20:0296(34)CA - DOL and Susan Wuchinich and Local 2513, AFGE -- 1985 FLRAdec CA
[ v20 p296 ]
20:0296(34)CA
The decision of the Authority follows:
20 FLRA No. 34
UNITED STATES DEPARTMENT
OF LABOR
Respondent
and
SUSAN WUCHINICH
Charging Party
and
LOCAL 2513, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Party In Interest
Case Nos. 2-CA-20669; 2-CA-30376
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 consolidated complaint and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge found that the Respondent had not
engaged in other unfair labor practices alleged in the consolidated
complaint and recommended dismissal of those portions of the
consolidated complaint. Thereafter, the General Counsel and the Party
In Interest /1/ filed exceptions and briefs, and the Respondent and AFGE
filed oppositions, and briefs in support of their oppositions, to the
General Counsel's exceptions.
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, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, only to the extent
consistent herewith.
The Authority disagrees with the Judge's conclusion that the unfair
labor practice charge in Case No. 2-CA-20669 was timely filed. The
charge and complaint in that case allege that the Respondent violated
the Statute by allowing its supervisors to vote in an election conducted
on January 12, 1982. Although Wuchinich, the Charging Party, learned of
that conduct in April 1982, about 3 months later, she did not file the
charge upon which Case No. 2-CA-20669 is based until September 24, 1982,
over 8 months after the election. Section 7118(a)(4) of the Statute
reads as follows:
Section 7118. Prevention of unfair labor practices
* * * *
(a)(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by reason
of--
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period,
the General Counsel may issue a complaint based on the charge
if the charge was filed during the 6-month period beginning on the
day of the discovery by the person of the alleged unfair labor
practice.
Thus, any charge alleging an unfair labor practice which is necessarily
based on conduct or events which occurred more than 6 months before the
filing of the charge is untimely under the provisions of section
7118(a)(4)(A) of the Statute, unless it is established that the
respondent agency or labor organization prevented the person filing the
charge from discovering the allegedly unlawful conduct within the
6-month limitations period by concealment or by failing to perform a
duty owed to the charging party. To allow the processing of this
complaint which relies, as the basis for the allegation of violation, on
events or conduct which occurred more than 6 months prior to the filing
of the charge upon which the complaint is based (the January 12, 1982
election) would be contrary to express statutory language. /2/ In this
regard, the House Committee Report accompanying H.R. 11280 stated with
respect to section 7118(a)(4), which was ultimately enacted and signed
into law without change, as follows:
Subsection (a)(4) prohibits the issuance of a complaint based
upon an unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority unless the
person aggrieved was prevented from filing the charge because the
agency or labor organization against whom the charge is made
failed to perform a duty owed to the aggrieved person, or due to
concealment. In addition, the concealment or failure to perform a
duty must have prevented the discovery of the unfair labor
practice within 6 months of its occurrence. /3/
Wuchinich learned that supervisors had voted about 3 months after the
January 1982 election. Thus, she was not prevented from discovery of
the unfair labor practice within 6 months of its occurrence, and she was
accordingly obliged to file the charge within 6 months thereof.
Accordingly, the complaint in Case No. 2-CA-20669 must be dismissed.
/4/
The remaining portion of the consolidated complaint, Case No.
2-CA-30376, in which the charge and complaint were timely filed, alleges
that the Respondent interfered with AFGE by allowing supervisors to vote
in that labor organization's January 18, 1983 election for officers in
violation of section 7116(a)(1) and (3) of the Statute, and further
alleges that the Respondent unlawfully assisted AFGE by deducting union
dues from the wages of certain supervisors in violation of section
7116(a)(1) and (3) of the Statute. Finally, the consolidated complaint
alleges that the Respondent, by failing to remove those supervisors from
dues withholding, failed to comply with section 7115(b)(1) of the
Statute /5/ and thereby violated section 7116(a)(1), (3) and (8). /6/
With respect to supervisors voting in internal union elections, the
Judge found, relying on private sector authority, that such conduct by
high level supervisors could constitute a violation, but that similar
conduct by first line supervisors might not. Noting that the record did
not establish the level of the supervisors involved, the Judge concluded
that the General Counsel had failed to sustain the burden of proving a
violation. The Authority does not adopt this portion of the Judge's
Decision. Section 7120(e) of the Statute expressly prohibits management
officials, supervisors and confidential employees both from acting as a
representative of a labor organization and from participating in its
management. /7/ The term "acting as a representative of a labor
organization" is not limited in the statutory language or in the
legislative history of section 7120(e). Thus, "acting as a
representative of a labor organization" clearly includes representation
of the union as an officer, a steward, a member of a bargaining
committee or in any other similar manner. Since representation of a
labor organization encompasses all such representative capacities, if
the subsequent phrase "or participation in its management" is not to be
interpreted as a mere redundancy, it must mean something different or
additional. /8/ In our view, taking part in the selection of union
officers to lead and direct the organization, or taking part in the
selection of union options on alternative courses of action, constitutes
such "participation in the management of a labor organization," and is
thereby proscribed by section 7120(e). Nothing in the Statute or its
legislative history suggests that such conduct by supervisors is
permissible, regardless of their level in the organization of an
activity. Indeed, if management officials, supervisors or confidential
employees were to influence a union's choice of bargaining goals by
voting in an election to determine those goals, such involvement would,
in our view, constitute sponsorship, control or, at the very least,
assistance of the union in violation of section 7116(a)(3) of the
Statute. Similarly, if such individuals were to influence the selection
of union negotiators or officers charged with achieving or administering
those goals, the result also would violate section 7116(a)(3). /9/
Further, the harm done to the independence of a labor organization
cannot be measured only in terms of the number of votes cast by
management officials, supervisors or confidential employees. Rather,
such individuals, because of their positions of authority, could exert
significant influence over rank and file employees in matters affecting
the management or policies of the labor organization. Accordingly, the
Authority concludes that the Respondent unlawfully assisted a labor
organization and additionally failed to comply with section 7120(e) of
the Statute in violation of section 7116(a)(1) and (3) of the Statute
/10/ by permitting its supervisors to vote in the Union's internal
election conducted on January 18, 1983.
