[ v16 p717 ]
16:0717(102)CA
The decision of the Authority follows:
16 FLRA No. 102
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 121
Respondent
and
DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS
Charging Party
Case No. 6-CO-15
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 as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision were
filed by the Respondent with the Charging Party filing an opposition.
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 Recommended Order as
modified below.
The Judge found that the National Treasury Employees Union's (NTEU)
policy of not furnishing attorneys to represent non-members in units of
exclusive recognition while furnishing attorneys to represent members,
was in derogation of its obligation under section 7114(a)(1) of the
Statute to represent the interest of all employees in the bargaining
unit without discrimination and therefore violative of section
7116(b)(1) and (8) of the Statute. The Judge further found that NETU's
conduct also constituted an independent violation of section 7116(b)(1)
of the Statute by interfering with the employees' protected right under
section 7102 of the Statute to refrain from joining a labor
organization.
The dispositive facts and positions of the parties on the foregoing
issues are substantially identical to those found in National Treasury
Employees Union, 10 FLRA 519 (1982), enforced sub nom. National Treasury
Employees Union v. Federal Labor Relations Authority, 721 F.2d 1402
(D.C. Cir. 1983), in which the Authority found that NTEU failed to meet
its obligation under section 7114(a)(1) of the Statute to represent the
interest of all unit employees without discrimination by (1) posting
copies of a memorandum issued by NTEU's President at a number of
locations within the U.S. Customs Service announcing the continuation of
NTEU's policy of not furnishing attorneys to represent non-members while
furnishing attorneys to represent members, and (2) implementing the
foregoing policy at the Nuclear Regulatory Commission by denying
attorney representation to non-member employees while providing such
representation to members involved in removal actions at the Merit
Systems Protection Board. Accordingly, in agreement with the Judge, and
for the reasons fully stated in National Treasury Employees Union,
supra, the Authority finds that NTEU has failed and refused to comply
with section 7114(a)(1) of the Statute, and therefore has violated
section 7116(b)(1) and (8) of the Statute.
However, the Authority disagrees with the Judge's finding that the
Respondent National Treasury Employees Union, Chapter 121 also violated
section 7116(b)(1) and (8) of the Statute by such action. Contrary to
the Judge, the Authority finds that NTEU, Chapter 121 is a subordinate
subdivision of the National Union, subject to its ultimate full control
and supervision and had no choice but to implement the policy directives
of the National Union. In so finding, the Authority notes particularly
that the NTEU charters its chapters and under its Constitution retains
ultimate full authority over, supervision of, and the right to
discipline chapters and locally elected officers. /1/ Previous
decisions of the Authority have established that a separate violation of
the duty to bargain can not be held against a subordinate activity based
solely upon the subordinate activity's ministerial actions in
implementing the directives from higher level management. Department of
the Interior, Water and Power Resources Service, Grand Coulee Project,
Grand Coulee, Washington, 9 FLRA 385 (1982); and Department of Health
and Human Services, Social Security Administration, Region VI, and
Department of Health and Human Services, Social Security Administration,
Galveston, Texas District, 10 FLRA 26 (1982). Consequently, the
Authority concludes that the purposes and policies of the Statute would
not be effectuated by finding a separate violation based on Chapter
121's ministerial act of implementing the policy directive from higher
level union management.
In agreement with the Judge, the Authority finds that a broad
remedial posting order is appropriate. /2/ In so finding, the Authority
notes particularly the previous similar violation found against NTEU
under the Statute; that this has been a continuing national policy of
the NTEU which has been publicized and disseminated throughout its
chapters nationwide; and that the policy has been applicable to all
employees in all units in which NTEU holds exclusive recognition.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the National Treasury Employees Union shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in units of exclusive recognition solely on the basis of
whether such employees are members of the National Treasury Employees
Union.
(b) Interfering with, restraining, or coercing unit employees in the
exercise of their right to refrain from joining, freely and without fear
or penalty or reprisal, the National Treasury Employees Union or any
other labor organization.
(c) In any like or related manner interfering with, restraining, or
coercing unit employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the statute:
(a) National Treasury Employees Union, by its President, shall
forthwith notify all national office officials, including its legal
staff, and each Chapter President, in writing, that the National
Treasury Employees Union's policy has changed; that the National
Treasury Employees Union will supply attorneys to non-members to help in
representational efforts on the same basis as it supplies attorneys to
members to help in representational efforts; and that the statement in
President Connery's memorandum dated September 7, 1979, to the contrary
is hereby withdrawn and rescinded.
(b) National Treasury Employees Union will represent the interests of
all employees in units where it holds exclusive recognition without
discrimination and without regard to labor organization membership.
(c) Post at its national headquarters, at the local business office
of each of its chapters, and at each agency or activity, including but
not limited to Department of the Treasury, Bureau of Alcohol, Tobacco
and Firearms, for which the National Treasury Employees Union, and/or
any chapter of the National Treasury Employees Union holds exclusive
recognition, and at all places where notices to members and other
employees are customarily posted, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the President of the National
Treasury Employees Union and they shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all places
where notices to members and the other employees are customarily posted.
