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18:0299(36)CO
The decision of the Authority follows:
18 FLRA No. 36
NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 204
Respondent
and
FEDERAL ELECTION COMMISSION
Charging Party
Case No. 3-CO-30039
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and the parties' contentions, the
Authority finds:
The complaint alleges that the National Treasury Employees Union and
National Treasury Employees Union, Chapter 204 (Respondent) failed and
refused to comply with section 7114(a)(1) of the Federal Service
Labor-Management Relations Statute (the Statute) /1/ in violation of
section 7116(b)(1) and (8) of the Statute /2/ by the issuance of a
memorandum to unit employees establishing different schedules for
members and nonmembers to telephone Respondent Chapter 204's President
to ascertain whether they were on an Agency list of employees
tentatively eligible to receive cash awards.
On September 20, 1978, the Respondent National Treasury Employees
Union was certified as the exclusive representative for a unit of all
professional and nonprofessional employees of the Federal Election
Commission (the Agency), including temporary employees. At all times
material herein, Respondent Chapter 204 has been the designated agent of
the Respondent National Treasury Employees Union for purposes of
representing employees in the unit described above. At all times
material herein, Philip J. Kellett has been the President of Chapter
204. On September 19, 1983, the Agency provided the Respondent with a
list of unit employees tentatively eligible to receive cash awards under
Article 20 of the collective bargaining agreement between the Agency and
the Respondent. On that same day, Kellett distributed a memorandum to
all unit employees informing them that the Respondent had received a
list of employees tentatively eligible to receive cash awards under
Article 20 of the agreement and established the following schedules
under which employees could telephone to find out if their names
appeared on the list:
Daily, 9:30 a.m. until 5:30 p.m., MEMBERS OF NTEU Chapter 204
may contact me to inquire about their standing.
Daily, from 5:30 p.m. until 5:45, NON-MEMBERS may call to make
inquiries.
The General Counsel contends that the Respondent's establishment of a
different schedule which provided a period of 15 minutes at the end of
the normal work day to nonmembers as opposed to 8 hours during the work
day for members to receive desired information breached its duty to
fairly represent all employees in the unit under section 7114(a)(1) in
violation of section 7116(b)(1) and (8) of the Statute. The Respondent,
on the other hand, contends that in the present case it had the right to
distinguish between members and nonmembers because it was not
"representing" unit employees as defined in the Statute.
The U.S. Court of Appeals for the District of Columbia Circuit, in
affirming the Authority's decision in National Treasury Employees Union,
10 FLRA 519 (1982), aff'd sub nom. National Treasury Employees Union v.
Federal Labor Relations Authority, 721 F.2d 1402 (D.C. Cir. 1983),
stated in part:
The duty of fair representation does not establish an objective
standard of 'adequate representation' that the union must meet as
a minimum, and that, once met, the union may use as a basis upon
which to discriminate between members and nonmembers. Rather,
under the duty of fair representation, a union may adopt virtually
any non-arbitrary standard for providing representation of
individual employees, so long as the standard adopted is applied
in a nondiscriminatory manner with respect to all unit employees,
i.e., members and nonmembers alike.
Subsumed within that duty also is the obligation not to discriminate on
the basis of union membership in representing unit employees on matters
affecting their conditions of employment. The Authority, in applying
the NTEU decision, supra, found in American Federation of Government
Employees, AFL-CIO, 17 FLRA No. 72 (1985), that the duty of fair
representation is not restricted to those proceedings under the sole
control of the exclusive representative as a consequence of its
certification. Rather, when an exclusive representative decides to
represent unit employees in any matter which affects their conditions of
employment, it has the duty under section 7114 of the Statute to
represent unit employees fairly, and may not discriminate with regard to
that representation on the basis of union membership.
In the present case, the Respondent voluntarily undertook to provide
unit employees with information concerning their eligibility to receive
cash awards, a matter affecting their conditions of employment. /3/ The
Respondent obtained that information from the Agency for dissemination
to unit employees. It is inferred that Respondent obtained such
information by virtue of its status as the employees' exclusive
representative. Thus, Respondent was acting in its capacity as the
exclusive representative of unit employees under section 7114(a)(1) when
it disseminated information to those employees concerning the
implementation of a collective bargaining agreement provision which
Respondent had negotiated with the Agency. In providing unit employees
access to this information, Respondent's decision to allow access to
union members for an eight-hour period during the work day while
restricting nonmembers to only 15-minutes at the end of the work day
constituted discrimination with regard to its representation on the
basis of union membership. In this regard, contrary to the Respondent's
assertion, the fact that unit employees are not being "represented" in a
formal or adversarial proceeding cannot absolve an exclusive
representative from the consequences of its demonstrably discriminatory
conduct when acting in its capacity as exclusive representative.
Further, by allowing nonmembers such a small segment of time to inquire
about the cash awards, this has the effect of coercing nonmembers to
join Respondent which is a violation of employee rights guaranteed under
section 7102 of the Statute. Accordingly, the Authority concludes that
by failing to give nonmembers equal time to inquire about their
eligibility to receive cash awards, a matter affecting their conditions
of employment and of obvious significance to them, the Respondent has
failed to meet its obligation under section 7114(a)(1) of the Statute
and thereby violated section 7116(b)(8) of the Statute. Further, by the
above conduct, the Respondent has interfered with, restrained and
coerced employees in the exercise of their rights guaranteed in section
7102 of the Statute in violation of 7116(b)(1) of the Statute.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the National Treasury
Employees Union and National Treasury Employees Union, Chapter 204
shall:
1. Cease and desist from:
(a) Affording differing standards of employee representation to
employees in its unit of exclusive recognition solely on the basis of
whether such employees are members of the National Treasury Employees
Union and/or National Treasury Employees Union, Chapter 204.
(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, National
Treasury Employees Union, Chapter 204 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) Represent all employees in its unit of exclusive recognition
without discrimination and without regard to membership in the National
Treasury Employees Union and/or National Treasury Employees Union,
Chapter 204.
(b) Post at its business offices and normal meeting places, including
all places where notices to members and employees of the Federal
Election Commission 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, or his designee, and
shall be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all places where notices to members and to
other employees are customarily posted. Reasonable steps shall be taken
to insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Submit appropriate signed copies of such Notice to the Chairman
of the Federal Election Commission for posting in conspicuous places
where the respective unit employees are located, where they should be
maintained for a period of 60 consecutive days from the date of the
posting.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER 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 afford differing standards of employee representation to
employees in our unit of exclusive recognition solely on the basis of
whether such employees are members of the National Treasury Employees
Union and/or National Treasury Employees Union, Chapter 204.
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 National
Treasury Employees Union, Chapter 204 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 represent all employees in our unit of exclusive recognition
without discrimination and without regard to membership in the National
Treasury Employees Union and/or National Treasury Employees Union,
Chapter 204.
(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, for Region III, Federal Labor Relations Authority, whose
address is: 1111 18th Street, N.W., P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(a)(1) provides:
Sec. 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 7116(b) provides in pertinent part:
Sec. 7116. Unfair labor practices
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/3/ See National Federation of Federal Employees, Local 1579 and
Veterans Administration Regional Office, Louisville, Kentucky, 12 FLRA
600 (1983).