The Judge also found that the Respondent violated section 7116(a)(1),
(3) and (8) of the Statute by deducting union dues from supervisors'
wages and by failing to remove them from dues withholding status. /11/
Section 7115(b) of the Statute requires that an allotment for the
deduction of dues shall terminate when the agreement between the agency
and the exclusive representative involved ceases to be applicable to the
employee. The Authority has previously held that when an employee has
been promoted to a supervisory position, the collective bargaining
agreement ceases to be applicable to the employee and effectuation of
the employee's allotment must terminate pursuant to section 7115 of the
Statute. /12/ If termination of such an allotment is required by the
Statute when an employee is promoted out of the bargaining unit, then it
follows that the failure to terminate allotments of supervisors who were
outside the unit at all times material herein violates section
7116(a)(1) and (8) of the Statute as well. /13/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the United States Department of Labor
shall:
1. Cease and desist from:
(a) Permitting supervisors to vote in internal union elections of
Local 2513, American Federation of Government Employees, AFL-CIO, or any
other labor organization.
(b) Failing and refusing to comply with the provisions of section
7115(b) of the Federal Service Labor-Management Relations Statute by
withholding and deducting dues from the pay of certain of its
supervisors who are not included within the bargaining unit exclusively
represented by Local 2513, American Federation of Government Employees,
AFL-CIO.
(c) In any like or related manner interfering with, restraining, or
coercing its 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) Issue a directive to supervisors not to vote in internal union
elections of Local 2513, American Federation of Government Employees,
AFL-CIO, or any other labor organization.
(b) Cease withholding and deducting dues from the pay of certain of
its supervisors who are not included within the bargaining unit
exclusively represented by Local 2513, American Federation of Government
Employees, AFL-CIO.
(c) Cease remitting to Local 2513, American Federation of Government
Employees, AFL-CIO, any dues withheld and deducted from the pay of such
supervisors who are not included within the bargaining unit.
(d) Post at all its facilities in Region II 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
Regional Administrator, or a designee, and shall be posted and
maintained for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region II, 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 complaint in Case No. 2-CA-20669 be,
and it hereby is, dismissed.
Issued, Washington, D.C. September 26, 1985
(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., 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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT permit supervisors to vote in internal union elections of
Local 2513, American Federation of Government Employees, AFL-CIO, or any
other labor organization.
WE WILL NOT fail or refuse to comply with the provisions of section
7115(b) of the Federal Service Labor-Management Relations Statute by
withholding and deducting dues from the pay of supervisors who are not
included within the bargaining unit exclusively represented by Local
2513, American Federation of Government Employees, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL issue a directive to supervisors not to vote in internal
union elections of Local 2513, American Federation of Government
Employees, AFL-CIO, or any other labor organization.
WE WILL cease withholding and deducting dues from the pay of
supervisors who are not included within the bargaining unit exclusively
represented by Local 2513, American Federation of Government Employees,
AFL-CIO.
WE WILL cease remitting to Local 2513, American Federation of
Government Employees, AFL-CIO, any dues withheld and deducted from the
pay of supervisors who are not included within the bargaining unit.
(Agency or Activity)
Dated: By: (Signature)
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 of compliance
with its provisions, they may communicate directly with the Regional
Director, Federal Labor Relations Authority, Region II, whose address
is: 26 Federal Center Plaza, Room 2237, New York, New York 10278, and
whose telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 2-CA-20669
2-CA-30376
Cynthia Harman, Esq.
For the Respondent
Alfred R. Johnson, Esq.
For the General Counsel
Susan Wuchinich
For the Charging Party
Peter Richardson
For the Party in Interest
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Order Consolidating Cases, Complaint and Notice of
Hearing issued on August 31, 1983, by the Acting Regional Director for
the Federal Labor Relations Authority New York, N.Y. Region, a hearing
was held before the undersigned in January 10, 1984, at New York, N.Y.
These cases arise under the Federal Service Labor-Management
Relations Statute (herein called the Statute). Case No. 2-CA-20669 is
based on a charge filed on September 24, 1982, by Susan Wuchinich, an
Individual, against United States Department of Labor (herein called
Respondent). /14/ Case No. 2-CA-30376 is based on First Amended Charge
filed on August 30, 1983, by Susan Wuchinich against the United States
Department of Labor, or Respondent. /15/
The Complaint herein alleged, in substance, (a) that on or about
January 12, 1982 and January 18, 1983, Respondent interferred with,
sponsored, controlled, or otherwise assisted the Union by allowing
managers and supervisors to vote in an Election of Union officers held
on said dates; (b) that since November, 1981, Respondent has assisted
the Union by deducting dues from the wages of supervisors or management
officials and remitting said monies to the Union, and has failed to
remove the supervisors or management officials from dues withholding as
required by Section 7115(b) of the Statute-- all in violation of Section
7116(a)(1), (3) and (8) thereof.