The National Treasury Employees Union shall take reasonable steps to
insure that such Notices are not altered, defaced, or covered by any
other material.
(d) Submit appropriate signed copies of such Notices to the Director,
Bureau of Alcohol, Tobacco and Firearms, Washington, D.C.; and, upon
request, to an appropriate officer of each other agency or activity for
which the National Treasury Employees Union and/or any chapter of the
National Treasury Employees Union holds exclusive recognition, for
posting in conspicuous places where the respective unit employees are
located, where they shall be maintained for a period of 60 consecutive
days from the date of posting.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VI, 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 HEREBY FURTHER ORDERED that the complaint in Case No. 6-CO-15,
insofar as it alleges a violation of section 7116(b)(1) and (8) of the
Statute, by Respondent NTEU, Chapter 121 be, and it hereby is,
dismissed.
Issued, Washington, D.C., December 4, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY ALL MEMBERS AND EMPLOYEES OF ALL
UNITS FOR
WHICH THE NATIONAL TREASURY EMPLOYEES UNION, AND/OR ANY
CHAPTER OF THE
NATIONAL TREASURY EMPLOYEES UNION HOLDS EXCLUSIVE
RECOGNITION, THAT:
WE WILL NOT afford differing standards of employee representation to
employees in units of exclusive recognition solely on the basis of
whether such employees are members of the National Treasury Employees
Union.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
or penalty or reprisal, the National Treasury Employees Union 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 HEREBY NOTIFY all members and all employees in all units in which
we hold exclusive recognition that the National Treasury Employees
Union's policy has changed; that the National Treasury Union Employees
will supply attorneys to non-members to help in representational efforts
on the same basis as it supplies attorneys to members; and that the
statement in President Connery's memorandum, dated September 7, 1979, to
the contrary is hereby withdrawn and rescinded.
WE WILL represent all employees in units where we hold exclusive
recognition without discrimination and without regard to labor
organization membership.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VI,
whose address is: Bryan & Ervay Streets, Room 450, P.O. Box 2640,
Dallas, Texas 75221 and whose telephone number is (214) 767-4996.
FOLLOWS --------------------
CISION
AND NATIONAL TREASURY EMPLOYEES
UNION CHAPTER 121
Respondent
and
DEPARTMENT OF TREASURY,
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS
Charging Party
Case No. 6-CO-15
Rob V. Robertson, Esquire
For the Respondent
Rosemary Kvaka, Esquire
John A. Chevrier, by Brief
For the Charging Party
James E. Dumerer, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of title 5 of the United States Code, 5
U.S.C. 7101, et seq., /3/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. 2423.1, et seq., concerns the alleged policy of
Respondents to provide attorneys to represent bargaining unit employees
on the basis of their union membership, contrary to Sec. 14(a)(1) of the
Statute and in violation of Secs. 16(b)(1) and (8) of the Statute. It
was initiated by a charge filed on February 11, 1980 (G.C. Exh. 1(a));
a Complaint and Notice of Hearing issued on November 20, 1980 (G.C. Exh.
1(d)); an Amended Complaint and Notice of Hearing issued on December
19, 1980 (G.C. Exh. 1(g)) and the Notice of Hearing set the hearing for
March 4, 1981, at a place to be determined; by Order dated February 23,
1981, the hearing was rescheduled for April 23, 1981 (G.C. Exh. 1(k));
on April 2, 1981, Henry H. Robinson, then Associate General Counsel,
National Treasury Employees Union, filed a motion, inter alia, to Limit
Proof at Hearing, stating, in part, that since the issuance of the
Complaint and Amended Complaint herein, an Administrative Law Judge had
issued a decision in consolidated Case Nos. 3-CO-26 and 3-CO-37 which
had directly addressed and made holdings on all matters regarding the
September 7, 1979, Memorandum signed by President Vincent L. Connery,
referred to in Paragraph 9 of the Amended Complaint (also referred to in
Paragraph 8 of the original Complaint) and further represented, in part,
that "Respondent recognizes and accepts the fact that the ultimate
decision in Case Nos. 3-CO-26 and 37 will be res judicata as to the
September 7 Memorandum" and that, "Inasmuch as the decision in Case Nos.
