES, NOTWITHSTANDING MR. COX'S
ASSUMPTION, NOT BASED ON ANY STATEMENT BY MR. MYERS, THAT DUES WERE
ABOUT $4.00 PER MONTH AND/OR HIS DISMAY WHEN HE LEARNED, WHEN DEDUCTIONS
BEGAN, THAT DUES WERE, IN FACT, $8.75 PER PAY PERIOD. /13/
11. ON NOVEMBER 6, 1979, REGINA MENDLER, THEN A NON-MEMBER OF THE
UNION, WENT TO THE UNION OFFICE ABOUT A LEAVE RESTRICTION LETTER SHE HAD
RECEIVED. SHE FELT THE LETTER WAS NOT JUSTIFIED AND WANTED TO GRIEVE
THE MATTER. MS. MENDLER TESTIFIED THAT WHEN SHE RECEIVED THE LEAVE
RESTRICTION LETTER ON NOVEMBER 2 SHE HAD GONE NEXT DOOR TO HER SECTION
CIVILIAN PERSONNEL OFFICE TO ASK WHO TO SEE ABOUT FILING A GRIEVANCE AND
TALKED TO A RECEPTIONIST WHOSE NAME WAS RUBY. THE RECEPTIONIST DID NOT
KNOW BUT TOLD MS. MENDLER SHE WOULD MAKE SOME CALLS AND FIND OUT; THAT
THE RECEPTIONIST CAME BACK AND "SAID THAT I HAD AN APPOINTMENT AT 1:30
ON THE 6TH OF NOVEMBER WITH THE UNION OFFICE HERE AT MCGUIRE AND THE
NAME ON THE PAPER WAS -- I WAS TO SEE A MR. CASTELLANO." (TR. 112) MS.
MENDLER FURTHER STATED THAT SHE HAD BEEN INSTRUCTED TO CLEAR THE MATTER
WITH HER SUPERVISOR SINCE THE MEETING WOULD BE DURING DUTY HOURS AND
THAT SHE HAD GIVEN HER SUPERVISOR THE SLIP OF PAPER. SHE TESTIFIED THAT
AFTER HER LUNCH BREAK ON NOVEMBER 6, SHE WAS RELEASED AT 1:30 P.M. FOR
THE MEETING; THAT SHE HAD GONE TO THE UNION OFFICE AND TOLD THE
RECEPTIONIST SHE WAS THERE TO SEE MR. CASTELLANO AND THE RECEPTIONIST,
MS. STORICKS, INTRODUCED HER TO MR. CASTELLANO; THAT THERE WERE A LOT
OF OTHER PEOPLE THERE; AND THAT SHE DID NOT REMEMBER SEEING ANY FOOD ON
MR. CASTELLANO'S DESK.
MS. STORICKS ADMITTED THAT AN APPOINTMENT HAD BEEN MADE FOR MS.
MENDLER FOR 1:30 P.M. ON NOVEMBER 6; BUT DENIED THAT SHE WAS TO SEE MR.
CASTELLANO, AND STATED THAT THE APPOINTMENT WAS TO SEE THE STEWARD FOR
MS. MENDLER'S AREA, AND THAT SHE HAD CALLED MS. MENDLER TO SET UP THE
APPOINTMENT AND HAD NOT TALKED TO ANYONE FROM PERSONNEL, BUT THAT MS.
MENDLER HAD ARRIVED EARLY FOR HER APPOINTMENT, AT 12:45 P.M., AND,
BECAUSE "MR. CASTELLANO HAPPENED TO BE SITTING THERE, AND THE 514TH IS
HIS AREA OF REPRESENTATION" HE TALKED TO MS. MENDLER. MS. STORICKS
ADMITTED THAT MS. MENDLER'S SUPERVISOR HAD CALLED TO CONFIRM MS.
MENDLER'S APPOINTMENT; AND, AFTER STATING SHE DIDN'T REMEMBER WHO WAS
THE STEWARD FOR MS. MENDLER'S AREA, STATED THAT ANY SHOP STEWARD HANDLES
MATTERS IN ANY AREA AND IT COULD HAVE BEEN ANY STEWARD.
MR. VINCENT CASTELLANO, A VICE PRESIDENT OF LOCAL 1778, READILY
ADMITTED THAT HE TALKED TO MS. MENDLER ON NOVEMBER 6; BUT, LIKE MS.
STORICKS, HE INSISTED THAT SHE CAME IN AT ABOUT 12:45 WHILE HE WAS
EATING LUNCH AT HIS DESK; HE ALSO INSISTED THAT MS. MENDLER "WALKED IN
AT THE LAST MINUTE. THAT WAS NOT A SCHEDULED MEETING" (TR. 183). MR.
CASTELLANO TESTIFIED THAT HE HAD A SCHEDULED MEETING AT 1:30 P.M. ON
NOVEMBER 6 WITH CIVIL ENGINEER HEATING PLANT FOR WHICH HE HAD BEEN
RELEASED FROM WORK AT 11:30 A.M. IN ORDER TO PREPARE FOR THE 1:30
MEETING. MR. CASTELLANO STATED THAT HIS NORMAL LUNCH BREAK WHEN AT WORK
IS 11:30 - 12:00; THAT HE WAS "EATING AT THE OFFICE TO PREPARE FOR THE
MEETING" (TR. 137) OR "I PREPARED FOR MY MEETING FIRST AND THEN I WAS
EATING WHEN MISS MENDLER CAME IN" (TR. 182). OF COURSE, THE RECORDS
SHOWED THAT MR. CASTELLANO HAD NOT WORKED AT ALL ON NOVEMBER 6 BUT HAD
BEEN RELEASED FOR UNION ACTIVITY FROM 7:30 A.M. TO 4:00 P.M. (G.C. EXH.
10).
I FOUND MS. MENDLER TO BE A VERY CREDIBLE WITNESS AND HER TESTIMONY
THAT, SHE, IN FACT, HAD AN APPOINTMENT FOR 1:30 P.M. ON NOVEMBER 6,
1979, WAS FULLY CORROBORATED BY THE TESTIMONY OF MS. STORICKS. THE
TESTIMONY OF BOTH MS. STORICKS AND MR. CASTELLANO AS TO THE TIME MS.
MENDLER CAME TO THE UNION OFFICE AND THEIR DENIAL THAT THE APPOINTMENT
HAD BEEN FOR MS. MENDLER TO SEE MR. CASTELLANO WAS UNCONVINCING;
APPEARED CONTRIVED TO AVOID THE ALLEGATION THAT MR. CASTELLANO WAS ON
DUTY, ALBEIT UNION DUTIES, AT THE TIME HE SOLICITED MS. MENDLER'S UNION
MEMBERSHIP; AND MR. CASTELLANO'S TESTIMONY, AS TO THE TIME OF HIS
RELEASE FOR UNION ACTIVITY ON NOVEMBER 6, WAS DIRECTLY CONTRADICTED BY
THE CONTEMPORARY RECORD OF TIME SPENT ON UNION ACTIVITIES, PREPARED BY
CASTELLANO AND APPROVED BY HIS SUPERVISOR (G.C. EXH. 10). RECOGNIZING
THAT, AS MS. STORICKS STATED, MS. MENDLER'S SUPERVISOR HAD CALLED TO
CONFIRM THE 1:30 P.M. TIME FOR MS. MENDLER'S APPOINTMENT, IT WOULD
STRAIN CREDULITY BEYOND ALL REASON TO BELIEVE THAT MS. MENDLER WOULD,
NEVERTHELESS, HAVE BEEN RELEASED AT LEAST 45 MINUTES PRIOR TO A
SCHEDULED 1:30 P.M. MEETING. ACCORDINGLY, I FULLY CREDIT MS. MENDLER'S
TESTIMONY, AND REJECT THE TESTIMONY OF MS. STORICKS AND MR. CASTELLANO,
AND FIND THAT ON NOVEMBER 2, 1979, AN APPOINTMENT HAD BEEN MADE FOR MS.
MENDLER TO TALK TO MR. CASTELLANO AT 1:30 P.M. ON NOVEMBER 5, 1979;
THAT MS. MENDLER WAS RELEASED TO ATTEND THE MEETING AT 1:30 P.M.; THAT
MS. MENDLER ARRIVED AT THE UNION OFFICE SHORTLY AFTER 1:30 P.M., TOLD
MS. STORICKS SHE WAS THERE TO SEE MR. CASTELLANO AND THAT MS. STORICKS
INTRODUCED HER TO MR. CASTELLANO.
MR. CASTELLANO'S TESTIMONY THAT MS. MENDLER OPENED THEIR DISCUSSION
BY STATING,
" . . . AND WHEN SHE CAME IN, SHE TOLD ME SHE WAS NOT AWARE OF THE
UNION BUT SHE WOULD LIKE
TO BECOME A MEMBER." (TR. 138). WAS CATEGORICALLY DENIED BY MS.
MENDLER WHO TESTIFIED THAT SHE DID NOT HAVE ANY INTEREST IN JOINING THE
UNION (TR. 116); THAT AFTER SHE HAD SHOWN MR. CASTELLANO HER COPY OF
THE LEAVE RESTRICTION LETTER AND HE HAD READ IT, HE STATED,
" . . . 'WELL, I THINK WE CAN HANDLE THIS,' AND HE LEFT AND HE CAME
BACK AGAIN AND HE SAID,
'BEFORE I CAN HELP YOU, BEFORE I'M JUSTIFIED TO HELP YOU IN ANY WAY,
YOU HAVE TO DECIDE
WHETHER OR NOT YOU WANT TO JOIN THE UNION . . . OR YOU WOULD AGREE TO
SIGN THIS OTHER FORM
. . . ' THAT READ THAT I WOULD PAY $24 AN HOUR FOR THE SERVICES
RENDERED IF I DIDN'T CHOOSE TO
BE A UNION MEMBER." (TR. 113).
"A. WELL, I SAID, 'I CAN'T AFFORD $24 SO I GUESS IF I NEED THE HELP
AND I DO, I GUESS I'LL
HAVE TO JOIN THE UNION BECAUSE THAT WAS -- HE STATED TO ME SOME $16
AND SOME ODD CENTS OUT OF
YOUR PAY CHECK." (TR. 113-114).