Respondent's Amended Answer, dated January 9, 1984, denied that the
National Council of Field Labor Locals (AFGE) represents employees in
the Washington, D.C. area; denied that the said National Council
delegated to the Union herein (Local 2513, AFGE) the Authority to act as
its representative to bargain on behalf of unit employees in
Respondent's Region II. Respondent alleged it bargains with designated
representatives by the National Council and not with local unions. It
admitted that the individuals named in the complaint, /16/ except for
Eric Nielsen and Nicholas Snowdon, /17/ were still employed by
Respondent.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings and Fact
1. At all times material herein the National Council of Field Labor
Locals, American Federation of Government Employees, AFL-CIO (National
Council), has been and still is the exclusive bargaining representative
of all employees throughout the nation in field duty stations of
Respondent, including field duty stations within the Washington, D.C.
metropolitan area and Respondent's Region II, excluding certain
managerial personnel, supervisors and other specified classes of
employees.
2. At all times material herein the National Council has delegated
to Local 2513, AFGE (Union) authority to act as its representative for
the purposes of collective bargaining on behalf of unit employees in
Respondent's Region II.
3. In respect to Case No. 2-CA-20669, record facts show that an
Election of Union officers was scheduled to be held on January 12, 1982.
The Union officer to be elected were: President, Executive
Vice-President, Secretary-Treasurer, Recording Secretary,
Sergeant-at-Arms, and 5 Vice-Presidents.
4. Prior to the aforesaid scheduled election, the Union's Election
committee sent a letter dated December 14, 1981 to its members
announcing the forthcoming election. Included with the letter was a
mail ballot with the names of the candidates for each office, a
self-addressed stamped envelope, and instructions re voting procedure
and for the return of the ballot by mail.
5. The eligibility list for the election on January 12, 1982 was the
bi-weekly Union dues report for the pay period ending November 28, 1981.
This report listed all the employees and whether or not their dues had
been checked off by Respondent.
6. The tally of ballots was conducted at Hempstead, N.Y. on January
12, 1982, after the ballots had been sent in as instructed. The results
thereof were announced at a general membership meeting on January 19,
1982. In respect to the position of Executive Vice-President, none of
the candidates received a majority of the votes. Hence, a run-off
election for this position was held on February, 1982 and a particular
individual was elected.
7. Prior to the run-off, and in January, 1982, Susan Wuchinich, who
was elected Secretary-Treasurer of the Union, called Harold LeMar,
chairman of the Union's Election Committee. She requested that he send
her the records and documents of the election. LeMar stated he
preferred to wait till the run-off election took place and would send
them thereafter. On February, Wuchinich repeated her request to LeMar
for the materials. The latter informed the secretary-treasurer that he
wanted to keep the records until they were examined by an AFGE official
since there had been a Union protest over the election. When Wuchinich
asked for the date again in March, LeMar stated he was going on vacation
and would sent them upon his return.
8. Toward the end of April, 1982, the election records were received
by Wuchinich. Upon examination of the material, she discovered that
about six or seven individuals who voted in the January 1982 election
were supervisors or management officials. /18/
9. By letter dated May 8, 1982, Wuchinich notified the Labor
Management Services Administration (LMSA) that she protested the January
1982 Election. She based her complaint on the grounds that: (a) the
Union Election committee disregarded the attendance requirement for
candidates for several offices; (b) supervisory personnel, whom she
named, received ballots and voted in the election.
10. It was determined by LMSA that the conduct of the January, 1982
election may have violated Section 208.29 of the Code of Federal
Regulations. This was due to the failure of the Union to apply
uniformly the meeting attendance requirement set forth in the Union's
by-laws. /19/ Although waived by the Union, the latter failed to notify
its membership of this waiver. As a result of this determination, the
Union agreed to conduct new nominations and a new election of officers
under the supervision of LMSA.
11. In a letter dated October 16, 1982, Wuchinich requested the
Director of LMSA to rule on her original protest that the voting in the
January, 1982 election was improper and violative of AFGE Constitution,
Article 3, Section 3.
12. The Director replied to the October 16, 1982 letter and notified
Wuchinich that election of union officers is governed by the standards
set forth in Section 401 of the Labor-Management Reporting and
Disclosure Act of 1959. He advised further that under normal
circumstances it would be violative of Section 401 LMRDA for a
supervisor to hold office in a labor organization due to an apparent
conflict of interest. However, he added that such Act does not prohibit
members who are supervisors from voting in an election; that the right
of these members to participate in the local's affairs, including voting
for officers, is to be decided by each union. Thus, he concluded that,
unless prohibited by the labor organization's constitution and by-laws
or established practice, members who are supervisors would be eligible
to vote in officer-elections. Since the members had voted in past local
elections, no violation occurred when those supervisors were permitted
to vote.
13. Arrangements were made for a new election of officers of the
Union. The eligibility list for this election was Respondent's
bi-weekly Union dues withholding list dated November 27, 1982. The
ballot with self-addressed stamped envelopes were sent to voting
members. /20/
14. In respect to Case No. 2-CA-30376, record facts show that the
election of Union officers was scheduled to be held on January 18, 1983.
The same positions were to be filed by reason of this election as in
the January 12, 1982 election.