3-CO-26 and 37 will be and is res judicata with respect to all matters
pertaining to the September 7 Memorandum, it would be inefficient and
useless to relitigate the identical issue a second time in the present
case . . . ." (G.C. Exh. 1(m)); on April 17, 1981, the General Counsel
requested that the hearing be indefinitely postponed for the reason that
"Counsel for Respondent has indicated that Respondent will settle . . .
in accordance with the Authority's disposition . . . in consolidated
Case Nos. 3-CO-26 and 3-CO-37, which involve the same Respondent . . .
and which present the same legal issues . . . ." (G.C. Exh. 1(r)); the
case was indefinitely postponed on April 17, 1981; Charging Party filed
an opposition (G.C. Exh. 1(q)); the decision was reconsidered in light
of the objections interposed and, on April 22, the objections were
denied and the hearing was postponed indefinitely (G.C. Exh. 1(s)); the
Authority's decision in Case Nos. 3-CO-26 and 3-CO-37 (10 FLRA No. 91,
10 FLRA 519) issued on November 23, 1982, and subsequently Respondent
declined to settle in accordance with the Authority's decision /4/ and,
by Order dated January 28, 1983 (G.C. Exh. 1(v)) the case was
rescheduled for hearing on February 16, 1983, pursuant to which a
hearing was duly held on February 16, 1983, in Dallas, Texas, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. General Counsel presented oral
argument but Counsel for Respondents and for the Charging Party waived
oral argument. At the close of the hearing, Respondents for good cause
shown, requested that April 4, 1983, be fixed as the date for mailing
post hearing briefs and there being no opposition, April 4, 1983, was
fixed as the date for mailing post-hearing briefs. Respondents and the
Charging Party each timely mailed a brief, received on or before April
6, 1983, which have been carefully considered together with the closing
argument of the General Counsel. Upon the basis of the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings and conclusions:
Findings
1. The National Treasury Employees Union (NTEU), is the certified
exclusive representative, nation-wide, of all non-professional employees
employed by the Regional offices of the Bureau of Alcohol, Tobacco and
Firearms, Department of the Treasury, with certain exclusions as more
fully set forth in Paragraph 5 of the Complaint.
2. Chapter 121 represents employees both in Dallas, Texas, and in
Denver, Colorado (Tr. 29). Paragraph 6 of the Complaint alleges that,
"At all times material herein, Chapter 121 has been the agent of the
National (NTEU) for purposes of representation of employees, collective
bargaining, and administration of the collective bargaining agreement
covering employees mentioned in Paragraph 5 above" (G.C. Exh. 1(q)).
Respondents' Answer states, "Chapter 121 has not been the national
union's agent in all representational, collective bargaining and
contract administration matters, but has been the agent in some" (G.C.
Exh. 1(i)). " . . . was the exclusive representative . . . that
Jeanette Green (in 1979 was President of Chapter 121 (Tr. 28-29)) was a
union officer on behalf of the exclusive representative" (Tr. 48).
Counsel for Respondents objected to Chapter 121 as "the proper
Respondent" (Tr. 44) and asserted that, " . . . to the extent a remedy
may be required, the remedy would fall upon the legal responsibility of
the National Treasury Employees Union, Washington, D.C." (Tr. 46).
3. In August 1979, Mr. Carter Wright, an inspector with the Bureau
of Alcohol, Tobacco and Firearms (ATF) in Denver, Colorado, received a
letter stating that ATF was contemplating adverse action (Tr. 10).
4. Mr. Wright spoke to personnel officer Mary Dodd who referred him
to Jeanette Green, President of Local 121. Mr. Wright testified that he
called Ms. Green " . . . who was the union representative, and discussed
whether or not I would be-- I was eligible to obtain an attorney since I
was a non-member of the union" (Tr. 10). Mr. Wright stated that,
"A. As I recall, her advice was that I would be ineligible.
"Q. She said that you would not be eligible for attorney
representation by the union?
"A. Yes, since I was a non-member" (Tr. 11).
5. Ms. Jeanette Green, now retired, in August 1979, was employed by
ATF in Dallas, Texas, and was President of Local 121 which covers both
Dallas and Denver, Colorado (Tr. 28-29). Ms. Green readily conceded
that she told Mr. Wright that,
"A. I told him that it was the policy generally not to furnish
legal counsel to non-members . . . ." (Tr. 29).
Ms. Green further stated that she told Mr. Wright,
" . . . that if he was in a position where he had to meet with
management and wanted representation, that as president and chief
steward, I would meet with him and be present-- you know-- at that
meeting" (Tr. 29).
Ms. Green further stated that she had no idea what type of case Mr.
Wright had; that she didn't know if his case was a grievance (Tr. 40);
that Mr. Wright didn't mention that he had a proposal that he be fired "
. . . he didn't tell me what he was calling for." (Tr. 41).
6. Ms. Green did tell Mr. Wright that if he wanted more information
he could call NTEU counsel, Mr. Henry Robinson, in Austin, and gave him
the telephone number (Tr. 15, 30). Mr. Weight did not call Mr. Robinson
but, at his former wife's suggestion (Tr. 16, 17), called NTEU Vice
President Robert Tobias in Washington, D.C. (Tr. 15). Mr. Wright
testified concerning his conversations with Mr. Tobias, in part, as
follows:
"A. I spoke with Mr. Tobias and discussed the elements of the
case. He appeared to be very favorable toward it and felt that I
could receive representation. However, he couldn't make a
statement during that call whether or not I would receive
representation, and said he would have to refer it to the
president of the union and that I should call back two days later,
which I did.
