January 27, 1997

MEMORANDUM

TO: Regional Directors

FROM: Joe Swerdzewski, General Counsel

SUBJECT: The Duty of Fair Representation See also the Executive Summary.

This memorandum discusses issues arising from the duty of fair representation under the Federal Service Labor Management Relations Statute for labor organizations serving as exclusive representatives of bargaining unit employees. This memorandum will serve as guidance to the Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges concerning the duty of fair representation. It is being made available to the public to assist individuals, unions and agencies in avoiding these disputes. This guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three member Authority.

Duty of Fair Representation Allegations Increasing in the Federal Sector

The number of unfair labor practice charges filed against labor organizations compared to the total number of unfair labor practice charges filed has increased in the past three years from approximately 3.5 % of the total number of charges filed in Fiscal Year 1993 to 9.2 % of the total number of charges filed in Fiscal Year 1996. At the same time, the number of unfair labor practice charges filed against agencies has decreased over the last three years from approximately 96.5 % of the total number of charges filed in Fiscal Year 1993 to 90.8 % of the total number of charges filed in Fiscal Year 1996. Thus, while the number of charges filed against agencies has dropped in the last three years by 27 %, the number of unfair labor practice charges filed against labor organizations has increased 89 %.

The vast majority of the charges filed against labor organizations allege violations of the duty of fair representation. These types of charges usually involve situations where an employee has a dispute with the agency and claims that the exclusive bargaining representative has failed to fulfill its statutory duty to represent the employee in that dispute. These types of issues normally involve individual employee concerns which adversely affect an employee, rather than the institutional concerns that arise in bargaining disputes, and are often accompanied by strong positions and personal emotions. Duty of fair representation issues also can involve situations where non-union members claim that they are being treated differently from union members by the manner in which the union administers a provision of a collective bargaining agreement or some other condition of employment over which the union has exclusive control.

The legal tests established by the Authority for determining whether the duty of fair representation under the Statute has been violated by a union require a complete examination of the totality of the circumstances. For example, there may be situations where a union commits an unfair labor practice when it treats union members more favorably than non-union members in the bargaining unit. There also may be situations, however, where a union does not commit an unfair labor practice when it treats union members more favorably than non-union members in the bargaining unit. A determination must be made as to whether the matter was one grounded in the union's role as exclusive representative. Further, although a labor organization may have been negligent and/or inept in its dealings on behalf of an employee grievant, that evidence standing alone is normally not sufficient to sustain an unfair labor practice. Moreover, even where a duty of fair representation violation has been found, the case law still is being developed to seek effective remedies. In addition, agencies often become embroiled in these employee/union disputes, not only because the agency may be involved in the underlying dispute with the employee, but because the employee may have requested the agency for assistance in championing the employee's dispute with the union. In view of the increased number of duty of fair representation unfair labor practice charges and the difficult issues that those charges raise, I have decided to issue this guidance memorandum to the Regional Directors, and to make it available to the public, to set forth my views on these important issues.

Issues Addressed In This Memorandum

This memorandum is divided into five parts. Part I discusses the legal tests established by the Authority for determining whether the duty of fair representation has been violated and highlights the types of factors that the Authority has relied upon in making its determinations. Part II explores the types of remedies which the Authority has ordered and which the Regions may seek when a Regional Director determines that the duty of fair representation has been violated. Part III discusses actions which agencies may and may not take when an employee seeks assistance in the employee's dealing with an exclusive representative. Part IV explores when a union may consider only the views of members when taking a position on a condition of employment to present to an agency and when a union must treat members and non-members the same when deciding on what a position to take. Part V provides a discussion of the relationship between the duty of fair representation and the selection of employees for work teams and awarding work teams as a group. An appendix contains a summary of the duty of fair representation cases that the Authority has decided.

PART I. THE DUTY OF FAIR REPRESENTATION UNDER THE STATUTE

A. The Section 7114(a)(1) Duty of Fair Representation

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

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.