15. Under the supervision of LMSA the tally of ballots took place on
January 18. As occurred in the 1982 Election, supervisors had voted in
the new Election. /21/ Since none of the candidates for positions of
Recording-Secretary and Sergeant-at-Arms received a clear majority of
the ballots which were cast, a run off election for those offices was
held on March 8, 1983.
16. On April 7, 1983, the Director of LMSA issued a written
determination that a violation of Section 208.29 of the Rules and
Regulations, which may have affected the outcome of the Union by the
Election held in January, 1982, has been remedied by the new election
held on March 8, 1983; that enforcement proceedings to set aside the
1982 Election are not warranted.
17. In accord with the stipulation between the parties, record facts
disclose that from November, 1981, and continuing to at least the first
week of January, 1984, Respondent deducted dues from the wages of the
following employees who are deemed supervisors: Roosevelt Bynoe, Paul
Cash, Lawrence Cimato, Robert Collins, Nicholas DiArchangel, Dennis
Gaughan, Frances Morse, Richard Palmieri, Richard Pierce, James
Register, Edward Scott, Jerry Wilson, Chester Whiteside.
Conclusions
There are four principal issues presented herein for determination.
They are as follows:
1. Whether the charge in Case No. 2-CA-20669, which was filed
on September 21, 1982, was timely under Section 7118(a)(4) of the
Statute.
2. Whether the Authority lacks jurisdiction herein, in view of
Section 7120(d) of the Statute which vests supervision of union
elections in the Assistant Secretary for Labor-Management
Relations of the Department of Labor.
3. Whether the Respondent agency violated Section 7116(a)(1)
and (3) of the Statute by virtue of its supervisors having voted
in the union election on January 12, 1982 and January 18, 1983 for
union officers.
4. Whether the Respondent agency unlawfully assisted Local
2513, AFGE, by deducting and withholding dues from wages of
supervisors, and remitting same to Local 2513, AFGE, from
November, 1981 to January, 1984-- all in violation of Section
7116(a)(1)(3) and (8) of the Statute. /22/
Timeliness of the Charge in Case No. 2-CA-20669
In its brief to the undersigned the Unions herein challenges the
timeliness of the charge filed in September 21, 1982, against
Respondent. It is contended that the alleged wrongful conduct, i.e. the
voting in the January 12, 1982 election for union officers by
supervisors, occurred more than six months prior to filing said charge.
Accordingly, it is urged by the Union that, under Section 7118(a)(4) of
the Statute, the charge in Case No. 2-CA-20669 was not timely, that the
Complaint in said case, having been improperly issued, should be
dismissed.
Seeking to preclude the filing of stale charges, Section 7118(4)
provides as follows:
(A) Except as provided in subparagraph (B) of this paragraph,
no complaint shall be issued based on any alleged unfair labor
practice which occurred more than 6 months before the filing of
the charge with the Authority.
(B) If the General Counsel determines that the person filing
any charge was prevented from filing the charge during the 6-month
period referred to in subparagraph (A) of this paragraph by
reasons of--
(i) any failure of the agency or labor organization against
which the charge is made to perform a duty owed to the person,
or--
(ii) any concealment which prevented discovery of the alleged
unfair labor practice during the 6-month period, The General
Counsel may issue a complaint based on the charge if the charge
was filed during the 6-month period beginning on the day of the
discovery by the person of the alleged unfair labor practice.
It is contended by General Counsel that the instant case is governed
by subdivision B(ii) of Section 7118(4) of the Statute which pertains to
any concealment preventing the discovery of the unfair labor practice
during the 6-month period. The particular language in that subdivision
would be applicable to instances, as the one at hand, where material or
information is concealed by one other than the party against whom the
charge is filed.
Reasonable construction of the foregoing provision leads to the
conclusion that Congress intended to provide a party with 6 months for
filing of a charge after alleged unlawful conduct occurred. Thus, if at
any time during the 6 month period a party is prevented from discovering
the unlawful practice due to concealment, he should not be penalized by
affording him less than the allotted period. In such an instance, the
party may properly be allowed a full 6 months from the discovery of the
said conduct. Were it to be concluded that it is sufficient if a party
is able to file a charge during the original 6 month period, data could
be concealed until the "eleventh" hour and close out any opportunity for
him to file within 6 months.
In the case at bar Wuchinich was prevented from discovering until
April, 1982 the fact that supervisors voted in the January 12, 1982
Election. By reason of the Union's refusal to send her the records
until April, Wuchinich did not have a period of 6 months from the
occurrence (voting by supervisors) within which to file her charge. She
had, in fact, about 3 months. Further, there is no evidence that
Wuchinich learned beforehand that the supervisors had voted in the
election for union officers. Thus, unless the circumstances herein do
not fall within the statutory proscription set forth in 7118(4)(B)(ii),
the charging party was entitled to file the charge within 6 months
following April, 1982. /23/
However, consideration must be given to the word "concealment" which
is the basis for tolling the statute and extending the time period for
filing the charge. Neither legislative history nor decisioned law in
the public sector discloses what was intended by the use of said reward.
It should be noted that Webster's Third International Dictionary
defines "conceal" as, inter alia, meaning "withholding knowledge" or
"refrain from revealing."