"I spoke with Mr. Tobias again, and he had discussed the case
as I had gone over it with him, to the union president who felt
that it wouldn't be advisable for them to provide representation.
"Q. And they-- It wouldn't be advisable to provide
representation why?
"A. Primarily because of-- they felt that my case lacked
judicial appeal or that my chances of success were not good. He
explained that they handled cases for union members automatically,
and in some instances they handled cases for non-union members,
but he did not feel they would in my case" (Tr. 17-18).
* * * *
"Q. You testified that Mr. Tobias said that if you were a
member that he would automatically supply you an attorney. Are
you saying that you're quoting Mr. Tobias, or are you saying that
it was your feeling that you would have-- that he would have
supplied you an attorney had you been a member of the union?
"A. No. He stated that had I been a member of the union, he
would have been obligated to provide an attorney.
"Q. What did the obligation, in your understanding--
"A. It was policy at that time, and it was policy to accept
favorable cases of non-union members at that time" (Tr. 19).
* * * *
"Q. Did you testify that on the first conversation, Mr. Tobias
talked rather favorably about your case?
"A. Yes, he did.
"Q. Can you be more detailed?
"A. He felt that I was not at fault, considering the
circumstances and the situation in the case, and he felt that
after he discussed it with the president of the union, Mr.
Connery, that he would agree.
"However, after this was done, Connery did not-- was not
favorable to providing representation.
"Q. During your two conversations with Mr. Tobias, did he
state that this policy applied only to individuals within the
Bureau of Alcohol, Tobacco and Firearms?
"A. No, I think it was a general policy for all Treasury
Department.
"Q. For places where the NTEU has recognition?
"A. Is represented, yes" (Tr. 21-22).
7. Although Mr. Wright's conversation with Ms. Green and with Mr.
Tobias occurred in August 1979, and although Mr. Wright testified that
he felt that his entitlement to an attorney, as a non-union member,
centered around the merits of his case (Tr. 20); nevertheless,
President Connery by his memorandum of September 7, 1979, to NTEU
Chapter Presidents (G.C. Exh. 3), which Ms. Green acknowledged receiving
(Tr. 31), after referring to the Authority's Decision in 1 FLRA No. 104,
stated, in part, as follows:
"However, the fact that we are not appealing the decision
(because Executive Order 11491 was no longer in existence) does
not mean NTEU policy has changed. NTEU will not supply attorneys
to non-members to help in representational efforts. If a new
charge is filed against NTEU based on the new language in the
Civil Service Reform Act, we will continue to resist it" (G.C.
Exh. 3).
CONCLUSIONS
The record is clear that the President of NTEU Chapter 121, Jeanette
Green, in August 1979, told a unit employee, Mr. Carter Wright, " . . .
that it was the policy (of NTEU) generally not to furnish legal counsel
to non-members," although Ms. Green, as President and Chief Steward of
Chapter 121, offered to be present if Mr. Wright had to meet with
management and wanted representation. Mr. Wright fully understood from
Ms. Green's advice that he was not eligible for attorney representation
by the Union because he was a non-member; nevertheless, Mr. Wright
pursued the matter further by calling the Vice President of NTEU, Mr.
Robert Tobias, in Washington, D.C. Mr. Wright's testimony was neither
challenged nor contradicted and, accordingly, the record is further
clear that Mr. Tobias told Mr. Wright that they (NTEU) " . . . handled
cases for union member automatically, and in some instances they (NTEU)
handled cases for non-union members . . . "; that Mr. Tobias told Mr.
Wright, " . . . that had I been a member of the union, he would have
been obligated to provide an attorney"; that "It was policy at that
time, and it was policy to accept favorable cases of non-union members
at that time."
Both by the statement of the President of Chapter 121 and by the
statements of NTEU's Vice President, Respondents made it clear that
attorney representation by NTEU was based, in whole or in part, on Union
membership. Thus, Ms. Green admitted that she told Mr. Wright that "it
was the policy generally not to furnish legal counsel to non-members."
Ms. Green's testimony corroborated the entirely consistent and wholly
credible testimony of Mr. Wright that Ms. Green told him that he "would
be ineligible" for attorney representation by the Union "since I was a
non-member." Thereafter, Mr. Tobias told Mr. Wright that NTEU "handled
cases for union members automatically, and in some instances they
handled cases for non-union members . . . "; that had Mr. Wright been a
member of the Union, "he would have been obligated to provide an
attorney" but that it was policy to accept only " . . . favorable cases
of non-union members . . . ." At the least, Mr. Tobias left no possible
doubt that the standard for attorney representation of non-members was
starkly different than the standard for members.
While the statement of Mr. Tobias to Mr. Wright is not in dispute,
the sincerity of his representation to Mr. Wright, that President
Connery's refusal to authorize attorney representation centered around
the merits of his case, is rendered highly suspect by President
Connery's memorandum of September 7, 1979, /5/ to all NTEU Chapter
Presidents in which he stated, in part, that:
" . . . NTEU will not supply attorneys to non-members to help
in representational efforts . . . ." (G.C. Exh. 3).