ALTHOUGH MR. CASTELLANO TESTIFIED, "WE REPRESENT ALL MEMBERS OF THE
BARGAINING UNIT, ALL EMPLOYEES OF THE BARGAINING UNIT. MEMBER AND
NON-MEMBER DOES NOT MATTER." (TR. 140-141), IN THE FOLLOWING COLLOQUY
MR. CASTELLANO, WITH PERHAPS A FREUDIAN SLIP, ALSO STATED:
"Q. IF A NON-MEMBER WHO YOU WERE REPRESENTING OR WHO THE LOCAL WAS
REPRESENTING REFUSED TO
JOIN THE UNION, WHAT WOULD THE LOCAL'S RESPONSE BE?
"A. THERE WOULD BE NO RESPONSE. THEY DON'T HAVE TO REPRESENT THE
MEN." (TR. 141).
MR. CASTELLANO ADMITTED HE GAVE MS. MENDLER AN AFFIDAVIT OF CHARGES
AND THAT HE EXPLAINED IT TO HER. I DID NOT FIND CONVINCING HIS
JUSTIFICATION AND, THEREFORE, FULLY CREDIT MS. MENDLER'S TESTIMONY.
AS MS. MENDLER FURTHER TESTIFIED, AFTER MR. CASTELLANO TOLD HER THAT
IF SHE WANTED THE UNION TO HELP HER SHE MUST EITHER JOIN THE UNION OR
SIGN THE FORM PROVING THAT SHE WOULD PAY $24.00 AN HOUR FOR SERVICES
RENDERED, SHE DID SIGN THE 1187; THE UNION DID REPRESENT HER AND THE
LEAVE RESTRICTION WAS WITHDRAWN; AND SHE HAS NOT SOUGHT TO REVOKE HER
UNION MEMBERSHIP.
12. ON FEBRUARY 28, 1980, CHERYL CHARITY, A NON-MEMBER OF THE UNION,
WENT TO THE UNION OFFICE BECAUSE A PROMOTION TO A GS-4 POSITION FROM A
TRAINEE POSITION HAD NOT BECOME EFFECTIVE ON FEBRUARY 3, 1980, AS
SCHEDULED, BUT HAD COME TWO WEEKS LATER DUE TO LOST PAPERWORK AT THE
CIVILIAN PERSONNEL OFFICE. SHE SAW MR. KEITH VAN LAARHAVEN, A VICE
PRESIDENT OF LOCAL 1778, AND FILLED OUT A COMPLAINT FORM AND SIGNED A
POWER OF ATTORNEY. NO ACTION WAS TAKEN ON HER COMPLAINT AT THAT TIME.
MS. CHARITY TESTIFIED THAT MS. STORICKS CALLED HER AND ASKED HER TO COME
TO THE UNION OFFICE ON MARCH 5, 1980. MS. STORICKS ADMITTED MEETING
WITH MS. CHARITY ON MARCH 5, BUT DENIED THAT SHE HAD CALLED HER. I GIVE
NO CREDENCE WHATEVER TO MS. STORICKS' TESTIMONY IN THIS REGARD AND FULLY
CREDIT MS. CHARITY'S TESTIMONY. MS. STORICKS ADMITTED THAT SHE GAVE MS.
CHARITY A FORM 1187 AND AN AFFIDAVIT OF CHARGES; THAT SHE EXPLAINED THE
BENEFITS OF MEMBERSHIP; THAT SHE "EXPLAINED TO HER THAT IT DID COST
SOMETHING TO RUN THE LOCAL AND FOR US TO EXIST AND ASKED HER IF SHE
WOULD BE WILLING TO CONTRIBUTE TO THE COSTS" (TR. 40); THAT "I TOLD HER
THAT WE'RE ASKING -- I TOLD HER IT COST SOMETHING TO RUN THE LOCAL AND
WE WOULD LIKE HER TO CONTRIBUTE TO THAT COST." (TR. 41); THAT SHE
EXPLAINED THE $24.00 PER HOUR CHARGE AND, IN ADDITION, THE FURTHER
POTENTIAL COSTS TO HER IF HER CASE WENT TO ARBITRATION, WHICH MS.
CHARITY TESTIFIED MS. STORICKS HAD STATED AS RUNNING ANYWHERE FROM
$500.00 TO $1,000.00. MS. STORICKS ADMITTED, PURSUANT TO HER REGULAR
PRACTICE, THAT SHE DID NOT TELL MS. CHARITY THAT SHE WOULD BE
REPRESENTED BY THE UNION WHETHER OR NOT SHE JOINED THE UNION OR SIGNED
THE AFFIDAVIT OF CHARGES; HOWEVER MS. STORICKS DID STATE THAT SHE TOLD
MS. CHARITY THAT HER COMPLAINT "WOULD HAVE BEEN HANDED OVER TO THE UNION
SHOP STEWARD AND HE WOULD BE IN TOUCH WITH HER." (TR. 44).
MS. CHARITY TESTIFIED, IN PART, AS FOLLOWS:
"Q. WHAT, IF ANYTHING, DID YOU DO WITH THE FORMS?
"A. I ASKED HER (STORICKS) DID I HAVE TO SIGN IT THEN, AND I THINK
SHE SAID NO.
"I SAID, 'WELL, I WILL GET BACK TO YOU,' BUT SHE INFORMED ME THAT
UNLESS I FILLED OUT ONE
FORM OR THE OTHER, THE UNION WASN'T GOING TO DO ANYTHING SO I TOOK
BOTH FORMS AND
LEFT." (TR. 103).
MS. CHARITY TESTIFIED THAT, ALMOST IMMEDIATELY AFTER SHE RETURNED TO
HER OFFICE, MR. CHARLIE GOULD, A UNION STEWARD, CALLED HER AND STATED
THAT ". . . THERE WERE A COUPLE OF OTHER CASES FROM CP THAT HAD THE SAME
PROBLEM AS MINE. THEN HE SAID HE WOULD GET BACK TO ME AT A LATER DATE."
(TR. 105).
MS. CHARITY DID NOT JOIN THE UNION AND DID NOT SIGN AN AFFIDAVIT OF
CHARGES, NOR DID SHE HEAR FURTHER FROM THE UNION; HOWEVER, BY LETTER
DATED JUNE 20, 1980, CHIEF SHOP STEWARD WILLIAM V. FINLEY, ON BEHALF OF
FIVE EMPLOYEES INCLUDING MS. CHARITY, SOUGHT RELIEF FROM THE COMPTROLLER
GENERAL (RES. EXH. 2). I AM AWARE, AS GENERAL COUNSEL STATES, THAT MR.
FINLEY'S LETTER IS DATED NEARLY TWO MONTHS AFTER THE COMPLAINT AND
NOTICE OF HEARING HAD ISSUED AND THAT MS. CHARITY KNEW NOTHING OF THE
LETTER UNTIL TWO DAYS PRIOR TO THE HEARING. (TR. 107).
13. IN MARCH, 1980, MR. PETER PANAGOTOPULOS, A NON-MEMBER OF THE
UNION, WAS RATED INELIGIBLE FOR A MERIT PROMOTION FOR WHICH HE HAD
APPLIED. AGENCY'S OFFICE OF EMPLOYEE RELATIONS TOLD HIM HE WOULD HAVE
TO GO THROUGH THE UNION TO GRIEVE THE MATTER. ACCORDINGLY, ON APRIL 1,
1980, MR. PANAGOTOPULOS WENT TO THE UNION OFFICE AND MET MS. STORICKS.
AFTER GIVING HIM A COMPLAINT FORM AND A POWER OF ATTORNEY, WHICH HE
FILLED OUT, MS. STORICKS THEN PRESENTED HIM WITH AN APPLICATION TO JOIN
THE UNION (FORM 1187) AND AN AFFIDAVIT OF CHARGES. HE TOLD MS. STORICKS
HE DID NOT WANT TO JOIN THE UNION AND DIDN'T WANT TO SIGN ANY FORM FOR
$24 AN HOUR. MS. STORICKS TOLD HIM "THEY WOULD CONTACT ME" (TR. 80) AND
HE LEFT.
WHEN MR. PANAGOTOPULOS ARRIVED AT HIS OFFICE, WHICH HE SHARES WITH A
MR. KIMENHOUR, A UNION STEWARD, HE TOLD MR. KIMENHOUR WHAT HAD OCCURRED
AT THE UNION OFFICE AND HE STATED THAT MR. KIMENHOUR STATED THAT, IN HIS
OPINION, THE UNION WOULD NOT REPRESENT HIM. MR. PANAGOTOPULOS LATER
RECEIVED A TELEPHONE CALL IN WHICH HE WAS INFORMED THAT THE UNION WOULD
NOT REPRESENT HIM (TR. 83). ON APRIL 2, 1980, MR. PANAGOTOPULOS WENT TO
THE BASE LEGAL OFFICE AND GAVE AN AFFIDAVIT ABOUT THE DENIAL OF
REPRESENTATION. WHEN HE RETURNED TO HIS OFFICE, HE TOLD MR. KIMENHOUR
THAT HE HAD GIVEN AN AFFIDAVIT AND ON OR ABOUT, APRIL 4, 1980, MR.
PANAGOTOPULOS WAS TOLD BY MR. KIMENHOUR THAT THE UNION WOULD NOW
REPRESENT HIM AND THAT HE HAD ARRANGED A MEETING BY MR. CASTELLANO, A
UNION VICE PRESIDENT, WITH MR. LONG, THE SUPERVISOR WHO HAD RATED MR.
PANAGOTOPULOS INELIGIBLE. MR. CASTELLANO MET WITH MR. LONG; MR. LONG
MAINTAINED HIS POSITION THAT MR. PANAGOTOPULOS WAS INELIGIBLE AND, AT
THE DATE OF THE HEARING, NO FURTHER ACTION HAD BEEN TAKEN. HOWEVER, ON
MAY 13, 1980, MR. PANAGOTOPULOS WROTE A LETTER INDICATING THAT SINCE THE
UNION WAS REPRESENTING HIM, HIS AFFIDAVIT WAS "USELESS (SIC) BECAUSE THE
UNION IS HANDLING MY GRIEVANCE /14/ ." (RES. EXH. 1).