While it may be argued that concealment implies a deliberate or
wilful intent to hide, I am persuaded that the term should encompass a
failure or refusal to disclose information forming the basis of unlawful
conduct. Further, the provision under 7118(4)(B)(ii) does not, as does
7118(4)(B)(i), allude to conduct on the part of the party against whom
the charge is filed in order to toll the 6 month period. Thus,
concealment by one other than such party suffices to extend the
limitation period. Since Wuchinich was not furnished the records by the
Union until April, 1982, despite her repeated requests for same, I
conclude that the alleged unlawful conduct, i.e. voting by supervisors
in the election of Union officers, was concealed from her within the
meaning of the Statute. Accordingly, and in view of the foregoing, it
is determined by the undersigned that the charge was timely filed on
September 21, 1982, within 6 months from the date (April, 1982) when
such conduct was discovered.
Jurisdiction of FLRA
Both the Union and Respondent assert that exclusive jurisdiction to
determine the controversy herein, i.e. voting eligibility, is vested in
the Assistant Secretary of Labor for Labor-Management Relations. It is
insisted that Section 7120 of the Statute provides for the latter to
oversee internal union affairs. Further, guidance in respect thereto is
furnished by the Rules and Regulations of the Labor Management Services
Administration /24/ which regulates union elections and the
participation of supervisors or others in union affairs. In support of
this position the attention of the undersigned has been called to
American Federation of Government Employees, Local 2000, AFL-CIO, 8 FLRA
No. 125.
Although Section 7120(d) of the Statute states that complaints
concerning violations of 7120 shall be filed with the Assistant
Secretary, it seems clear that it is referable to internal affairs of a
union. Where a case involves such standards of conduct involving
internal union matters, the Authority would seemingly defer jurisdiction
to the Assistant Secretary. Such matters might well include proper
nominating procedures, procedural practices for union election, and
filing acquirement. /25/ In American Federation of Government
Employees, Local 2022, AFL-CIO, supra discipline of a union member in
accordance with the constituted by-laws of the union was deemed a
legitimate internal union officers. The Authority concluded it was not
litigable as an unfair labor practice.
However, the fact that the Assistant Secretary has set forth
regulations /26/ governing the conduct of elections does not, in my
opinion, deprive the Authority from exercising jurisdiction when conduct
constitutes an unfair labor practice under the Statute. I do not deem
the standards of conduct which regulate union internal affairs as
preempting a determination by the Authority as to infringement of the
Statute. In the case at bar, the allegations in the Complaint go to the
commission of unlawful acts by the agency. While these acts may have
occurred in connection with the Union election of officers, they are
alleged to be unfair labor practices. As such, the allegations do not
involve pure internal affairs of the Union, and do not involve standards
of conduct of a Union in connection therewith. Accordingly, I conclude
the Authority has jurisdiction in respect to the alleged acts of
assistance and interference by Respondent due to supervisors voting in
the election of union officers.
Voting By Supervisor In Election of Union Officers As Allegedly
Violative of Section 7116(a)(1) and (3) of the Statute.
General Counsel, in maintaining that the voting by 13 supervisors in
the Election of Union officers ran afoul of the Statute, relies in large
part upon Section 7120(e). This latter provision states as follows:
This chapter does not authorize participation in the management
of a labor organization or acting as a representative of a labor
organization by a management official, a supervisor, or a
confidential employee, except as specifically provided in this
chapter, or by an employee if the participation or activity would
result in a conflict or apparent conflict of interest or would
otherwise be incompatible with law or with the official duties of
the employee.
It is contended that participation by supervisors in such a union
election necessarily interferes with the internal affairs of the labor
organization. This results from the fact that the supervisors would be
in a position to determine the officials of the Union, and thus they
could conceivably select the individuals with whom they might negotiate
or bargain. Furthermore, the General Counsel draws attention to the
private sector where, under the National Labor Relations Act, it has
been held that participation of supervisors in selecting union officials
constitutes interference in the internal officers of a union. See
Nassau and Suffolk Contractors' Association, Inc., 118 NLRB 174.
The issue involved herein is one of first impression in the public
sector. It has, however, been the subject of discussion and resultant
decisions in the private sector. In the lead case, Nassau and Suffolk
Contractors Association, supra, the National Labor Relations Board,
(herein called the Board) concluded that high ranking supervisors could
not lawfully participate in elections to determine who is to administer
the affairs of a union. As stated by the Board, "It is quite
conceivable that in a closely divided vote executive and high ranked
supervisors would have the balance of power and be in a position to
select the union officials who are to deal with them in their separate
capacity as employer agents." It was held therein that voting by
supervisors in the union election constituted interference with the
internal administration of the union. This holding was followed by the
Board in Employing Bricklayers Association, 127 NLRB 188, enforced in
292 F.2d 627 (C. CA. 3, 1961), which adhered to the doctrine that the
mere act of voting in a union election by employer officers and
supervisory employees constituted a form of interference with the
administration of the union in violation of the National Labor Relations
Act. /27/
The foregoing principle of law was somewhat refined in Local 636,
Plumber v. NLRB (Detroit Association of Plumbing Contractors), 287 F.2d
354, (CA D.C.), 1961. While agreeing with the Board that active
participation in union affairs is properly deemed "interference," the
Circuit Court concluded that not every supervisor should be barred from
active participation in a journeymen's union. It set forth three items
for consideration in determining whether participating in union affairs
should be viewed as improper: (1) the nature of the supervisory
position-- how completely the responsibilities of the position identify
its holder with management; (2) apparent permanence of the supervisory
position - how long held, and how high it is in the company's hierachy
of supervisors; (3) the extent to which the supervisor's position is
included in or excluded from the bargaining unit. /28/ In respect to
one supervisor, who had 40-60 men under him including 6-10 foremen, the
Court remanded the case to the Board to determine whether, in light of
these considerations, the supervisors attendance at union meetings and
voting in its election was improper.