The obligation set forth in the second sentence of section 7114(a)(1) of the Statute is commonly referred to as an exclusive representative's duty of fair representation. The Authority has interpreted this section to require an exclusive representative to represent the interests of all bargaining unit employees: 1) without discrimination; and 2) without regard to whether the employee is a dues paying member of the exclusive representative. The duty of fair representation is grounded in the principle that when a union attains the status of exclusive representative, it must use that power to fairly and equally represent all members of the unit.⁽¹⁾

I will first discuss that aspect of the duty of fair representation which involves disparate treatment by a union of a unit employee based on union membership.

B. Authority Test When Employees are Treated Differently Based on Union Membership

1. Legal Test

This aspect of the duty of fair representation usually concerns situations where a non-dues paying bargaining unit employee claims disparate treatment from that received by dues paying union members. In other words, an employee alleges he/she was treated differently just because they were not union members.

The current test to determine if a union has discriminated against a bargaining unit employee based on union membership is set forth in Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA No. 118, 28 FLRA 908 (1987) (Fort Bragg).

Basically, an exclusive representative may not treat non-union members differently than dues paying union members in matters over which the union has exclusive control. Thus, the duty not to discriminate based on union membership attaches only when an employee has no right to choose a representative other than the union to represent the employee in the underlying dispute. In situations where an employee may choose a representative other than the exclusive representative, such as in a proceeding before the Merit Systems Protection Board or in litigation in a U.S. District Court, the exclusive representative may discriminate between dues paying members and non-members and thus may lawfully treat employees differently on the basis of whether or not they pay dues and belong to the union. Since the union in such situations does not have exclusive representation authority, the employees who are not union members may protect their interests by selecting representation from other sources. Thus, the Authority has held that an exclusive representative's responsibilities will be analyzed "in the context of whether or not the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative."⁽²⁾

The same responsibility will not be extended to situations where the union is not acting as the exclusive representative, even if "the union's activities relate to conditions of employment of unit employees."⁽³⁾ This approach is consistent with that taken in the private sector.⁽⁴⁾

Thus, when a charge alleges that an exclusive representative has discriminated against a bargaining unit member because that unit employee does not belong to the union, it must initially be determined whether the activities at issue were undertaken by the labor organization in its role as the exclusive representative.

2. Decisional Analysis

In sum, when faced with an allegation that an exclusive representative has violated its duty of fair representation by discrimination based on union membership, a Regional Director will only issue a complaint, absent settlement, when the evidence supports the following findings:

1). The matter which is the subject of the allegation is grounded in the union's role as the exclusive representative; i.e.,

a). the matter concerns a topic over which the union has exclusive control; and

b). the employee had no other choice for representation other than the union; and

2). the union treated the employee differently from dues paying union members.

3. Factors to Consider⁽⁵⁾

Based on this precedent, the Regions should explore the following factors when determining whether discrimination based on union membership occurred:

1). Whether the matter which is the subject of the allegation is based on the union's role as the exclusive representative.

2). Whether the matter which is the subject of the allegation concerns a topic over which the union has exclusive control.

3). Whether the matter which is the subject of the allegation was established through negotiations and is contained in a collective bargaining agreement.

4). Whether the employee had another choice, other than the union, for representation.

5). Whether the union treated a non-union unit employee differently from dues paying union members.

C. Authority Test for Discrimination When Union Membership Is Not A Factor

1. Legal Test

This aspect of the duty of fair representation usually concerns a situation where either a union member or a non-member in the bargaining unit claims that the union was ineffective in its attempt to represent an employee in a dispute with an agency. The test for this form of discrimination was first set forth in National Federation of Federal Employees, Local 1453, 23 FLRA No. 92, 23 FLRA 686, 691 (1986) (NFFE):

[W[here union membership is not a factor, the standard for determining whether an exclusive representative has breached its duty of fair representation under section 7114(a)(1) is whether the union deliberately and unjustifiably treated one or more bargaining unit employees different from other employees in the unit. That is, the union's action must amount to more than mere negligence or ineptitude, the union must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee.

In these situations, the fact that the union was negligent or inept is insufficient to find an unfair labor practice. Rather, the totality of the circumstances must be examined to determine if the union's conduct constituted the type of impropriety deemed violative of the section 7114(a)(1) duty of fair representation.