14. RESPONDENT OFFERED DOCUMENTARY EVIDENCE AND TESTIMONY TO SHOW
THAT IT DOES, IN FACT, REPRESENT NON-MEMBERS (RES. EXHS. 6-16; 18-22).
GENERAL COUNSEL VERY PROPERLY NOTES THAT RESPONDENT EXHIBITS 8-12, 15
AND 16 INVOLVE ALLEGED REPRESENTATIONAL ACTIVITIES AFTER ISSUANCE OF THE
COMPLAINT AND THAT RESPONDENT EXHIBITS 6, 7, 13 AND 14 RELATE TO SUCH
ALLEGED ACTIVITIES AFTER COMMENCEMENT OF THE AUTHORITY'S INVESTIGATION
OF THE CHARGE FILED ON DECEMBER 27, 1979. RESPONDENT EXHIBITS 18-22
REPRESENT CORRESPONDENCE ON BEHALF OF AN EMPLOYEE, ALLEGEDLY A
NON-MEMBER, TO A MEMBER OF CONGRESS CONCERNING A COMPENSATION MATTER.
CONCLUSIONS
A. CONDITIONING REPRESENTATION OF NON-MEMBERS.
THERE IS NO DISPUTE THAT LOCAL 1778 HAS, SINCE THE SPRING OF 1978,
CONFRONTED EACH NON-MEMBER WHO HAS SOUGHT THE ASSISTANCE OF THE UNION
WITH A FORM 1187, DUES DEDUCTION AUTHORIZATION, AND AN AFFIDAVIT OF
CHARGES. MS. STORICKS, AN EMPLOYEE AND AGENT OF LOCAL 1778, WHO
NORMALLY SEES ALL MEMBERS AND NON-MEMBERS WHEN THEY COME TO THE UNION
OFFICE, MADE IT CLEAR THAT, AS SHE WAS INSTRUCTED BY THE EXECUTIVE BOARD
OF LOCAL 1778, SHE DOES, IN FACT, PRESENT A FORM 1187 AND AN AFFIDAVIT
OF CHARGES TO EACH NON-MEMBER IN ORDER, AS SHE ASSERTED, TO ENCOURAGE
NON-MEMBERS TO JOIN THE UNION. INDEED, AS IN THE CASE OF MS. CHERYL
CHARITY, WHEN A NON-MEMBER FILES A COMPLAINT WITHOUT HAVING BEEN
PRESENTED WITH THE FORM 1187 AND THE AFFIDAVIT OF CHARGES, MS. STORICKS
CALLS THEM TO THE UNION OFFICE FOR THAT PURPOSE.
I HAVE NO DOUBT, CERTAINLY, THAT A UNION MAY ENCOURAGE MEMBERSHIP IN
THE UNION, OR THAT IT MAY EVEN ENCOURAGE VOLUNTARY CONTRIBUTIONS FROM
NON-MEMBERS FOR REPRESENTATIONAL ASSISTANCE; BUT ENCOURAGEMENT MAY NOT
LAWFULLY BE CONVOLUTED TO A THREAT, HOWEVER VEILED OR SUBTLE, THAT
REPRESENTATION WILL NOT BE PROVIDED UNLESS THE BARGAINING UNIT EMPLOYEE
JOINS THE UNION OR AGREES TO PAY FEES FOR REPRESENTATION. /15/
THE RECORD SHOWS WITHOUT DISPUTE THAT RESPONDENT IN 1978 EMABARKED ON
A DELIBERATE SCHEME TO COERCE NON-MEMBERS, WHO SOUGHT THE ASSISTANCE OF
THE UNION IN REPRESENTATIONAL MATTERS, TO JOIN THE UNION BY: A)
CONFRONTING EACH NON-MEMBER WITH AN 1187, DUES DEDUCTION AUTHORIZATION
AND AN AFFIDAVIT OF CHARGES; B) INSISTING THAT THE NON-MEMBER SIGN ONE
OR THE OTHER; C) AT THE VERY LEAST, IMPLYING THAT REPRESENTATION WOULD
NOT BE PROVIDED UNLESS THE INDIVIDUAL JOINED THE UNION OR SIGNED THE
AFFIDAVIT OF CHARGES. THUS, MS. STORICKS ADMITTED, "I SAY THAT WE WOULD
LIKE YOU TO SIGN ONE OR THE OTHER . . . THE AFFIDAVIT OF CHARGES OR THE
MEMBERSHIP FORM" AND THAT SHE DOES NOT TELL THE EMPLOYEE THAT SIGNING
EITHER FORM IS PURELY VOLUNTARY AND/OR THAT IF THE EMPLOYEE CHOOSES NOT
TO SIGN HE, OR SHE, WOULD BE REPRESENTED BY THE UNION. THERE CAN BE NO
SERIOUS QUESTION THAT THE AFFIDAVIT OF CHARGES WAS, AND IS, BY DESIGN, A
TOOL OF COERCION. THE HOURLY RATE OF $24.00 PER HOUR, THE OPEN-ENDED
HOURS, AND CHARGES OVER AND ABOVE THE HOURLY RATE OBLIGATION, WHICH MS.
STORICKS FREELY ADVISED MIGHT RUN BETWEEN $500.00 TO $1,000.00,
DETERRED, AS INTENDED, ANY EMPLOYEE FROM SIGNING AN AFFIDAVIT OF
CHARGES. BY COMPARISON, UNION DUES APPEARED MODEST. EMPLOYEES MENDLER
AND COX WERE DEFINITELY INFLUENCED TO JOIN THE UNION BY RESPONDENT'S
STATEMENTS CONCERNING CHARGES AND FEES FOR NON-MEMBERS AND RESPONDENT
ADMITTED THAT OTHER EMPLOYEES HAD SIGNED DUES ALLOTMENT AUTHORIZATION
AFTER BEING PRESENTED WITH THE TWO FORMS.
THE CONFRONTATION OF EACH NON-MEMBER WHO COMES TO THE UNION OFFICE
FOR REPRESENTATIONAL ASSISTANCE WITH A MEMBERSHIP APPLICATION AND A FORM
REQUIRING THE PAYMENT OF FEES COUPLED WITH THE REQUEST THAT THE EMPLOYEE
SIGN ONE OR THE OTHER VIOLATES THE RESPONSIBILITY IMPOSED BY SECTION
14(A)(1) OF THE STATUTE. THE UNION MAY NOT CONDITION REPRESENTATION ON
LABOR ORGANIZATION MEMBERSHIP NOR MAY IT DISCRIMINATE IN REPRESENTING
THE INTERESTS OF ALL EMPLOYEES IN THE UNIT. PRESENTATION OF A UNION
MEMBERSHIP FORM AS PART OF THE UNION'S PROCEDURE TO INSTITUTE, OR TO
PROCESS, A COMPLAINT, EVEN IF, AS MS. STORICKS TESTIFIED, THE EMPLOYEE
IS TOLD ONLY THAT THE UNION "WOULD LIKE YOU TO SIGN", VIOLATES SECTION
14(A)(1) OF THE STATUTE AND CONSTITUTES AN UNFAIR LABOR PRACTICE IN
VIOLATION OF SECTION 16(B)(8) OF THE STATUTE WHETHER OR NOT SUCH CONDUCT
CONSTITUTES INTERFERENCE, RESTRAINT, OR COERCION WITHIN THE MEANING OF
SECTION 16(B)(1) OF THE STATUTE. NOR, OF COURSE, DUES THE ACTUAL
PRACTICE OF THE UNION, OF PRESENTING THE NON-MEMBER WITH A UNION
MEMBERSHIP FORM, 1187, AND AN AFFIDAVIT OF CHARGES, GIVING THE
NON-MEMBER A CHOICE, I.E., " . . . WE WOULD LIKE YOU TO SING ONE OR THE
OTHER", MAKE THE PRACTICE ANY LESS VIOLATIVE OF SECTION 14(A)(1) AND
16(B)(8) OF THE STATUTE. SECTION 14(A)(1) IMPOSES AN AFFIRMATIVE
OBLIGATION ON THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE UNIT WITHOUT REGARD TO UNION MEMBERSHIP. ANY
ACTION BY A UNION WHICH WOULD COMPROMISE THIS OBLIGATION, WHETHER BY
SUBMITTING A UNION MEMBERSHIP FORM OR FEE SCHEDULE, IS PRESUMPTIVELY
VIOLATIVE OF SECTION 14(A)(1) AND THE UNION, IF IT IS TO AVOID THE
CONSEQUENCES OF ITS OWN ACTION, MUST TAKE APPROPRIATE ACTION TO ASSURE
THAT THE NON-MEMBER IS INFORMED THAT THE UNION WILL REPRESENT HIS
INTERESTS WITHOUT REGARD TO UNION MEMBERSHIP. CLEARLY MS. STORICKS' "WE
WOULD LIKE" LANGUAGE, EVEN IF INTENDED, AS RESPONDENT ASSERTS, TO MEAN
THAT SIGNING "ONE OR THE OTHER . . . THE AFFIDAVIT OF CHARGES OR THE
MEMBERSHIP FORM" WAS VOLUNTARY, WAS WHOLLY INEFFECTUAL TO OVERCOME THE
PRESUMTIVE VIOLATION OF SECTION 14(A)(1) WHICH OCCURRED WHEN THE UNION
INTERJECTED THE UNION MEMBERSHIP FORM AND THE AFFIDAVIT OF CHARGES AND
STATED "WE WOULD LIKE YOU TO SIGN ONE OR THE OTHER." /16/
VIOLATION OF SECTION 16(B)(8) ALSO, DERIVATIVELY, CONSTITUTES A
VIOLATION OF 16(B)(1). INDEED, INTERJECTION BY THE UNION OF UNION
MEMBERSHIP IN REPRESENTATION OF THE INTEREST OF EMPLOYEES IN VIOLATION
OF SECTIONS 14(A)(1) AND 16(B)(8) CONSTITUTES AN INDEPENDENT VIOLATION
OF SECTION 16(B)(1) SINCE SUCH CONDUCT WOULD INHERENTLY INTERFERE WITH,
RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED UNDER
THE STATUTE, INCLUDING THE PROTECTED RIGHT OF EACH EMPLOYEE "TO FORM,
JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH
ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL." (SECTION 2).