Except for the case law alluded to, very little light is shed on
whether an agency such as Respondent interferes with the internal
administration of a union when its supervisors vote in an election of
union officers. The sole express declaration in this respect is seen in
the LMSA Rules and Regulations where, in Section 425.91, it is stated
that "voting in union elections by employers, self-employed persons,
supervisors or other persons who are considered to be part of management
is not precluded by Title III of the Act . . . " /29/ Nevertheless, this
provision does not deal with, or determine, whether such voting by
supervisors runs counter to Section 7120(e) of the Statute and would be
violative of Section 7116(a)(1) and (3) thereof.
An analysis of the cases in the private sector reflects that neither
the courts nor the National Labor Relations Board looks askance at the
mere membership of supervisors in a union. However, when supervisors
hold office in a labor organization, or vote in elections, the employer
may well be deemed to have interfered in the internal affairs of the
union. The ratio decidendi of such conclusion, nevertheless, is that
the supervisors are thus enabled to select the union officials with whom
they may be bargaining. Accordingly, the courts have focused on the
particular status of supervisors voting in a union election to determine
whether they are high in the hierachy of management. Further, as
revealed in Local 636, Plumber v. NLRB, supra, the Circuit court was
concerned with the nature of the supervisor's position, his identity
with management, and his responsibilities.
Turning to the case at bar, I am persuaded that the same
considerations should prevail in the public sector and govern the
instant matter. Mere voting in an election of officers by supervisors
may, or may not, constitute interference in the administration of the
affairs of a labor organization. A determination in that regard might
well depend on the status of said supervisors and their standing or
position with Respondent. In some instances such individuals would not
be negotiating with the bargaining agent, and these supervisors may well
have no dealings with the union officials. Nothing in Section 7120(e)
calls for a contrary conclusion. The language therein proscribes a
supervisor's participating in management of a labor organization if such
activity result in a conflict of interest, is incompatible with law, or
the official duties of the employee. Accordingly, it seems apparent
that the status of the supervisor and his standing in management's
hierachy - as deemed significant by the courts - should be determinant
factors in deciding whether their voting was proper. /30/ The standing
of the 13 supervisors herein who voted in the January, 1982 and 1983
elections does not appear in the record since no evidence was introduced
to demonstrate the nature of the position and the extent of managerial
identity. Thus, it cannot be determined whether voting by the
Respondent's supervisors in the Union election resulted in a conflict of
interest under Section 7120(e) of the Statute. In sum, I find that
General Counsel has failed to establish that the supervisors were high
ranking individuals, and so identified with management, that one may
conclude the Respondent interfered with the administration of the Union
by permitting them to vote in the latter's election. /31/ Accordingly,
since the record does not contain adequate and sufficient evidence as to
the status of the supervisors who voted for the Union officers, I find
that General Counsel has not sustained his burden of proving a violation
of Section 7116(a)(1) and (3) in this regard.
Withholding of Supervisors' Union Dues By Respondent As Unlawful
Assistance In Violation of Section 7116(a)(1), (3) and (e) of the
Statute.
It is undisputed that Respondent deducted dues from the wages of the
13 supervisors /32/ between November, 1981 and January, 1984. Moreover,
Respondent concedes that such deduction flouted Section 7115(b) of the
Statute and constituted an unfair labor practice. This section
authorizes an agency to deduct dues from the pay of an employee in an
appropriate unit and assign same to the bargaining representative.
However, when the employee is in a supervisory position and outside the
bargaining unit, the collective bargaining agreement ceases to be
applicable to him. An allotment pursuant to Section 7115 must cease.
See Internal Revenue Service, Fresno Service Center, Fresno, California,
7 FLRA No. 54. Accordingly, I conclude that by deducting dues from the
pay of the 13 named supervisors herein between November 1981 and
January, 1984, and remitting same to the Union, Respondent failed to
comply with the aforesaid section of the Statute and rendered assistance
to the bargaining representative - all in violation of Section
7116(a)(1), (3) and (8).
Having found that Respondent did not violate Section 7116(a)(1) and
(3) of the Statute by virtue of the 13 named supervisors having voted in
the election of Union officers on January 12, 1982 and January 10, 1983,
I recommend dismissal of the complaint in these respects. Having found
that Respondent violated Sections 7116(a)(1), (3) and (8) of the Statute
by virtue of deducting Union dues from the pay of the 13 named
supervisors between November, 1981 and January, 1984 and remitting same
to the Union herein, I recommend the Authority issue the following:
ORDER
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
Rules and Regulations, it is hereby ordered that the United States
Department of Labor shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the provisions of
Section 7115(b) of the Federal Service Labor-Management Relations
Statute by withholding and deducting dues from the pay of
employees who are supervisors and not included within the
bargaining unit.
(b) Assisting or supporting Local 2513, American Federation of
Government Employees, AFL-CIO, representative of the exclusive
bargaining agent, by withholding and deducting dues from the pay
of employees who are supervisors, and not included in the
bargaining unit, and by remitting said dues to Local 2613,
American Federation of Government Employees, AFL-CIO.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Statute:
(a) Discontinue and cease withholding and deducting dues from
the pay of its employees who are supervisors and not included
within the bargaining unit.