In any event, the issuance and dissemination of the memorandum of
September 7, 1979, to NTEU Chapter Presidents, including Ms. Green,
President of Chapter 121, did, as alleged in Paragraph 9 of the Amended
Complaint (Paragraph 8 of the original Complaint) state NTEU's policy
that NTEU will not supply attorneys to non-members to help in
representational efforts. Respondents' assertion that this allegation
is "not within the scope of the change" (G.C. Exh. 1(f) and 1(i)) is
without merit. The charge (G.C. Exh. 1(a)) specifically stated, inter
alia. "Carrying out the National Office's policy (attached) . . . ",
said attachment having been President Connery's memorandum of September
7, 1979, which gave adequate, indeed specific, notice of the policy
alleged. However, even if a copy of the actual policy had not been
attached, reference to the National Office's policy in the charge would
have been sufficient. Department of the Interior, U.S. Geological
Survey Conservation Division, Gulf of Mexico Region, Metarie, Louisiana,
9 FLRA No. 65, 9 FLRA 543, 544, 551-554 (1982); National Labor
Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937);
National Labor Relations Board v. Fant Milling Co., 360 U.S. 301 (1959);
National Labor Relations Board v. Braswell Motor Freight Lines, Inc.,
486 F.2d 743 (7th Cir. 1973).
As I stated, in National Treasury Employees Union, 10 FLRA No. 91, 10
FLRA 519, 533 (1982),
"I have no doubt whatever that Respondent, or any union, may
properly establish criteria for providing the assistance of
attorneys to members of bargaining units such as: nature of the
case; availability of an attorney; importance of issues
involved, provided such criteria are applied uniformly to all
members of the bargaining unit. But any criteria whereby
representation of the interests of all employees in the unit is
discriminatory or is based in any manner on labor organization
membership is proscribed by Sec. 14(a)(1) of the Statute."
Ms. Green's statement to Mr. Wright that the policy was "not to
furnish legal counsel to non-members" violated the obligation imposed by
Sec. 14(a)(1) of the Statute to represent the interests of all unit
employees without discrimination and without regard to labor
organization membership and constituted an unfair labor practice in
violation of Secs. 16(b)(1) and (8) of the Statute; but, although this
unfair labor practice was committed by Chapter 121, may an order run
against Chapter 121 since Chapter President Green's action was a
ministerial action implementing NTEU policy? I am well aware that the
Authority has declined to find a violation by an activity which
ministerially followed the dictates of an agency. Department of the
Interior, Water and Power Resources Service, Grand Coulee Project, Grand
Coulee, Washington, 9 FLRA No. 46, 9 FLRA 385, 388 (1982) (hereinafter
referred to as "Grand Coulee"); Department of Health and Human
Services, Social Security Administration, Region VI, and Department of
Health and Human Services, Social Security Administration, Galveston,
Texas District, 10 FLRA No. 9, 10 FLRA 26, 28-29 (1982) (hereinafter
referred to as "Galveston").
At the outset, whether or not a separate violation is found, Chapter
121 was, and is, a proper Respondent. See the excellent analysis of
Judge Dowd in Internal Revenue Service, San Francisco District and
Internal Revenue Service, Washington, D.C., Case No. 9-CA-1169,
Administrative Law Judge Decisions Report No. 25 (April 29, 1983).
Many of the factors which have given rise to the principal stated in
Grand Coulee, supra, and Galveston, supra, are applicable here. Thus,
NTEU is the exclusive representative, nation-wide, for ATF; Ms. Green
was "a Union officer on behalf of the exclusive representative"; and
Ms. Green implemented the policy of NTEU concerning attorney
representation. At the same time, there are significant differences.
Chapters of NTEU are not subdivisions of NTEU in the sense that an
activity is the subdivision of an agency. To the contrary, each Chapter
has its own elected officers and as Respondent's Answers states,
"Chapter 121 has not been the national union's agent in all
representational, collective bargaining and contract administration
matters, but has been the agent in some."
It is also true that Sec. 14(a)(1) specifically refers to "exclusive
representative" and NTEU, not Chapter 121, is the exclusive
representative. Nevertheless, having weighed all factors carefully, I
conclude that the rule of Grand Coulee, supra, and Galveston, supra,
should not be extended to labor organizations because local chapters, or
local unions, are not subdivisions of the national union in the sense
that activities are subdivision of agencies. In addition, I conclude
that Local 121's conduct constituted an independent violation of Sec.
16(b)(1) because it interfered with the employee's protected right under
Sec. 2 of the Statute to refrain from joining a labor organization.
National Treasury Employees Union, supra. Moreover, the policy of NTEU,
"not to furnish legal counsel to non-members," implemented by Ms. Green,
violated its obligation under Sec. 14(a)(1) of the Statute and NTEU
thereby violated Secs. 16(b)(1) and (8) of the Statute and NTEU's
conduct, through its agent, Chapter 121, also constituted an independent
violation of Sec. 16(b)(1) because it interfered with the employee's
protected right under Sec. 2 of the Statute to refrain from joining a
labor organization.