MOREOVER, THE RECORD CONVINCINGLY DEMONSTRATED THAT THE UNION INTERFERED
WITH, RESTRAINED, OR COERCED EMPLOYEES IN THE EXERCISE OF THEIR
PROTECTED RIGHTS IN VIOLATION OF SECTIONS 14(A)(1), 16(B)(1) AND (8) OF
THE STATUTE, INTER ALIA, IN THE FOLLOWING MANNER. FIRST, THE
CONFRONTATION OF EACH NON-MEMBER WITH A MEMBERSHIP FORM AND A FORM FOR
THE PAYMENT OF FEES, COUPLED WITH THE STATEMENT "WE WOULD LIKE YOU TO
SIGN ONE OR THE OTHER" IMPLIED, AS THE UNION OBVIOUSLY INTENDED IT
SHOULD, THAT UNLESS ONE FORM OR THE OTHER WAS SIGNED THE UNION WOULD NOT
REPRESENT THE EMPLOYEE. SECOND, UTILIZATION OF THE AFFIDAVIT OF CHARGES
WAS, ITSELF, A TOOL OF COERCION. THIRD, MS. STORICKS, WHO NORMALLY SAW
ALL EMPLOYEES WHEN THEY CAME TO THE UNION OFFICE, AS A UNIFORM PRACTICE
DID NOT ADVISE NON-MEMBERS THAT THE UNION WOULD REPRESENT THEM WHETHER
THEY JOINED THE UNION OR SIGNED THE AFFIDAVIT OF CHARGES. FOURTH, THE
CREDITED TESTIMONY OF MS. MENDLER SHOWS THAT MR. CASTELLANO A VICE
PRESIDENT OF LOCAL 1778 TOLD HER THAT "BEFORE I CAN HELP YOU, BEFORE I'M
JUSTIFIED TO HELP YOU ANY WAY, YOU HAVE TO DECIDE WHETHER OR NOT YOU
WANT TO JOIN THE UNION . . . OR YOU WOULD AGREE TO SIGN THIS OTHER FORM
(AFFIDAVIT OF CHARGES)"'; /17/ THE CREDITED TESTIMONY OF MR. COX SHOWS
THAT MR. MYERS, SECRETARY-TREASURER OF LOCAL 1718, TOLD MR. COX, AFTER
HE ASCERTAINED THAT MR. COX WAS NOT A MEMBER OF THE UNION, THAT THERE
WOULD BE FEES IF HE WERE NOT A MEMBER. MR. COX'S TESTIMONY WAS FULLY
CORROBORATED BY MR. BERGERSON WHO TESTIFIED THAT MR. MYERS TOLD HIM IN A
TELEPHONE CONVERSATION THAT IF MR. COX WERE NOT A MEMBER AND WANTED THE
UNION TO PURSUE HIS COMPENSATION CLAIM, "WE'LL HAVE TO CHARGE HIM FEES".
THE RECORD FURTHER SHOWS WITHOUT CONTRADICTION THAT AFTER MR.
PANAGOTOPULOS TOLD MS. STORICKS THAT HE DID NOT WANT TO JOIN THE UNION
OR SIGN THE AFFIDAVIT OF CHARGES SHE TOLD HIM "THEY WOULD CONTACT" HIM;
THAT WHEN HE RETURNED TO HIS OFFICE WHICH HE SHARED WITH MR. KIMENHOUR,
A UNION STEWARD, MR. PANAGOTOPULOS TOLD MR. KIMENHOUR WHAT HAD OCCURRED
AT THE UNION OFFICE AND MR. KIMENHOUR TOLD MR. PANAGOTOPULOS THAT, IN
HIS OPINION, THE UNION WOULD NOT REPRESENT HIM; AND, MR. PANAGOTOPULOS
LATER RECEIVED A TELEPHONE CALL IN WHICH HE WAS INFORMED THAT THE UNION
WOULD NOT REPRESENT HIM. MR. PANAGOTOPULOS WENT TO THE BASE LEGAL
OFFICE TO COMPLAIN ABOUT THE DENIAL OF REPRESENTATION AND GAVE AN
AFFIDAVIT. WHEN HE RETURNED TO HIS OFFICE, HE TOLD MR. KIMENHOUR WHAT
HE HAD DONE AND TWO DAYS LATER MR. KIMENHOUR TOLD MR. PANAGOTOPULOS THAT
THE UNION WOULD, NOW REPRESENT HIM AND HE, KIMENHOUR, HAD ARRANGED FOR A
MEETING BY MR. CASTELLANO, A UNION VICE PRESIDENT, AND MR. LONG, THE
SUPERVISOR WHO HAD RATED MR. PANAGOTOPULOS INELIGIBLE FOR THE MERIT
PROMOTION FOR WHICH HE HAS APPLIED. /18/ FROM THE FOREGOING, THE RECORD
SHOWS, INTER ALIA, THAT THE UNION TOLD NON-MEMBERS THAT THE UNION WOULD
NOT REPRESENT THEIR INTERESTS UNLESS THEY JOINED THE UNION OR SIGNED THE
AFFIDAVIT OF CHARGES; THAT THE UNION TOLD NON-MEMBERS THAT FEES WOULD
BE CHARGED, WHICH WERE NOT REQUIRED OF MEMBERS; AND THAT REPRESENTATION
WAS REFUSED WHEN AN EMPLOYEE REFUSED TO JOIN THE UNION OR TO PAY FEES
FOR REPRESENTATION. WITHOUT MORE, BY SUCH CONDUCT THE UNION, NOT ONLY
VIOLATED ITS RESPONSIBILITY TO REPRESENT THE INTERESTS OF ALL EMPLOYEES
IN THE UNIT WITHOUT DISCRIMINATION OR WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP, BUT INTERFERED WITH, RESTRAINED, OR COERCED
EMPLOYEES IN THE EXERCISE BY THE EMPLOYEE OF RIGHTS UNDER THE STATUTE IN
VIOLATION OF SECTION 16(B)(1).
ALTHOUGH THE NLRB HAS TREATED DISPARATE TREATMENT OF NON-MEMBERS AS
DISTINCT FROM THE DUTY OF FAIR REPRESENTATION OF MEMBERS, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL UNION NO. 697,
AFL-CIO, 223 NLRB 832, 91 LRRM 1529 (1976); BUT, SEE, THE WALLACE
CORPORATION V. NLRB, 323 U.S. 248, 255-256 (1944), SECTION 14(A)(1) OF
THE STATUTE ENCOMPASSES BOTH A DUTY OF FAIR REPRESENTATION (WITHOUT
DISCRIMINATION) AND THE DISPARATE TREATMENT OF NON-MEMBERS (WITHOUT
REGARD TO LABOR ORGANIZATION MEMBERSHIP). IT IS RECOGNIZED, OF COURSE,
THAT THE DUTY OF FAIR REPRESENTATION MAY EXTEND SUBSTANTIALLY BEYOND
DISCRIMINATION, SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 987, 3 FLRA NO. 115 (1980), AND IN PARTICULAR THE
DISCUSSION AND CASES CITED IN THE DECISION OF THE CHIEF ADMINISTRATIVE
LAW JUDGE. INDEED, RESPONDENT'S RELIANCE ON PORTIONS OF JUDGE FENTION'S
DECISION AS WARRANTING RESPONDENT'S CONDUCT IN THIS CASE IS WHOLLY
MISPLACED. CLEARLY, JUDGE FENTON ADDRESSED SOLELY APPLICATION OF A
UNION'S RESPONSIBILITY, PURSUANT TO ITS DUTY OF FAIR REPRESENTATION, FOR
AN INNOCENT MISTAKE OR DISAGREEMENT WITH A UNION'S EXERCISE OF
DISCRETION (THERE AN INNOCENT MISTAKE WHICH MAY HAVE TERMINATED A
MERITORIOUS GRIEVANCE). I FULLY AGREE WITH HIS VIEW THAT NO BREACH OF
DUTY OF FAIR REPRESENTATION SHOULD BE PREDICATED MERELY UPON PROOF THAT
A UNION WAS "INEPT, NEGLIGENT, UNWISE, INSENSITIVE OR INEFFECTUAL";
BUT, RATHER, THAT "SUCH BREACHES SHOULD BE FOUND ONLY WHERE THE UNION'S
CONDUCT WAS IMPROPERLY MOTIVATED . . . OR BY IRRELEVANT OR INVIDIOUS
CONSIDERATIONS . . . OR WHERE IT WAS WHOLLY ARBITRARY OR GROSSLY
NEGLIGENT." HE NOTED THAT A BROADER, MORE COMPREHENSIVE RULE WOULD BE
DESTRUCTIVE OF GOOD BARGAINING RELATIONSHIPS, OF RESPONSIBLE
REPRESENTATION AND EVEN . . . OF THE ORGANIZATION ITSELF; THAT THE
SUPREME COURT; IN IBEW V. FOUST, 99 S.CT. 2121, 101 LRRM 2365 (1979),
HAD BARRED PUNITIVE DAMAGES IN A FAIR REPRESENTATION SUIT, INDICATING
THE NEED TO PROTECT THE UNION'S FINANCIAL RESOURCES AND THEREBY ITS
EFFECTIVENESS; AND HE STATED, "THIS FACTOR ACQUIRES EVEN GREATER WEIGHT
IN THE FEDERAL SECTOR WHERE LABOR ORGANIZATIONS CANNOT COMPEL THE
PAYMENT OF DUES OR SERVICE FEES AND WHERE THEY OFTEN REPRESENT UNITS
WHICH DWARF THEIR DUES - PAYING MEMBERSHIP", A VIEW WITH WHICH I, ALSO,
FULLY AGREE IN THE CONTEXT WHICH JUDGE FENTON CAREFULLY STATED ITS
APPLICATION. OBVIOUSLY, HIS REFERENCE TO RIGHTS PROTECTED UNDER SECTION
1(A) OF EXECUTIVE ORDER 11491 (SECTION 2 OF THE STATUTE) MEANS THAT HE
WOULD FIND A BREACH OF DUTY OF FAIR REPRESENTATION WHERE, AS HERE, SUCH
BREACH WAS IMPROPERLY MOTIVATED BY SECTION 1(A), NOW SECTION 2 OF THE
STATUTE, CONSIDERATIONS. MOREOVER, THE PRESENT CASE, UNLIKE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, SUPRA, WHICH AROSE UNDER EXECUTIVE
ORDER 11491, AS AMENDED, IS GOVERNED BY THE PROVISIONS OF THE STATUTE
AND THE OBLIGATION OF AN EXCLUSIVE REPRESENTATIVE TO REPRESENT THE
INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND
WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP IS NOW GOVERNED BY QUITE
SPECIFIC STATUTORY LANGUAGE AND NO LONGER IS SUBJECT MERELY TO THE
GENERAL OBLIGATION OF FAIR REPRESENTATION. SINCE IT IS UNNECESSARY FOR
THE DECISION OF ANY ISSUE IN THIS CASE, I NEITHER REACH, NOR HAVE I
GIVEN CONSIDERATION TO, LIABILITY OF RESPONDENT UNDER ITS DUTY OF FAIR
REPRESENTATION BEYOND THE RESPONSIBILITY SPECIFICALLY IMPOSED BY SECTION
14(A)(1) OF THE STATUTE.