(b) Discontinue and cease remitting to Local 2513, American
Federation of Government Employees, AFL-CIO, any dues withheld and
deducted from the pay of its employees who are supervisors and not
included within the bargaining unit.
(c) Post at all its facilities in Region II where dues were
deducted from the pay of its employees who were supervisors, and
transmitted to Local 2513 American Federation of Government
Employees, 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 Regional Administrator
and shall be posted and maintained by him for 60 consecutive days
thereafter in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Federal Labor Relations Authority, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply therewith.
(s) WILLIAM NAIMARK
WILLIAM NAIMARK
Administrative Law Judge
Dated: July 30, 1984
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
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to comply with the provisions of Section
7115(b) of the Federal Service Labor-Management Relations Statute by
withholding and deducting dues from the pay of employees who are
supervisors and not included within the bargaining unit.
WE WILL NOT assist or support Local 2513, American Federation of
Government Employees, AFL-CIO, representative of the exclusive
bargaining agent, by withholding and deducting dues from the pay of
employees who are supervisors, and not included within the bargaining
unit, and by remitting said dues to Local 2513, American Federation of
Government Employees, AFL-CIO.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL discontinue and cease withholding and deducting dues from the
pay of our employees who are supervisors and not included within the
bargaining unit.
WE WILL discontinue and cease remitting to Local 2513, American
Federation of Government Employees, AFL-CIO, any dues withheld and
deducted from the pay of our employees who are supervisors and not
included within the bargaining unit.
(Agency or Activity)
Dated: By: (Signature)
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 II,
whose address is: 26 Federal Plaza, Room 24-102, New York, New York
10278 and whose telephone number is: (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ Pursuant to section 2423.19(q) of the Authority's Rules and
Regulations, Local 2513, American Federation of Government Employees,
AFL-CIO (hereinafter, AFGE) was permitted by the Judge to appear as a
party in interest.
/2/ See United States Department of the Interior, Lower Colorado Dams
Project, Water and Power Resources Service, 14 FLRA 539, 542-543(1984).
/3/ H.R. Rep. No. 95-1403, 95th Cong., 2d Sess., at 52-53(1978),
reprinted in H.R. Subcomm. on Postal Personnel and Modernization of the
Comm. on Post Office and Civil Service, 96th Cong., 1st Sess.,
Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 698-699
(1979).
/4/ In view of the Authority's finding in this regard, it is
unnecessary to pass upon the Judge's remaining conclusions concerning
the applicability of section 7118(a)(4)(B) of the Statute to the facts
of this case.
/5/ Section 7115(b)(1) provides in pertinent part:
Section 7115. Allotments to representatives
* * * *
(b) An allotment . . . for the deduction of dues with respect
to any employee shall terminate when--
(1) the agreement between the agency and the exclusive
representative involved ceases to be applicable to the employee .
. . (.)
/6/ Section 7116(a)(1), (3) and (8) provides:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * * .
(3) to sponsor, control, or otherwise assist any labor
organization, other than to furnish, upon request, customary and
routine services and facilities if the services and facilities are
also furnished on an impartial basis to other labor organizations
having equivalent status;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/7/ Section 7120(e) provides:
Section 7120. Standards of conduct for labor organizations
* * * *
(e) This chapter does not authorize participation in the
management of a labor organization or acting as a representative
of a labor organization by a management official, a supervisor, or
a confidential employee, except as specifically provided in this
chapter, or by an employee if the participation or activity would
result in a conflict or apparent conflict of interest or would
otherwise be incompatible with law or with the official duties of
the employee.
/8/ "(I)t is a fundamental principle of statutory construction that
'effect must be given, if possible, to every word, clause and sentence
of a statute.' . . . so that no part will be inoperative or superfluous,
void or insignificant." Indianapolis Power and Light Co. v. Interstate
Commerce Commission, 687 F.2d 1098, 1101 (7th Cir. 1982), quoting from
2A Sutherland, Statutory Construction Section 46.6. See also, to the
same effect, National Association of Recycling Industries, Inc. v.
Interstate Commerce Commission and United States of America, 660 F.2d
795, 799 (D.C. Cir. 1981); In Re Surface Min. Regulation Litigation,
627 F.2d 1346, 1362 (D.C. Cir. 1980).
/9/ Although no charge or complaint was filed against the labor
organization in the instant case, it is evident that, since supervisory
voting in internal union elections violates section 7120(e) of the
Statute, and since labor organizations uniquely control participation in
such elections, permitting such activity to occur would also violate
section 7116(b)(8) of the Statute if so charged. Section 7116(b)(8)
provides that it is an unfair labor practice for a labor organization
"to otherwise fail or refuse to comply with any provision of this
chapter."
/10/ The Authority notes that the complaint did not contain an
allegation that by failing to comply with section 7120(e), the
Respondent also violated section 7116(a)(8) of the Statute.
/11/ The respondent filed no exceptions to the Judge's findings in
this regard. However, AFGE did so except.
/12/ Department of the Air Force, 3840th Air Base Group, Goodfellow
Air Force Base, Texas, 9 FLRA 394, 396(1982), enforcement denied on
other grounds sub nom. AFGE Local 1816 v. FLRA (Goodfellow Air Force
Base, Texas), 715 F.2d 224 (5th Cir. 1983).