2. Decisional Analysis

In sum, when faced with an allegation that an exclusive representative has violated its duty of fair representation when union membership was not a factor, a Regional Director will only issue a complaint, absent settlement, when the evidence supports the following findings:

1). The union acted in an arbitrary manner and/or in bad faith; i.e.,

a). the union's conduct amounted to more than mere negligence or ineptitude, but rather was outside the range of reasonableness, and

b). that treatment was deliberate and unjustified; and

2). the union's action resulted in the treatment of a unit employee different from other unit employees.

3. Factors to Consider

Based on this precedent, the Regions should explore the following factors when determining whether there has been a violation of the duty of fair represention when union membership is not a factor:

1). Whether the union could explain its conduct.

2). Whether the situation left the employee with no venue to obtain a hearing/remedy for the underlying dispute.

3). Whether the union followed or deviated from its past practices in the manner in which it processed the dispute and dealt with the employee.

D. Requirement That The Matter Be Grounded In The Union's Role As Exclusive Representative When There Is Discrimination And Union Membership Is Not A Factor.

As noted above, when discussing the duty of fair representation when union membership is alleged to be a consideration, the Authority requires the union's conduct to be grounded in the union's role as exclusive representative. Thus, where an employee has other choices for representation, the union lawfully may treat members different from non-members with respect to representation by the union. For example, the union may offer representation to members, and not to non-members, in proceedings before the Merit System Protection Board, and may charge members different fees for representation in a U.S. District Court in a matter under another Statute, such as the Fair Labor Standards Act.

The Authority, however, has never found that a union may act in an arbitrary and capricious manner when it undertakes to represent an employee in a situation involving a condition of employment where the union was under no obligation to represent the employee because the matter was not grounded in the union's role as exclusive representative. For example, the union undertakes to represent an employee before the Merit System Protection Board but engages in conduct that meets the NFFE standard of arbitrariness and bad faith.

In my view, the Authority should be afforded an opportunity to decide if a union violates its duty of fair representation when it undertakes to represent an employee in a matter concerning a condition of employment where it had no duty to do so because the employee had other choices for representation, but the union's conduct in performing that service amounts to discrimination under the standard set forth in NFFE. Indeed, in a recent decision the Authority has indicated in another context that once a union undertakes representational activity, the union serves as the exclusive representative and not as a personal representative.⁽⁶⁾ Under this theory, if the union is entitled to the benefits as the exclusive representation, such as the right to information under section 7114(b)(4) of the Statute, the union may also be required to adhere to the standard set forth in NFFE concerning the duty of fair representation when membership is not a consideration.

To afford the Authority with an opportunity to clarify this area of the law, the Regions should initially determine in all duty of fair representation cases where union membership is not a consideration whether the conduct violates the NFFE standard. If the Region makes such a finding, but further determines that the matter at issue is not grounded in the union's role of exclusive representative but nonetheless concerns a condition of employment, the Regions should submit the case for case handling advice.

PART II. Remedies for Duty of Fair Representation Violations

A. Objectives That An Unfair Labor Practice Remedy Should Serve.

Under sections 7105(g)(3) and 7118(a)(7)(D) the Authority has a broad range of remedial powers. These powers, however, are not without limits.⁽⁷⁾ In F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 149, 160 (1996)(F.E. Warren AFB), the Authority set forth the broad objectives that an unfair labor practice remedy should serve. The Authority concluded that remedies for unfair labor practices should:

1) Be designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.

2) Effectuate the policies of the Statute.

3) Contribute to the deterrence of future violative conduct.

4) Not be contrary to law or public policy.

Accordingly, any remedy sought in a duty of fair representation unfair labor practice case should be consistent with these stated objectives.