B. SOLICITATION OF UNION MEMBERSHIP DURING DUTY TIME.
THE PREPONDERANCE OF THE CREDITED TESTIMONY AND EVIDENCE SHOWS, AND I
FIND, THAT BOTH MR. MYERS AND MR. CASTELLANO SOLICITED UNION MEMBERSHIP
DURING DUTY HOURS AND, SPECIFICALLY, THAT NEITHER WAS ON A MEAL BREAK AT
THE TIME OF THE SOLICITATION OF MEMBERSHIP OF MR. COX (BY MR. MYERS AT
APPROXIMATELY 10:30 A.M. ON AUGUST 27, 1979) AND OF MS. MENDLER (BY MR.
CASTELLANO AT APPROXIMATELY 1:30 P.M. ON NOVEMBER 6, 1979). MS. MENDLER
WAS SPECIFICALLY SHOWN TO HAVE BEEN RELEASED ON DUTY TIME TO GO TO THE
UNION OFFICE AND, ACCORDINGLY, SHE WAS ON DUTY TIME WHEN MR. CASTELLANO
SOLICITED HER MEMBERSHIP IN THE UNION. MR. COX WENT TO THE UNION OFFICE
DURING DUTY HOURS AND THERE WAS NO EVIDENCE OR TESTIMONY THAT HE WAS ON
BREAK TIME. THEREFORE, I DRAW THE INFERENCE THAT HE WAS ON DUTY TIME
WHEN MR. MYERS SOLICITED HIS MEMBERSHIP IN THE UNION.
SECTION 31(B) PROVIDES, IN PART, AS FOLLOWS:
"(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE
INTERNAL BUSINESS OF A LABOR
ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP . . . ) SHALL
BE PERFORMED DURING THE
TIME THE EMPLOYEE IS IN A NON-DUTY STATUS." (5 U.S.C. 7131(B)).
WHILE IT IS CLEAR THAT MESSRS. MYERS AND CASTELLANO WERE ON DUTY TIME
(CLOCK TIME) IT IS EQUALLY CLEAR THAT EACH HAD BEEN RELEASED ON OFFICIAL
TIME TO ATTEND TO UNION DUTIES AT THE UNION OFFICE AND THAT EACH
SOLICITED MEMBERSHIP OF AN EMPLOYEE IN CONNECTION WITH THE PERFORMANCE
OF UNION DUTIES FOR WHICH EACH HAD BEEN GRANTED OFFICIAL TIME, I.E., MR.
MYERS IN CONNECTION WITH A COMPENSATION MATTER (HE TESTIFIED THAT HIS
REPRESENTATIONAL DUTIES, FOR COMPENSATION) AND MR. CASTELLANO IN
CONNECTION WITH A GRIEVANCE (HIS REPRESENTATIONAL DUTIES, FOR WHICH HE
WAS GRANTED OFFICIAL TIME, INCLUDED THE HANDLING OF GRIEVANCES). AS MR.
MYERS AND MR. CASTELLANO HAD BEEN RELEASED TO PERFORM UNION DUTIES,
NEITHER WAS IN A DUTY STATUS IN THE SENSE OF AGENCY WORK TIME.
NEVERTHELESS, IT MAY NOT BE SAID THAT THEY WERE IN A "NONWORK TIME"
STATUS, SUCH AS BREAK TIME, CF. OKLAHOMA CITY AIR LOGISTICS CENTER
(AFLC), TINKER AIR FORCE BASE AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916, CASE NO. 6-CA-175 (ALJ, MAY 23, 1980).
GENERAL COUNSEL AND THE CHARGING PARTY ASSERT THAT EACH WAS IN A DUTY
STATUS AT THE TIME OF SOLICITATION OF MEMBERSHIP AND, THEREFORE, THE
SOLICITATION VIOLATED SECTION 31(B) AND CONSTITUTED AN UNFAIR LABOR
PRACTICE UNDER SECTION 16(B)(8). LITERALLY, PERHAPS, THEIR CONSTRUCTION
OF SECTION 31(B) WOULD SUPPORT A VIOLATION. I AM AWARE THAT CONGRESSMAN
FORD STATED, IN EXPLAINING THE UDAL SUBSTITUTE, THAT:
"SECTION 7132(B) OF THE COMPROMISE (ENACTED WITHOUT CHANGE AS
7131(B)) PRECLUDES THE USE OF
OFFICIAL TIME BY EMPLOYEES FOR CONDUCTING THE INTERNAL BUSINESS OF A
LABOR ORGANIZATION. THIS
SUBSECTION SPECIFICALLY PROVIDED THAT EMPLOYEES SHALL NOT SOLICIT
MEMBERSHIPS . . . ON
OFFICIAL TIME." (LEG. HISTORY P. 957). NEVERTHELESS, WHERE, AS HERE,
THE SOLICITATION OCCURS IN THE COURSE OF THE ACTIVITY FOR WHICH OFFICIAL
TIME HAS BEEN GRANTED, I DO NOT FIND THAT SOLICITATION VIOLATES SECTION
31(B) OF THE STATUTE, NOTWITHSTANDING THAT, FOR REASONS SET FORTH ABOVE,
THE SOLICITATION HAS BEEN FOUND TO VIOLATE SECTIONS 14(A)(1), 16(B)(1)
AND (8) OF THE STATUTE. ACCORDINGLY, I SHALL RECOMMEND THAT THIS
PORTION OF THE COMPLAINT BE DISMISSED.
HAVING FOUND THAT RESPONDENT HAS ENGAGED, AND IS ENGAGING, IN CERTAIN
CONDUCT IN VIOLATION OF SECTIONS 14(A)(1), 16(B)(1) AND (8) OF THE
STATUTE, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7), AND
SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5 C.F.R. CHAPTER
XIV, SECTION 2423.26, FED.REG., VOL. 45, NO. 12, JANUARY 17, 1980, THE
AUTHORITY HEREBY ORDERS THAT AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778, AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) SUBMITTING UNION MEMBERSHIP FORMS (FORM 1187) AND/OR FORMS FOR
PAYMENT OF FEES FOR
REPRESENTATIONAL SERVICES (AFFIDAVIT OF CHARGES) TO NON-MEMBERS WHO
SEEK REPRESENTATION OF
THEIR INTERESTS.
(B) CONDITIONING REPRESENTATION OF NON-MEMBERS ON THEIR JOINING THE
UNION OR ON THEIR
AGREEING TO PAY FEES FOR REPRESENTATION.
(C) FAILING OR REFUSING TO REPRESENT THE INTERESTS OF ALL EMPLOYEES
IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE
IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE OR OTHERWISE FAILING
OR REFUSING TO COMPLY WITH
ANY PROVISION OF THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE STATUTE:
(A) DISCONTINUE ALL USE OF THE DOCUMENT ENTITLED "AFFIDAVIT OF
CHARGES."
(B) OFFER TO ACCEPT THE IMMEDIATE RESIGNATION OF MR. ROY B. COX AND
MS. REGINA MENDLER AS
MEMBERS OF THE UNION; FORTHWITH TERMINATE THE DUES AUTHORIZATION
EXECUTED BY EACH; AND
REIMBURSE MR. COX AND MS. MENDLER FOR ALL UNION DUES AND FEES PAID BY
MR. COX ON AND AFTER
AUGUST 27, 1979, AND PAID BY MS. MENDLER ON AND AFTER NOVEMBER 6,
1979, TOGETHER WITH INTEREST
AT THE RATE OF 12% PER ANNUM UNTIL PAID IN FULL. /19/
(C) ADVISE ALL EMPLOYEES IN THE UNIT IT REPRESENTS THAT LOCAL 1778
WILL REPRESENT THE
INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND
WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP.
(D) POST ON EACH UNION BULLETIN BOARD AT HEADQUARTERS, 438TH AIR BASE
GROUP, MCGUIRE AIR
FORCE BASE, AND AT THE OFFICE OF LOCAL 1778, COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778,
AFL-CIO, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER IN
CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES AND MEMBERS ARE
CUSTOMARILY POSTED. THE
PRESIDENT OF LOCAL 1778 SHALL TAKE REASONABLE STEPS TO INSURE THAT
SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(E) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
NOTIFY THE REGIONAL
DIRECTOR OF REGION 2, ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK
10278, IN WRITING WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY ALL MEMBERS OF THE BARGAINING UNIT THAT:
WE WILL NOT SUBMIT UNION MEMBERSHIP FORMS (FORM 1187) AND/OR FORMS
FOR PAYMENT OF FEES FOR REPRESENTATIONAL SERVICES (AFFIDAVIT OF CHARGES)
TO NON-MEMBERS WHO SEEK REPRESENTATION OF THEIR INTERESTS.
WE WILL NOT CONDITION REPRESENTATION OF NON-MEMBERS ON THEIR JOINING
THE UNION OR ON THEIR AGREEING TO PAY FEES FOR REPRESENTATION.
WE WILL NOT FAIL OR REFUSE TO REPRESENT TO INTERESTS OF ALL EMPLOYEES
IN THE UNIT WE REPRESENT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION MEMBERSHIP.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE OR
OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THE STATUTE.
WE WILL DISCONTINUE ALL USE OF THE DOCUMENT ENTITLED "AFFIDAVIT OF
CHARGES".