NTEU's conduct, by Mr. Tobias, in informing Mr. Wright that its
policy was to provide attorneys to represent union members automatically
but that it only handled cases for non-union members "in some cases"
and/or that it only accepted "favorable cases of non-union members," was
also in derogation of its obligation under Sec. 14(a)(1) of the Statute
and NTEU thereby violated Sec. 16(b)(1) and (8) of the Statute.
Further, its conduct also constituted an independent violation of Sec.
16(b)(1) because it interfered with the employee's protected right under
Sec. 2 of the Statute to refrain from joining a labor organization.
In his conversations with Mr. Tobias, Mr. Wright discussed the
elements of his case and, although the record does not show that the
attorney representation sought was representation in a Merit Systems
Board proceeding, it might be reasonable to infer that Messrs. Wright,
Tobias and Connery contemplated a Merit Systems Board proceeding as,
indeed, followed. Even if it were assumed that Mr. Wright's request to
Mr. Tobias had been for attorney representation before the Merit Systems
Protection Board, and neither Mr. Wright's request nor Mr. Tobias'
response after referral of the request to President Connery was limited
to MSPB representation, NTEU nevertheless, acted in derogation of its
obligation under Sec. 14(a)(1) of the Statute, and thereby violated
Secs. 16(b)(1) and (8) of the Statute, by affording such representation
to members on a basis different than for non-members. In so concluding,
I am aware that the Authority, in American Federation of Government
Employees, Local 2126, AFL-CIO, San Francisco, California, 1 FLRA No.
112, 1 FLRA 992 (1979), adopted an Administrative Law Judge's decision
that " . . . the union, as such, had no duty to represent complainant in
his EEO complaint." (1 FLRA at 999). By analogy, I assume, but do not
decide, that NTEU has no duty to represent any employee before the MSPB;
but if it affords such representation to some members of the bargaining
unit it represents, it must do so without discrimination and without
regard to labor organization membership. I am also aware of the
decision of the Federal Labor Relations Council, in United States
Department of the Navy, Naval Ordnance Station, Louisville, Kentucky,
FLRC No. 74 A-54, 3 FLRC 686 (1975), which held, in part, that Section
10(e) of Executive Order 11491, as amended, /6/ " . . . does not impose
upon a labor organization holding exclusive recognition an obligation to
represent a bargaining unit employee in an adverse action proceeding
until such time as the employee indicates a desire to choose his own
representative" (3 FLRA at 686), but that decision is not applicable
here. I have also given long and careful consideration to Judge
Sternburg's well considered decision in American Federation of
Government Employees, AFL-CIO and Social Security Administration, Case
No. 3-CO-20003 (OALJ-82-131, September 16, 1982), in which he held that
charging different, or higher, contingent fees for non-union employees
than for union employees in a civil class action by a private attorney
paid a retainer by the union did not violate Secs. 16(b)(1) or (8) of
the Statute. Although that case is distinguishable, (see: American
Federation of Government Employees, AFL-CIO, Local 916 and United States
Department of Defense, Department of The Air Force, Oklahoma City Air
Logistics Center, Tinker Air Force Base, Oklahoma, Case No. 6-CO-20008,
OALJ-83-109, hereinafter referred to as the "Local 916" case) I am aware
that it appears to be based, at least in part, on the premise that the
Union did not control access to suit in court. To that extent, my
conclusion herein may be at variance with that of Judge Sternburg and,
while I deplore any such variance, I am constrained, by the language of
the Statute and by the decisions in American Federation of Government
Employees, Local 1778, AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (1983); and
National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 525 (1982),
to conclude that when a labor organization undertakes to provide
attorney representation in matters concerning conditions of employment
for some members of the bargaining unit it represents it must do so
without discrimination and without regard to labor organization
membership. (See, also, my decision in the Local 916 case). NTEU did
not provide attorney representation to Mr. Wright, a non-union member of
the bargaining unit, on the same basis as it provided attorney
representation to union members of the bargaining unit, but, to the
contrary, discriminated on the basis of labor organization membership.
While consideration of the merits of a case is a proper and valid
consideration if applied uniformly to all cases, it is not a valid or
proper consideration when joined with consideration of the employee's
labor organization membership. Nor do I find convincing NTEU's
assertion of cost as justification for discrimination against
non-members of the union. Under the Statute, exclusive recognition is a
valuable status for a labor organization but it does, indeed, impose a
duty and responsibility for representing the interests of all employees
in the unit it represents without discrimination and without regard to
labor organization membership. To assure its ability to do so, board
and liberal provision is made for the allowance of official time, for
services and for facilities. The doctrine of fair representation
developed in the private sector is applicable under the Statute; but
with an important and significant difference: Sec. 14(a)(1)
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" and violation of this obligation, inter alia,
constitutes an unfair labor practice under Sec. 16(b)(8) of the Statute.