B. Office Of The General Counsel Guidance When The Duty Of Fair Representation Violation Concerns A Matter Other Than A Dispute With An Agency Which Would Have Been Decided Under The Negotiated Grievance Procedure But For The Duty Of Fair Representation Violation

Most decisions concerning the violation of the duty of fair representation based on union membership concern situations where the union has treated unit employees who are union members more favorably than unit employees who are not union members in matters relating to benefits and settlements negotiated by the union. Duty of fair representation violations when union membership is not a consideration also sometimes involve negotiated benefits and negotiated settlements.⁽⁸⁾ In addition to the traditional cease and desist orders and remedial postings, the Regions should continue to seek orders requiring unions that violate their duty of fair representation in these situations to make the affected employees whole as if there had been no violation. In essence, a union's violation of the duty of fair representation based on union membership constitutes discrimination for an employee's election not to engage in protected activity, a section 7102 right.

I am of the view that these types of duty of fair representation violations should be treated for remedy purposes no different than the treatment afforded agency violations based on discrimination for engaging in protected union activities.⁽⁹⁾ Discrimination for reasons other than union membership that concern benefits in conditions of employments similarly, in my view, requires that employees be made whole. This type of remedy is consistent with the objectives outlined by the Authority in F.E. Warren AFB. This remedy places the victim, the non-member bargaining unit employee, in the position the employee would have been had the union not treated the employee disparately. By undoing the effects of the unfair labor practice, the remedy effectuates the policies of the Statute and contributes to the deterrence of future violative conduct. Moreover, such a remedy is not contrary to any law or public policy. Thus, the Regions should continue to seek status quo and make-whole remedies in those duty of fair representation situations where, but for the violation, unit employees would have been treated the same as unit employees and would have received benefits concerning conditions of employment.

C. Office of the General Counsel Guidance When the Duty of Fair Representation Violation Concerns a Matter Which Would Have Been Decided Under The Negotiated Grievance Procedure But For The Duty of Fair Representation Violation By The Union.

1. Types of Disputes

These duty of fair representation violations typically involve situations where the union does not properly represent an employee in a dispute with the agency. The union's violation has precluded the employee(s) from having the underlying dispute with the agency decided under the negotiated grievance procedure. These type of situations can arise from discrimination based on union membership as well as when union membership is not a factor.

In these types of situations, the dispute between the employee and the agency is based on a contractual right and seldom concerns statutory rights that may be pursued by the employee against the agency through the unfair labor practice process. As such, the union's violation often involves either the failure to file a timely grievance or failure to properly process a grievance. When the result of the union's violation of its duty of fair representation leaves the employee with no process to pursue the dispute with the agency because the grievance procedure cannot be invoked because of timeliness or because it already has been improperly pursued, the issue becomes what remedy for the duty of fair representation is appropriate.

2. Initially, The Union Should Be Ordered To Seek To Process The Grievance

In such situations, the Regions should continue to seek an order requiring the union to request the agency to process a grievance, even if untimely. If the agency agrees, the union is required to process the grievance in accordance with its duty of fair representation. The employee is therefore placed in the same position as if the violation had not occurred since the employee's dispute with the agency will be processed as it would have been processed absent the violation. This is similar to those cases where an agency discriminates against an employee for engaging in protected activity.

3. When The Merits of the Grievance Cannot Be Decided Under the Negotiated Grievance Procedure

However, if the agency refuses to process an untimely grievance or to reprocess a grievance, the issue remains as to how to place the affected employee in the same situation as if there had been no violation. As noted earlier in this memorandum, the finding of a violation of the duty of fair representation does not require a finding that the underlying dispute which motivated the employee to seek union assistance was meritorious. However, the issue of appropriate remedy in these type of circumstances where the grievance cannot be processed does require an exploration of what effect, if any, should be given to whether the employee's dispute with the agency was meritorious.

a. The Impact of the Merits of the Underlying Grievance

The Authority has addressed this issue in only a few early cases,⁽¹⁰⁾ all of which involved a known monetary sum (assuming the grievance was meritorious) and none of which contained a complete analysis of the remedy issue. Thus, "Authority case law on this issue is largely undeveloped."⁽¹¹⁾