WE WILL OFFER TO ACCEPT THE IMMEDIATE RESIGNATIONS OF MR. ROY B. COX
AND MS. REGINA MENDLER AS MEMBERS OF THE UNION; FORTHWITH TERMINATE THE
DUES AUTHORIZATION EXECUTED BY EACH; AND REIMBURSE MR. COX AND MS.
MENDLER FOR ALL UNION DUES AND FEES PAID BY MR. COX ON AND AFTER AUGUST
27, 1979, AND PAID BY MS. MENDLER ON AND AFTER NOVEMBER 16, 1979,
TOGETHER WITH INTEREST.
WE WILL ADVISE ALL EMPLOYEES IN THE BARGAINING UNIT THAT LOCAL 1778
WILL REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1778, AFL-CIO
DATED: BY: PRESIDENT, LOCAL 1778
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 2, WHOSE
ADDRESS IS ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278
(TELEPHONE NUMBER 212-264-4934).
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7114(A)(1) PROVIDES:
SECTION 7114. REPRESENTATION RIGHTS AND DUTIES
(A)(1) 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.
/2/ SECTION 7102 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SECTION 7102. EMPLOYEES' RIGHTS
EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT.
/3/ SEE ALSO NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER 202,
ET AL., 1 FLRA 910 (1979), CITED BY THE JUDGE, WHEREIN THE AUTHORITY
FOUND THAT THE UNION VIOLATED ITS DUTY OF FAIR REPRESENTATION UNDER
EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE OF ITS DISPARATE POLICY OF
SUPPLYING NATIONAL OFFICE ATTORNEYS TO REPRESENT UNION MEMBERS WHILE
SUPPLYING LOCAL STEWARDS TO REPRESENT NONMEMERS. THE AUTHORITY
FOLLOWED
THE NTEU DECISION IN FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, 2
FLRA 802 (1989).
/4/ SECTION 7131 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SECTION 7131. OFFICIAL TIME
. . . .
(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE INTERNAL
BUSINESS OF A LABOR
ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP, ELECTIONS OF
LABOR ORGANIZATION
OFFICIALS, AND COLLECTION OF DUES) SHALL BE PERFORMED DURING THE TIME
THE EMPLOYEE IS IN A
NONDUTY STATUS.
. . . .
(D) EXCEPT AS PROVIDED IN THE PRECEDING SUBSECTIONS OF THIS SECTION--
(1) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE, OR
(2) IN CONNECTION WITH ANY OTHER MATTER COVERED BY THIS CHAPTER, ANY
EMPLOYEE IN AN
APPROPRIATE UNIT REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, SHALL BE
GRANTED OFFICIAL TIME IN
ANY AMOUNT THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE INVOLVED AGREE
TO BE REASONABLE,
NECESSARY, AND IN THE PUBLIC INTEREST.
/5/ SEE INTERPRETATION AND GUIDANCE, 2 FLRA 264 (1979) AT 269.
/6/ INASMUCH AS INTEREST IS NOT AVAILABLE AGAINST THE FEDERAL
GOVERNMENT IN THE ABSENCE OF AN EXPRESS PROVISION IN A RELEVANT STATUTE
OR CONTRACT, AND NO RELEVANT STATUTORY PROVISION EXPRESSLY PERMITS THE
PAYMENT OF SUCH INTEREST BY FEDERAL AGENCIES (SEE PORTSMOUTH NAVAL
SHIPYARD AND FEDERAL EMPLOYEES METAL TRADES COUNCIL (FALLON,
ARBITRATOR), 7 FLRA NO. 9 (1981)), THE AUTHORITY CONCLUDES THAT IT WOULD
NOT EFFECTUATE THE PURPOSES OF THE STATUTE TO REQUIRE LABOR
ORGANIZATIONS TO PAY INTEREST IN SIMILAR CIRCUMSTANCES AS INCLUDED BY
THE JUDGE IN HIS RECOMMENDED ORDER. ACCORDINGLY, THE JUDGE'S
RECOMMENDATION THAT THE RESPONDENT BE REQUIRED TO PAY INTEREST TO
MENDLER AND COX IS REJECTED.
/7/ FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE STATUTE ARE ALSO
REFERRED TO HEREINAFTER WITHOUT INCLUSION OF THE INITIAL "71" OF THE
STATUTE REFERENCE, E.G., SECTION 7116(B)(1) SIMPLY AS "SECTION 16(B)(1);
HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED ALL SUCH REFERENCES
ARE TO CHAPTER 71 OF THE STATUTE.
/8/ RESPONDENT'S ANSWER (G.C. EXH. 1(G)), DATED MAY 19, 1980, WAS
RECEIVED BY THE REGIONAL OFFICE OF MAY 27, 1980; AND RESPONDENT'S
AMENDMENT TO ANSWER (G.C. EXH. 1(H)) DATED JUNE 20, 1980, WAS RECEIVED
BY THE REGIONAL OFFICE ON JUNE 23, 1980.
/9/ RESPONDENT'S MOTION TO CORRECT TRANSCRIPT, DATED AND RECEIVED
SEPTEMBER 10, 1980, IS GRANTED AND THE TRANSCRIPT IS HEREBY CORRECTED AS
FOLLOWS:
A. P. 19, LINE 5, THE WORDS EITHER OR ARE CORRECTED TO READ
"EITHER-OR".
B. P. 135, LINE 10, THE WORD UNOFFICIAL IS CORRECTED TO READ
OFFICIAL.
C. P. 140, LINE 17 AND P. 146, LINE 16 UOP IS CORRECTED TO EACH
INSTANCE TO READ ULP.
D. P. 321, LINE 7, THE WORD THESE IS CORRECTED TO READ FEES.
/10/ WHILE I DO NOT DEEM THE AGENCY'S "INTEREST", OR LACK THEREOF,
MATERIAL AND DO NOT BASE MY DECISION ON THE PRESENCE OR ABSENCE OF SUCH
INTEREST, IF NECESSARY, THE RECORD, NEVERTHELESS, SHOWS: A) REASONABLY
CAUSE TO BELIEVE, AS ALLEGED IN THE CHARGE, THAT SOLICITATION OF
MEMBERSHIP OCCURRED DURING THE TIME THE EMPLOYEE WAS IN A DUTY STATUS,
WHICH IF TRUE WOULD VIOLATE SECTION 31(B) AND CONSTITUTE AN UNFAIR LABOR
PRACTICE UNDER SECTION 16(B)(8); AND B) REASONABLE CAUSE TO BELIEVE, AS
CHARGED, THAT LOCAL 1778 BREACHED ITS DUTY OF FAIR REPRESENTATION BY
REFUSING TO REPRESENT NON-MEMBERS, IN MATTERS FOR WHICH THE AGENCY
PROVIDED OFFICIAL TIME, UNLESS THEY AGREED TO PAY A FEE OR JOINED THE
UNION.
/11/ THE "COMPLAINT REPORT" IS USED TO STATE THE NATURE OF COMPLAINT,
OR PROBLEM, AND "REQUEST FOR RESOLVE", WHICH I ASSUME MEANS RELIEF
REQUESTED. I AM AWARE THAT MS. STORICKS STATED THAT THIS FORM WAS USED
FOR ALL KINDS OF COMPLAINTS EXCEPT "FOR COMPENSATION" (TR. 27) BY WHICH
I ASSUME SHE MEANT WORKMAN'S COMPENSATION. HOWEVER, SHE STATED THERE
WAS NO OTHER FORM AND FROM MR. MYERS' TESTIMONY (TR. 207) IT SEEMS
PROBABLE THAT THE "COMPLAINT REPORT" FORM IS, IN FACT, ALSO USED FOR
COMPENSATION PROBLEMS.
/12/ THE $24.00 PER HOUR FIGURE WAS DERIVED BY TAKING THE COST OF
RUNNING THE LOCAL, BASED ON RESPONDENT'S MARCH 31, 1978, FINANCIAL
STATEMENT (RES. EXH. 5), LESS COST OF CONVENTION EXPENSE (562.00),
ENTERTAINMENT-DINNER DANCE (1,167.00) AND FOOD FOR MEETINGS (706.00),
DIVIDED BY THE NUMBER OF HOURS THE UNION OFFICE WAS OPEN (7 HOURS PER
DAY, 5 DAYS A WEEK, 52 WEEKS PER YEAR -LESS 56 HOURS TO ACCOUNT FOR
HOLIDAYS). OF COURSE, INCLUDED WERE SUCH EXPENSES AS PER CAPITA
ASSESSMENT TO THE NATIONAL OFFICE (SECTION 21, 311.00); CLEANING AND
JANITORIAL ($788.00); PRINTING ($1,339.00); AUDIT ($1,000.00);
DEPRECIATION ($910.00); TRAVEL ($758.00); MISCELLANEOUS ($1,980.00);
ETC., NONE OF WHICH BORE ANY DIRECT RELATIONSHIP TO THE COST OF
PROCESSING A COMPLAINT. INDEED, WHILE EXPENSES FOR SALARIES
($9,669.00), PAYROLL TAXES ($1,103.00); TELEPHONE ($953.00); LEAVE
WITHOUT PAY ($806.00); OFFICE SUPPLIES AND EQUIPMENT ($3,016.00) COULD,
TO SOME EXTENT, RELATE TO THE COST OF PROCESSING A COMPLAINT, NO EFFORT
WHATEVER WAS MADE TO DETERMINE THE COST OF PROCESSING A COMPLAINT.
/13/ SECTION 15(A) OF THE STATUTE PROVIDES, IN PART THAT:
" . . . ANY SUCH ASSIGNMENT MAY NOT BE REVOKED FOR A PERIOD OF 1
YEAR."
THE 1187 PROVIDED, IN PART, AS FOLLOWS:
" . . . REVOCATION WILL NOT BE EFFECTIVE HOWEVER UNTIL THE FIRST FULL
PAY PERIOD FOLLOWING
ONE YEAR FROM THE DATE THE FIRST DEDUCTION WAS MADE BY THE PAYROLL
OFFICE PROVIDED THE FORM OR
REQUEST IS RECEIVED IN A TIMELY FASHION . . . ." (G.C. EXH. 7).