/13/ In view of our finding herein, it is unnecessary to pass upon
whether this conduct also violated section 7116(a)(3) of the Statute.
/14/ The charge in 2-CA-20669 alleged a violation by Respondent of
7116(a)(1) and (3) based on supervisors having voted in an Election in
December, 1981, of officers for Local 2513, American Federation of
Government Employees, AFL-CIO (herein called the Union).
/15/ The original charge in 2-CA-30376 was filed by Susan Wuchinich
on April 11, 1983, alleging a violation by Respondent of 7116(a)(1) and
(3) based on an election being held on January 18, 1983 for Union
officers at which supervisors voted. A first Amended charge in
2-CA-30376 alleged a violation of 7116(a)(1), (3) and (8) based on the
supervisors voting in said election and the withholding (checkoff) by
Respondent of dues of its supervisors not in the bargaining unit.
/16/ There were 17 individuals named in the Complaint who, as alleged
supervisors, were employed in Region II, and voted in the Elections of
January 12, 1982 and January 18, 1983, and for whom dues were checked
off and remitted to the Union. Those so named were Richard Palmieri,
Roosevelt Bynoe, Chester Whiteside, Robert Collins, Lawrence Cimato,
Dennis Guaghan, Richard Pierce, James Register, Jerry Wilson, Paul Cash,
Nicholas DiArchangel, Eric Nielsen, Abraham Hyman, Elinora Yadoff,
Edward Scott, Frances Morse, and Nicholas Snowdon.
/17/ At the hearing General Counsel amended the Complaint to delete
Nielsen and Snowdon as individuals who voted, as supervisors, in the
Union election, and for when dues were check-off. In the same respects
it deleted Abraham Hymen and Elinora Yadoff from the Complaint.
/18/ The record reflects that the individuals who voted in the
Election, and who performed supervisory functions at the time, were:
Roosevelt Bynoe, Paul Cash, Nicholas DiArchangel, Dennis Gaughan,
Frances Morse, Richard Palmieri, Richard Pierce, Edward Scott, and
Chester Whiteside.
/19/ The Chief of the office of Labor-Management Standards
Enforcement of DOL, Fred Heitmann testified that while Wuchinich
maintained in her complaint that supervisors voted in the election, it
could not be investigated as a violation. He stated that such a
complaint must be pursued by a member through the union so the latter
can correct the violation initially. DOL did not deem the allegation re
voting by supervisors as within the scope of the Complaint by Wuchinich.
/20/ A total of 13 supervisors voted in the two Elections, January
12, 1982 and January 18, 1983. None of these individuals was included
within the bargaining unit.
/21/ Those individuals who voted in the 1983 election, and also
performed supervisory functions at the time, were: Roosevelt Bynoe,
Lawrence Cimato, Dennis Gaughan, Frances Morse, Richard Palmieri,
Richard Pierce, James Register and Jerry Wilson.
/22/ Although this issue is posed for determination by the Union,
Respondent agency concedes it violated the Statute by withholding union
dues of its supervisors.
/23/ See, in the private sector, Wisconsin River Valley District
Council et al, 222 NLRB 222, 227 where the National Labor Relations
Board held the 6-month period of limitations, prescribed by 10(b) of the
NLRA, does not begin to run on an alleged unfair labor practice until
the person affected is put on notice of the act constituting such
practice. In the cited case the employee was unaware of a union fine
denied before the 10(b) period, and became aware within the period when
a court suit was filed to collect the fine.
/24/ Section 452.91 of said rules declares, in substance, that voting
by supervisors, or those part of management, is not precluded by Title
IV of the Labor Management Relations Disclosure Act even if not required
to maintain union membership as a condition of employment.
/25/ Defense Logistics Agency, 5 FLRA 21.
/26/ 29 CFR 208.29 in referring to the Labor-Management Reporting and
Disclosure Act, provides that "Every labor organization subject to the
Act shall conduct periodic elections of officers in a fair and
democratic manner. All elections of officers shall be governed by the
standards prescribed in Sections 401(a), (b), (c), (d), (e), (f) and (g)
of the LMRDA to the extent that such standards are relevant to elections
held pursuant to the provisions of 5 U.S.C. 7120."
/27/ See also Anchorage Businessmen's Association, 124 NLRB No. 72
wherein the Board declared that, inter alia, by participating in voting
at a union election, supervisors are in a position to influence the
administration of the union's affairs in the employer's interests.
/28/ Since the supervisors herein were excluded from the bargaining
unit, this criterion has no applicability in the instant case.
/29/ Labor-Management Reporting and Disclosure Act.
/30/ Note is taken that in Nassau and Suffolk Contractors
Association, supra, the Board distinguished between supervisors who were
master mechanics and those occupying positions of executives and high
ranking supervisors. The employer was not held responsible for conduct
of the former group of supervisors, such as voting in a union election.
The Board concluded that it could not be shown that the employer led
employees reasonably to believe the master mechanics acted on behalf of
management.
/31/ Respondent takes the position it did not initiate the voting by
supervisors and had no control over same. I reject its denial of
responsibility for actions by any supervisors apart from whether voting
by these individuals contravened the Statute. The doctrine of
respondent superior applies, and Respondent deducted dues for the
supervisors as Union members who would be expected to vote in Union
elections. The roster of dues deducting members was used as the
eligibility list in the election.
/32/ These individuals are identified in footnotes 16 and 17, supra.