An examination of these decisions and of similar situations which have arisen under the National Labor Relations Act (NLRA)⁽¹²⁾ reveals that the merits of the underlying dispute between the employee and the agency must be afforded a forum for resolution, and that the forum should be the unfair labor practice procedure.⁽¹³⁾ Thus, in my view, the union should be given the opportunity to avoid a make-whole order as a duty of fair representation remedy by being provided the opportunity to contest whether the underlying dispute between the employee and the agency was meritorious. This approach is consistent with that utilized in the private sector. Accordingly, the Authority, in determining the appropriate remedy for a duty of fair representation violation, should decide if the underlying dispute was meritorious. Thus, contrary to earlier Authority precedent,

I am of the view that the merits of the underlying grievance must be addressed prior to any make-whole order against the union.

b. The Burden of Proof on the Merits of the Underlying Grievance

The issue remains, however, whether the union should carry the burden to establish that the underlying dispute was non-meritorious or whether the General Counsel should bear the burden of establishing that the underlying dispute had merit. Thus, there are two distinct remedial approaches when a violation of the duty of fair representation has been found and the agency does not accede to the union's request to process the grievance:

Option 1: The burden is on the union to establish, either during the investigation, at the unfair labor practice hearing or in subsequent compliance proceedings, that the underlying grievance had no merit. Absent this determination, the union would be required to make the employee whole; or

Option 2: The burden is on the General Counsel to establish that the underlying grievance was meritorious in order to obtain back pay from a union for violating its duty of fair representation.

Under either view above, regardless of whether the General Counsel bears the burden of proving that the grievance was meritorious or the respondent union bears the burden of proving that the grievance was not meritorious, the Authority would still have to make the determination as to whether the evidence establishes that the underlying grievance had merit under the contract prior to issuing a make whole order. Thus, the only issue is whether the General Counsel or the respondent union should bear that burden.

In the private sector, the NLRB currently follows the first approach. In Mack-Wayne, the NLRB modified its provisional make-whole remedy and allowed the union the opportunity to avoid a make-whole order by establishing that the underlying dispute had no merit. The NLRB, however, places that burden on the union (not on the General Counsel) and follows this decisional analysis:

1). After establishing a duty of fair representation violation, the General Counsel has the initial burden of establishing a nexus between the union's unlawful conduct and the remedy; i.e., that the employee's grievance was not clearly frivolous.

2). If the General Counsel establishes that nexus, the burden shifts to the union to establish that the grievance was not meritorious. The union has the option of litigating the merits of the grievance at either the unfair labor practice hearing or at the compliance stage.

The Board has continued to follow the rationale of Mack-Wayne.⁽¹⁴⁾

c. Office of the General Counsel Guidance

I am of the view that the second approach is most consistent with the remedial purposes and polices of the Statute as interpreted by the Authority. I agree that the merit of the underlying grievance is paramount prior to seeking a make-whole order from the union. However, I am of the view that the better approach is for the General Counsel not to seek such a remedy unless the evidence establishes the merits of that underlying grievance. To require the union to make employees whole when it has not been established that the unfair labor practice was the direct reason why those employees had suffered a loss would not be consistent with those remedial objectives outlined by the Authority in F.E. Warren AFB. The alternative approach (allowing employees to be made whole without establishing that the underlying grievance was meritorious) would not be consistent with the Authority goal of recreating the conditions and relationships that would have been in existence had there been no unfair labor practice. Rather, that appraoch would open the potential for speculative damages since the failure of the union to establish that the grievance did not have merit is quite different from requiring the General Counsel to establish that the grievance had merit. This shifting of the burden of proof, in my view, does not effectuate the policies of the Statute. Although it may contribute to the deterrence of future violative conduct, it would be placing a heavier burden on the respondent union than is placed on other respondents in other unfair labor practice situations. For example, in determining the appropriate remedy in cases alleging discrimination based on protected activity or unilateral changes, the burden is on the General Counsel to establish that the requirements of the Back Pay Act have been met.⁽¹⁵⁾ Thus, in my view, the Regions should seek a make-whole order from a union which has violated its duty of fair representation by failing to properly process a grievance only when it can be established that the underlying grievance was meritorious. I find this approach more consistent with the objectives that an unfair labor practice should serve and for these additional reasons:

1). The primary remedial goal is to return the parties to their pre-unfair labor practice posture and to have the employee's grievance considered pursuant to the agreed-upon procedure. In that procedure, the burden is on the grievant to establish the merit of the claim. If this process is not available, the unfair labor practice procedure is the only procedure to make that determination. In my view, the General Counsel should bear that burden just as the grievant bears that burden in the negotiated grievance procedure to prove the merit of the underlying grievance prior to a make whole and back pay order.⁽¹⁶⁾

2). The determination as to which party, the General Counsel or the union, bears the burden does not alter the fact that the Authority ultimately will decide the merit of the underlying dispute. Thus, even under the first approach, the Regional Directors (on behalf of the General Counsel) will be evaluating the merits of the grievance in deciding whether to seek a make-whole order, and the Authority will be making the ultimate determination when fashioning the remedy. Requiring the union to bear the burden does not disengage the Regions or the Authority from involvement in interpreting contracts.⁽¹⁷⁾

3). Seeking a make-whole remedy without establishing that the grievance is meritorious, in essence, could place the employee in a better position than if the union had fulfilled its duty of fair representation. In other words, the employee would receive a remedy for the underlying grievance which may have been determined to be non-meritorious had the union properly processed the matter. In my view, this is inconsistent with the remedial purposes of the Statute as pronounced by the Authority.

4). This approach is consistent with that taken by the Authority in analogous situations under other provisions of the Statute. For example, the Authority will not order a make-whole remedy for a violation of the right to representation at an investigatory examination under section 7114(a)(2)(B) of the Statute merely because an employee was disciplined as a result of information gained at the unlawful examination.⁽¹⁸⁾

5). This approach also is consistent with that taken by the Federal courts in an action under section 301 of the Labor Management Relations Act. In those actions, the burden is on the employee to establish that the grievance is meritorious in order to obtain backpay from a union for failing to properly represent the grievant.⁽¹⁹⁾ This approach also is consistent with the circuit courts which have addressed this issue under the NLRA.⁽²⁰⁾

6). During the investigation of the charge, the Regions are capable of adducing evidence concerning the appropriate remedy in a duty of fair representation case. In F.E. Warren AFB, the Authority indicated that it is the General Counsel's responsibility to produce evidence as to why requested remedies meet the broad objectives that an unfair labor practice remedy should serve. I see no reason why remedies for duty of fair representation violations should be treated differently than remedies for other types of unfair labor practices.

PART III. When Non-Members Views Must Be Considered By The Union

A. Situations When The Union Has Not Been Given The Authority To Establish A Condition Of Employment

An exclusive representative need not consider the views of non-member bargaining unit employees when determining the position the union will take in negotiations with an agency.⁽²¹⁾ The union may exclude non-members from having any input in the formulation of the union proposals.⁽²²⁾ The formulation of bargaining proposals, standing alone, does not decide what will be the ultimate condition of employment. The union must still negotiate its proposals with the agency. The decision on what the union proposal will be does not settle what the ultimate condition of employment will be.⁽²³⁾ Thus, an exclusive representative may lawfully exclude non-members from participation in votes and discussions formulating bargaining proposals.

B. Situations When The Union Has Been Given The Authority By The Agency To Establish A Condition Of Employment

However, a union may not exclude non-members from participating in decisions in situations where the union has been given the authority to establish that condition of employment. For example, if an agency delegates to the union the decision-making authority over a condition of employment, the union must treat members and non-members the same in determining the establishment of that condition of employment. Thus, if the union decides to poll employees to determine that condition of employment, the union must poll all unit employees, including non-members.⁽²⁴⁾

The key factor, therefore, is whether the union has the discretion and authority to determine the condition of employment without further negotiation with the agency. For example, if the parties have negotiated a contract clause which allows the union to establish a condition of employment without further negotiations with the agency, the union must treat all unit employees the same when formulating its decision. Thus, if the union decides to conduct a poll, all employees must be polled and non-members responses must be treated equally. If the union decides to conduct a meeting, all employees must be allowed to attend the meeting and participate to the same extent regardless of their union membership.⁽²⁵⁾ On the other hand, if the union engages in negotiations with the agency to establish the condition of employment, the union need not consider non-members' views.⁽²⁶⁾