THE ANNUAL DUES ALLOTMENT REVOCATION, SIGNED BY THE PARTIES ON
JANUARY 30, 1979, PROVIDES, IN PART, AS FOLLOWS:
"THE DATE FOR REVOCATION OF VOLUNTARY DUES WITHHOLDING WILL BE THE
FIRST PAY PERIOD THAT
FALLS AFTER 1 JUNE ANY YEAR. REVOCATIONS CAN BE ACCEPTED ANY TIME,
BUT WILL BE EFFECTIVE ONLY
AFTER 1 JUNE EACH YEAR AND MUST BE RECEIVED PRIOR TO 1 JUNE . . . ."
(G.C. EXH. 9).
MR. COX IN OCTOBER, 1979, SOUGHT TO REVOKE HIS DUES DEDUCTION
AUTHORIZATION. I AM AWARE THAT MR. BERGERSON TESTIFIED THAT, PURSUANT
TO THE ANNUAL DUES ALLOTMENT REVOCATION, DUES MAY BE REVOKED ONLY ONCE A
YEAR AND THAT THE EARLIEST MR. COX COULD REVOKE HIS ALLOTMENT WOULD BE
JUNE, 1981. AS THIS ISSUE IS NOT BEFORE ME, I EXPRESS NO OPINION AS TO
WHETHER SUCH INTERPRETATION WAS PROPER, IS IN ACCORD WITH THE STATUTE
AND/OR THE AUTHORITY'S INTERPRETATION AND GUIDANCE, FLRA NO. O-PS-1,
APRIL 19, 1979. WITH FULL RECOGNITION THAT GENERAL COUNSEL SUGGESTS A
BASIS FOR POSSIBLE VIOLATION CF. CAMERON IRON WORKS, INC. 235 NLRB 286,
97 LRRM 1516 (1978), ENF. DENIED ON OTHER GROUNDS, -F.2D-, 100 LRRM
3005 (5TH CIR. 1979), INASMUCH AS THE COMPLAINT DOES NOT ASSERT SUCH
CONDUCT AS A VIOLATION OF THE STATUTE, I EXPRESSLY DECLINE COMMENT ON
ITS VALIDITY AND LEAVE DETERMINATION OF THE QUESTION FOR RESOLUTION IN
AN APPROPRIATE CASE.
/14/ GENERAL COUNSEL VERY CORRECTLY NOTES THAT "NO CONTRACTUAL
GRIEVANCE HAS BEEN FILED." (G.C. BRIEF P. 9, N. 23) AND THAT IT WOULD
APPEAR ANY SUCH GRIEVANCE IS TIME BARRED. (JT. EXH. 1, ART. 34, G.C.
BRIEF, SUPRA.)
/15/ RESPONDENT ASSERTS THE ALLEGATIONS OF THE COMPLAINT AS TO MR.
COX, WHO SOUGHT ASSISTANCE ON A WORKMAN'S COMPENSATION CLAIM, AND AS TO
MS. CHARITY, WHO SOUGHT ASSISTANCE WITH RESPECT TO A DELAYED PROMOTION,
SHOULD BE DISMISSED FOR THE ASSERTED REASON THAT "NOTHING IN THE
COLLECTIVE BARGAINING AGREEMENT (JOINT EXHIBIT NO. 1) BETWEEN RESPONDENT
AND CHARGING PARTY COVERS THE HANDLING OF SUCH COMPENSATION CLAIMS . . .
SIMILARLY, THE CIRCUMSTANCES WHICH BROUGHT MS. CHARITY INTO THE UNION
OFFICE . . . DID NOT COME WITHIN THE SCOPE OF COLLECTIVE BARGAINING
AGREEMENT." (RESPONDENT'S BRIEF, P. 10). IT IS RECOGNIZED, AS THE
SUPREME COURT STATED IN VACA V. SIPES, 386 U.S. 171, 177 (1967), THAT
THE DUTY OF FAIR REPRESENTATION IS, " . . . A STATUTORY DUTY FAIRLY TO
REPRESENT ALL OF THOSE EMPLOYEES, BOTH IN ITS COLLECTIVE BARGAINING . .
. AND IN ITS ENFORCEMENT OF THE RESULTING COLLECTIVE BARGAINING
AGREEMENT."
AT THE OUTSET, IT MUST BE NOTED THAT SECTION 14(A)(1) OF THE STATUTE,
UNLIKE SECTION 9(A) OF THE NATIONAL LABOR RELATIONS ACT, CONTAINS A
SPECIFIC NON-DISCRIMINATION PROVISION. THUS, SECTION 14(A)(1) PROVIDES
AS FOLLOWS:
"(A)(1) 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." (5
U.S.C. 7114(A)(1).
(THE FIRST SENTENCE OF SECTION 9(A) OF THE NLRA IS SUBSTANTIALLY
SIMILAR TO THE FIRST
SENTENCE OF SECTION 14(A)(1) OF THE STATUTE AND PROVIDES AS FOLLOWS:
"SEC. 9(A) REPRESENTATIVES DESIGNATED OR SELECTED FOR THE PURPOSE OF
COLLECTIVE BARGAINING
BY THE MAJORITY OF THE EMPLOYEES IN A UNIT APPROPRIATE FOR SUCH
PURPOSES, SHALL BE THE
EXCLUSIVE REPRESENTATIVES OF ALL THE EMPLOYEES IN SUCH UNIT FOR THE
PURPOSES OF COLLECTIVE
BARGAINING IN RESPECT TO RATES OF PAY, WAGES, HOURS OF EMPLOYMENT, OR
OTHER CONDITIONS OF
EMPLOYMENT. . . . ")
SECTION 8(B)(1) OF THE NLRB, ENACTED IN 1947, PROVIDES:
"(B) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION OR
ITS AGENTS -
(1) TO RESTRAIN OR COERCE (A) EMPLOYEES IN THE EXERCISE OF THE RIGHTS
GUARANTEED IN SECTION
7 . . . ."
HOWEVER, AS THE SUPREME COURT NOTED IN VACA V. SIPES, SUPRA, THE
BOARD DID NOT UNTIL MIRANDA FUEL CO., 140 NLRB 181, 51 LRRM 1584 (1962),
INTERPRET A BREACH OF A UNION'S DUTY OF FAIR REPRESENTATION AS AN UNFAIR
LABOR PRACTICE. MIRANDA FUEL CO. WAS, MOREOVER, DENIED ENFORCEMENT, 326
F.2D 172, 54 LRRM 2715 (2D CIR. 1963); HOWEVER, THE FIFTH CIRCUIT
UPHELD THE BOARD'S MIRANDA FUEL DOCTRINE 1966), CERT. DENIED, 389 U.S.
837 (1967).
IT IS SIGNIFICANT THAT SECTION 14(A)(1) OF THE STATUTE SPECIFICALLY
PROVIDES THAT "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." VIOLATION OF THIS OBLIGATION CONSTITUTES AN UNFAIR LABOR
PRACTICE UNDER SECTION 16(B)(8). OF COURSE, SUCH CONDUCT MAY ALSO
VIOLATE SECTION 16(B)(1); BUT IT SEEMS OBVIOUS THAT A UNION COULD BE
GUILTY OF AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECTION 16(B)(8)
MERELY BECAUSE IT FAILED OR REFUSED TO REPRESENT THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT AND/OR BECAUSE IT FAILED OR REFUSED TO REPRESENT
ALL EMPLOYEES WITHOUT REGARD TO UNION MEMBERSHIP, EVEN IF ITS CONDUCT
SHOULD NOT BE DEEMED TO HAVE RISEN TO THE LEVEL OF INTERFERENCE,
RESTRAINT, OR COERCION SO AS TO VIOLATE SECTION 15(B)(1). IN
CONSIDERING DECISIONS UNDER THE NATIONAL LABOR RELATIONS ACT, THE
SIGNIFICANT DIFFERENCE IN STATUTORY LANGUAGE MUST BE KEPT IN MIND.
CONDUCT WHICH WOULD VIOLATE SECTION 8(B)(2)(A) OF THE NLRA WOULD ALSO
CONSTITUTE A VIOLATION OF SECTION 16(B)(1) OF THE STATUTE; BUT CONDUCT
WHICH WOULD NOT CONSTITUTE A VIOLATION OF SECTION 8(B)(1)(A), SUCH AS
THAT DISCUSSED HEREINAFTER IN AMERICAN POSTAL WORKERS UNION, SUPRA, MAY,
NEVERTHELESS, CONSTITUTE A VIOLATION OF THE STATUTE. IT IS NOT, SIMPLY,
THAT THE STATUTE HAS INCORPORATED A NON-DISCRIMINATION, OR DUTY OF FAIR
REPRESENTATIVE; BUT THE LANGUAGE OF THE STATUTE, FOR EXAMPLE,
"RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL EMPLOYEES IN THE
UNIT" IS BROAD AND MAY WARRANT, IF NOT, INDEED, MANDATE, REPRESENTATION
THAT WOULD NOT BE REQUIRED UNDER THE NLRA.
ALTHOUGH NOT CITED BY ANY PARTY, I HAVE GIVEN CAREFUL CONSIDERATION
TO THE MEMORANDUM OF THE GENERAL COUNSEL'S DIVISION OF ADVICE, NATIONAL
LABOR RELATIONS BOARD, IN THE MATTER OF AMERICAN POSTAL WORKERS UNION,
NINE-O-TWO AREA LOCAL, CASE NO. 31-CB-3755(P), DATED SEPTEMBER 30, 1980
(SEE, GOV. EMP. REL. REP. P. 887:9, NOVEMBER 10, 1980), WHICH INVOLVED A
UNION'S REFUSAL TO HELP A NONUNION MEMBER OF THE BARGAINING UNIT PROCESS
A WORKMAN'S COMPENSATION CLAIM, WHILE IT PROVIDED SUCH ASSISTANCE TO
MEMBERS. THE CHARGE ALLEGED A VIOLATION OF 8(B)(1)(A) OF THE NLRA AND
THE GENERAL COUNSEL'S DIVISION OF ADVICE CONCLUDED THAT THE UNION'S
CONDUCT DID NOT CONSTITUTE RESTRAINT OR COERCION BASED ON THE
NON-MEMBER'S EXERCISE OF HIS SECTION 7 RIGHTS AND, THUS, WAS NOT
VIOLATIVE OF THE ACT. IN REACHING THIS RESULT, THE MEMORANDUM NOTED, IN
PART:
" . . . IF . . . THE UNION REFUSES TO PROCESS THE GRIEVANCE OF A
NONUNION MEMBER OF THE
UNIT BECAUSE SAID EMPLOYEE REFUSES TO PAY THE COSTS INCIDENT THERETO,
THEN THE UNION'S CONDUCT
VIOLATES THE ACT . . . ON THE OTHER HAND, A UNION MAY LAWFULLY TREAT
UNIT EMPLOYEES
DISPARATELY IN THE PROVISION OF SERVICES OR BENEFITS WHICH DERIVE
SOLELY FROM UNION MEMBERSHIP
(I.E., THOSE SERVICES OR BENEFITS WHICH DO NOT INVOLVE A TERM OR
CONDITION OF EMPLOYMENT, DO
NOT DERIVE FROM THE COLLECTIVE BARGAINING AGREEMENT, AND DO NOT FALL
WITHIN THE PURVIEW OF THE
EXCLUSIVE DUTIES OR PREROGATIVES OF THE UNION AS THE CERTIFIED
BARGAINING REPRESENTATIVE).