The first sentence of Sec. 9(a) of the National Labor Relations Act, 29
U.S.C. 159(a), is substantially similar to the first sentence of Sec.
14(a)(1) of the Statute; but the language of the second sentence of
Sec. 14(a)(1) of the Statute, set forth above, is wholly absent in Sec.
9(a) of the NLRA. In addition, there is no unfair labor practice under
the NLRA comparable to Sec. 16(b)(8) of the Statute. Consequently,
under the Statute the statutory command of Sec. 14(a)(1), i.e., a
specific non-discrimination provision, must be enforced, not merely the
concept of fair representation developed in the private sector as
flowing from the right of exclusive representation.
Finally, President Connery's issuance and dissemination to Chapter
Presidents, including Ms. Green, President of Chapter 121, of his
memorandum of September 7, 1979, which stated, in part, that
" . . . NTEU will not supply attorneys to non-members to help
in representational efforts . . . ."
set forth a policy in violation of its obligation under Sec. 14(a)(1)
of the Statute to represent the interests of all unit employees without
discrimination and without regard to labor organization membership, and
the dissemination of such policy to its Chapter Presidents and its
implementation as a direction from the national President violated Secs.
16(b)(1) and (8) of the Statute, notwithstanding that the present record
does not affirmatively show that the contents of the September 7, 1979,
memorandum was posted, or otherwise communicated to employees. See,
National Treasury Employees Union (NTEU), Chapter 202, et al., 1 FLRA
No. 104, 1 FLRA 909 (1979). Moreover, a fully set forth in National
Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 525 (1982), President
Connery's memorandum of September 7, 1979, was posted elsewhere and was
implemented elsewhere; the memorandum of September 7, 1979, stated that
NTEU policy had not changed, "NTEU will not supply attorneys to
non-members"; Chapter President Green testified that the memorandum of
September 7, 1979, was consistent with the advice she had given Mr.
Wright (Tr. 32); and counsel for Respondents, representing and
accepting " . . . the fact that the ultimate decision in Case No.
3-CO-26 and 37 will be res judicata as to the September 7 Memorandum"
asserted that, " . . . it would be inefficient and useless to relitigate
the identical issue a second time in the present case . . . ", pursuant
to which assertion and representation, proof concerning the September 7,
1979, memorandum was abbreviated.
REMEDY
General Counsel and the Charging Party urge a board posting order,
i.e., "posting throughout all places of recognition and all related
National Treasury Employees Union offices" (G.C., Tr. p. 56; Charging
Party Brief, pp. 5-6). Because President Connery's memorandum of
September 7, 1979, was addressed to, and disseminated to, all Chapter
Presidents and, obviously, set a uniform policy for NTEU, I had
recommended a board posting order in National Treasury Employees Union,
supra, see, 10 FLRA at 521-522; however, the Authority at that time
disagreed, stating as follows:
" . . . The Authority concludes, however, consistent with
previous orders issued in like circumstances . . . that an order
requiring NTEU to cease and desist from such unfair labor
practices and to post notices only where the unlawful conduct was
shown to have occurred will best effectuate the purposes and
policies of the Statute. Thus, while the record indicates that
NTEU's conduct in this case was intended to test whether its
nationwide representation policy is inconsistent with the
requirements of the Statute . . . there is no basis for concluding
that NTEU will continue to apply such policy here found to
conflict with section 7114(a)(1) of the Statute at any other
locations after the issuance of this Decision. Therefore, the
Judge's recommended order shall be modified accordingly" (10 FLRA
at 522).
Here, Respondents specifically refused to comply with the Authority's
decision in National Treasury Employees Union, supra, after its issuance
and, although I am aware that NTEU has appealed that decision, it is
plain that unless an appropriate broad order is issued, inter alia, to
require that the policy stated in the September 7, 1979, memorandum be
withdrawn and that notice of such withdrawal be given broadly to all
employees in all units in which NTEU holds exclusive representation,
there will be lasting and continuing interference, coercion, and
restraint as the result of the outstanding statement of NTEU policy
which NTEU has expressly refused to abate in defiance of the Authority's
prior decision. Accordingly, I conclude that a broad posting order is
fully justified.
Accordingly, having found that Respondents violated Secs. 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
Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby
orders that the National Treasury Employees Union and the National
Treasury Employees Union Chapter 121 shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in units of exclusive recognition solely on the basis of
whether such employees are members of the National Treasury
Employees Union.
(b) Interfering with, restraining, or coercing unit employees
in the exercise of their right to refrain from joining, freely and
without fear or penalty of reprisal, the National Treasury
Employees Union, the National Treasury Employees Union, Chapter
121, or any other labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing unit employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) National Treasury Employees Union, by its President, shall
forthwith notify all National office officials, including its
legal staff, and each Chapter President, in writing, that the
National Treasury Employees Union's policy has changed; that the
National Treasury Employees Union will supply attorneys to
non-members to help in representational efforts on the same basis
as it supplies attorneys to members to help in representational
efforts; and that the statement in President Connery's memorandum
dated September 7, 1979, to the contrary is hereby withdrawn and
rescinded.