" . . . THE SUBJECT OF WORKER'S COMPENSATION IS NOT ENCOMPASSED
WITHIN THE COLLECTIVE
BARGAINING AGREEMENT. HOWEVER, WORKER'S COMPENSATION BENEFITS DO
ARISE OUT OF THE EMPLOYMENT
RELATIONSHIP AND ARE OF COMMON INTEREST TO OTHER EMPLOYEES . . .
"IT WAS CONCLUDED, THEREFORE, THAT THE UNION'S CONDUCT . . . DID NOT
CONSTITUTE EITHER
RESTRAINT OR COERCION, BUT RATHER WAS MERELY AN INDUCEMENT TO
ENCOURAGE UNION
MEMBERSHIP. THIS THE UNION WAS PRIVILEGED TO DO . . . ."
ACCEPTING, BUT WITHOUT PASSING ON THE VALIDITY THE ANALYSIS AS
PERTAINS TO A UNION'S DUTY UNDER THE STATUTE, SEE DISCUSSION ABOVE, I
CONCLUDE THAT THE RULING OF THE DIVISION OF ADVICE IN THE ABOVE CASE IS
NOT DETERMITIVE OF THE PRESENT CASE FOR THE FOLLOWING REASONS: FIRST,
THE SUBJECT OF WORKMAN'S COMPENSATION IS ENCOMPASSED BY THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT (JT. EXH. 1), ART. 16, SECS. 11 AND 12).
SECOND, THE AGENCY GRANTS MR. MYERS OFFICIAL TIME FOR HANDLING
COMPENSATION MATTERS. ACCORDINGLY, IN THIS CASE, UNION'S REFUSAL TO
ASSIST A NON-MEMBER IN FILING A COMPENSATION CLAIM, IF TRUE, WOULD
CONSTITUTE RESTRAINT OR COERCION IN VIOLATION OF SECTION 16(B)(1) OF THE
STATUTE AND WOULD NOT CONSTITUTE A PRIVILEGED INDUCEMENT OF MEMBERSHIP.
MOREOVER, SECTION 14(A)(1) OF THE STATUTE IMPOSES ON THE EXCLUSIVE
REPRESENTATIVE RESPONSIBILITY "FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT . . . WITHOUT REGARD TO LABOR ORGANIZATION
MEMBERSHIP." WORKMAN'S COMPENSATION BENEFITS ARISE OUT OF THE EMPLOYMENT
RELATIONSHIP, ARE OF COMMON INTEREST TO ALL EMPLOYEES AND, UNDER THE
STATUTE, THE UNION IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES WITHOUT DISCRIMINATION. THE FAILURE OR REFUSAL OF THE UNION
TO REPRESENT THE INTERESTS OF NON-MEMBERS IN WORKMAN'S COMPENSATION
MATTERS IN THE SAME MANNER AS IT REPRESENTS THE INTERESTS OF MEMBERS
VIOLATES SECTION 14(A)(1) AND CONSTITUTES AN UNFAIR LABOR PRACTICE IN
VIOLATION OF SECTION 16(A)(8) OF THE STATUTE. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2126, AFL-CIO, SAN FRANCISCO, CALIFORNIA, 1
FLRA NO. 112, FEDERAL LABOR RELATIONS AUTHORITY, REPORT OF CASE
DECISIONS NO. 17, OCTOBER 10, 1979, CITED AND RELIED UPON BY RESPONDENT,
AROSE UNDER EXECUTIVE ORDER 11491 AND, BECAUSE THE LANGUAGE OF THE
STATUTE IS SUBSTANTIALLY DIFFERENT, IS OF QUESTIONABLE RELEVANCE SINCE
THE PRESENT CASE INVOLVES, SOLELY, THE PROVISIONS OF THE STATUTE.
SECTION 14(A)(1) OF THE STATUTE, I.E., "REPRESENTING THE INTERESTS OF
ALL EMPLOYEES IN THE UNIT" CERTAINLY, IN MY OPINION, INCLUDES THE
INTEREST OF AN EMPLOYEE FOR RELIEF FOR DELAY OF A PROMOTION AND/OR
DENIAL OF A PAY DIFFERENTIAL FOR ANY PERIOD OF ENTITLEMENT. VARIOUS
ARTICLES OF THE AGREEMENT (JT. EXH. 1) RELATE TO SIMILAR AREAS, E.G.,
ART. 21 "POSITION CLASSIFICATION", ART. 22 "PERFORMANCE EVALUATION";
ART. 23 "MERIT PROMOTION"; ART. 26 "UPWARD MOBILITY PROGRAM PLAN OF
ACTION". IT IS NO ANSWER THAT A PARTICULAR PROMOTION, I.E., TO A GS
POSITION FROM A TRAINEE POSITION, IS NOT SET FORTH IN THE AGREEMENT.
INDEED, ART. 34, "NEGOTIATED GRIEVANCE PROCEDURE", PROVIDES, IN PART,
THAT THE PROCEDURE SHALL GOVERN, " . . . ISSUES AFFECTING PERSONNEL
POLICIES AND PROCEDURES, INTERPRETATION AND APPLICATION OF RULES,
REGULATIONS AND LAWS, AND OTHER MATTERS AFFECTING THE GENERAL WORKING
CONDITIONS . . . " WHETHER DELAY OF A PROMOTION BECAUSE OF
ADMINISTRATIVE ERROR COULD PROPERLY, OR MORE ACCURATELY, SUCCESSFULLY,
BE GRIEVED, OR WHETHER IT WAS MORE APPROPRIATELY, AS THE UNION ELECTED
TO TREAT IT, A MATTER FOR APPEAL TO THE COMPTROLLER GENERAL, IT WAS AN
INTEREST THE UNION WAS OBLIGATED TO REPRESENT AS TO ALL EMPLOYEES,
WITHOUT DISCRIMINATION AND WITHOUT REGARD TO UNION MEMBERSHIP.
ACCORDINGLY, RESPONDENT'S MOTION FOR DISMISSAL OF THE PORTIONS OF THE
COMPLAINT RELATING TO MR. COX AND MS. CHARITY, I.E., "THE EVENTS OF ON
OR ABOUT AUGUST 27, 1979, AND MARCH 5, 1980" (RESPONDENT'S BRIEF, P. 8),
IS DENIED.
/16/ FOR REASONS SET FORTH ABOVE, ONCE A UNION COMPROMISES ITS
OBLIGATION UNDER 14(A)(1), I AM PERSUADED THAT ONLY A DIRECT, CLEAR AND
UNEQUIVOCAL ASSURANCE THAT THE UNION WILL REPRESENT HIS INTERESTS
WITHOUT REGARD TO UNION MEMBERSHIP WOULD SUFFICE. INASMUCH AS I HAVE
FOUND, CONTRARY TO MR. MYERS' TESTIMONY, THAT NO UNEQUIVOCAL STATEMENT
WAS MADE TO ANY EMPLOYEE THAT SIGNING A MEMBERSHIP APPLICATION WAS
WHOLLY VOLUNTARY, I DO NOT DECIDE WHETHER SUCH STATEMENT WOULD OVERCOME
A PRESUMPTIVE VIOLATION OF 14(A)(1), ALTHOUGH, IN THE CIRCUMSTANCE IN
WHICH MADE, I WOULD NOT FIND THAT MR. MYERS' STATEMENT, EVEN IF FULLY
CREDITED, WOULD HAVE OVERCOME THE PRESUMPTIVE VIOLATION OF HIS TENDER OF
THE 1187 TO MR. COX.
/17/ AS NOTED ABOVE, MR. CASTELLANO APPEARS TO HAVE AFFIRMED THIS
POSITION (TR. 141).
/18/ MR. KIMENHOUR WAS NOT CALLED AS A WITNESS.
/19/ AFTER CAREFUL CONSIDERATION, I CONCLUDE THAT A RATE OF INTEREST
KEYED TO THE PRIVATE SECTOR MONEY MARKET WOULD HAVE THE EFFECT OF
ENCOURAGING TIMELY COMPLIANCE WITH AUTHORITY ORDERS, DISCOURAGING THE
COMMISSION OF UNFAIR LABOR PRACTICES BY UNIONS, AND MORE FULLY
COMPENSATING DISCRIMINATEES FOR THEIR ECONOMIC LOSSES; HOWEVER, RATHER
THAN ADOPT A STRAIGHT INTEREST RATE, IN FULL AGREEMENT WITH THE ANALYSIS
OF THE NLRB, IN FLORIDA STEEL CORPORATION, 231 NLRB 651 (1977), I
RECOMMEND ADOPTION OF THE SLIDING INTEREST SCALE CHARGED OR PAID BY THE
INTERNAL REVENUE SERVICE ON THE UNDERPAYMENT OF FEDERAL TAXES AS WAS
ADOPTED BY THE BOARD. PURSUANT TO 26 U.S.C 6621, THE SECRETARY OF THE
TREASURY IS DIRECTED TO ADJUST THE INTEREST RATE NOT MORE THAN ONCE
EVERY 2 YEARS TO REFLECT CHANGES IN THE MONEY MARKET. THE PRESENT RATE,
EFFECTIVE FEBRUARY 1, 1980, IS 12 PER CENT.