(b) National Treasury Employees Union will represent the
interests of all employees in all Units it represents without
discrimination and without regard to labor organization
membership.
(c) Post at its National Headquarters, at the local business
office of each of its Chapters, and at each agency or activity,
including but not limited to Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, for which the National Treasury
Employees Union, and/or any Chapter of the National Treasury
Employees Union holds exclusive recognition, and at all places
where notices to members and other employees are customarily
posted, copies of the attached notice marked "Appendix", 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 National Treasury Employees Union and they shall be posted and
maintained for 60 consecutive days thereafter in conspicuous
places, including all places where notices to members and the
other employee are customarily posted. The National Treasury
Employees Union shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Submit appropriate signed copies of such Notices to the
Director, Bureau of Alcohol, Tobacco and Firearms, Washington,
D.C.; and, upon request, to an appropriate officer of each other
agency or activity for which the National Treasury Employees Union
and/or any Chapter of the National Treasury Employees Union holds
exclusive recognition, for posting in conspicuous places where the
respective unit employees are located, where they shall be
maintained for a period of 60 consecutive days from the date of
posting.
(e) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R.
2423.30, notify the Regional Director of Region VI, Federal Labor
Relations Authority, whose address is: P.O. Box 2640, Dallas,
Texas 75221, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: July 15, 1983
Washington, DC
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
STATUTE WE
HEREBY NOTIFY ALL MEMBERS AND EMPLOYEES OF ALL UNITS FOR WHICH
THE
NATIONAL TREASURY EMPLOYEES UNION, AND/OR ANY CHAPTER OF THE
NATIONAL
TREASURY EMPLOYEES UNION, HOLDS EXCLUSIVE RECOGNITION, THAT:
WE WILL NOT afford differing standards of employee representation
solely on the basis of whether such employees are members of the
National Treasury Employees Union.
WE WILL NOT interfere with, restrain, or coerce unit employees in the
exercise of their right to refrain from joining, freely and without fear
or penalty or reprisal, the National Treasury Employees Union, the
National Treasury Employees Union, Chapter 121, 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 HEREBY NOTIFY all members and all employees in all units in which
we hold exclusive recognition that the National Treasury Employees
Union's policy has changed; that the National Treasury Employees Union
will supply attorneys to non-members to help in representational efforts
on the same basis as it supplies attorneys to members; and that the
statement in President Connery's memorandum, dated September 7, 1979, to
the contrary is hereby withdrawn and rescinded.
WE WILL represent all employees in units of exclusive recognition
without discrimination and without regard to labor organization
membership.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VI,
whose address is P.O. Box 2640, Dallas, Texas 75221 and whose telephone
number is (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ See Respondent's brief at 25-27.
/2/ The Authority is empowered to "require an agency or a labor
organization to cease and desist from violations of this chapter and
require it to take any remedial action it considers appropriate to carry
out the policies of this chapter." 5 U.S.C. 7105(g)(3). See Defense
Logistics Agency and Defense Logistics Agency, Defense Property Disposal
Service, Defense Property Disposal Regions, Memphis, Tennessee, Ogden,
Utah and Columbus, Ohio, 5 FLRA 126 (1981).
/3/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(b)(1) will be referred to, simply
as "16(b)(1)."
/4/ On January 13, 1983, NTEU filed a petition for review in the
United States Court of Appeals for the District of Columbia Circuit and
the Authority has filed a cross application for enforcement, Case No.
83-1054.
/5/ The charge (G.C. Exh. 1(a)) and Complaint stated that Mr.
Wright's conversation with Ms. Green occurred "On or about August 17,
1979", which was a Friday. Mr. Wright's second conversation with Mr.
Tobias could not have occurred earlier than the week of August 20-24.
Obviously, there was a very short time frame between the date of Mr.
Tobias' conversation with Mr. Connery concerning Mr. Wright's request
for representation and Mr. Connery's issuance of his memorandum of
September 7, 1979, in which he flatly stated that NTEU will not supply
attorneys to non-members; not that NTEU would supply attorneys to
non-members in meritorious cases. Moreover, President Connery's
memorandum states that NTEU policy has not changed, "NTEU will not
supply attorneys to non-members . . . ", by which, in context, President
Connery confirmed that this had been NTEU's policy prior to September 7,
1979.
/6/ Section 10(e) which was substantially the same as Sec. 14(a)(1)
of the Statute, provided, as material, as follows:
"When a labor organization has been accorded exclusive
recognition, it is the exclusive representative of employees in
the unit and is entitled to act for and to negotiate agreements
covering all employees in the unit. It is responsible for
representing the interests of all employees in the unit without
discrimination and without regard to labor organization membership
. . . ."