PART IV. AGENCY DISCUSSIONS WITH EMPLOYEES ON DUTY OF FAIR REPRESENTATION MATTERS

A. Standards Governing Agency Actions When An Employee Inquires About Duty Of Fair Representation Matters

In my view, an agency and its representatives' conduct concerning a dispute between an employee and an exclusive representative is governed by the same principles and precedent that govern all agency actions under the Statute. Thus, an agency may not interfere with, restrain or coerce an employee in the exercise of the section 7102 right to form, join or assist a labor organization or to refrain from such activity. Any challenged agency conduct should be evaluated under the same tests currently used to determine if an agency violated section 7116(a)(1) of the Statute.⁽²⁷⁾

Just as an agency must remain neutral during an election campaign by a labor organization seeking exclusive recognition or by a group of employees seeking the decertification of an exclusive representative, an agency must remain neutral in any dispute between an employee and the exclusive representative.⁽²⁸⁾ The failure to do so would be an unfair labor practice.⁽²⁹⁾

B. Permitted and Prohibited Agency Actions When An Employee Inquires About Duty Of Fair Representation Matters

Based on these standards, in my view, an agency would commit an unfair labor practice if it encouraged employees to file duty of fair representation unfair labor practice charges against an exclusive representative or presented to an employee an evaluation of the merits of an employee's dispute against the exclusive representative. These actions are no different than if an agency encouraged an employee to vote against exclusive representation or presented its views to unit employees on which slate of union candidates for office the agency believes would best fulfill the union's representational responsibilities.

Agency officials, however, upon inquiry from an employee, should be permitted to direct that employee to the Authority's Regional Offices to obtain information about the duty of fair representation and filing procedures. Similarly, an agency should treat distribution of blank unfair labor practice charge forms against a labor organization (CO charge forms) in the same manner that it distributes blank unfair labor practice charge forms against the agency itself (CA charge forms). Thus, in my view, an agency that disparately provides CO charge forms, but does not provide CA charge forms, interferes with section 7102 rights. Similarly, an agency that provides procedural advice to employees about filing a CO charge but does not provide similar advice to employees about filing a CA charge, would commit an unfair labor practice.

C. Agencies May File Unfair Labor Practice Charges Alleging a Violation of the Duty of Fair Representation

An agency may file an unfair labor practice charge against a labor organization alleging a violation of the duty of fair representation. Section 7118(a)(1) of the Statute provides that any "person" may file a charge alleging a violation of the Statute. Section 7103(a)(1) defines "person" as an individual, labor organization or agency. The individual filing an unfair labor practice charge need not be the alleged aggrieved party.⁽³⁰⁾ For example, a charge may be filed by any person, even, for example, if the person signing the charge against an agency is a manager.⁽³¹⁾ Thus, an agency has standing to file an unfair labor practice charge against a union for the alleged violation of an individual's rights. Indeed, many of the cases discussed in Part II concerning union discrimination on the basis of union membership were filed by agencies.

A person or party filing a charge, however, must be prepared to fully participate in the Region's investigation of that charge, including the presentation of witnesses, documentation and other evidence to substantiate the claims in the charge and the remedy sought. Moreover, an agency that attempts to present unit employees as witnesses to support a duty of fair representation charge filed against the exclusive representative by the agency is governed by the doctrine requiring the agency not to interfere with, restrain or coerce an employee in the exercise of protected rights. For example, an agency that files a charge alleging a duty of fair representation violation against a labor organization and then takes steps to seek out and convince employees to provide evidence against the labor organization, in my view, would commit an unfair labor practice. An agency, however, could present evidence within its control to support its charge without soliciting assistance from unit employees.

PART V. The Duty of Fair Representation and Work Groups

On August 8, 1995, I issued a memorandum to the Regional Directors, available to the public, entitled "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employee for Work Groups." The guidance memorandum discussed the parties' rights and obligations under the Statute related to employee-management work groups dedicated to advancing an agency's mission and improving customer service. The memorandum focused on the legal issues surrounding "what" the work group is doing and "who" participates in the group.

In particular, a portion of that memorandum discussed issues concerning criteria for selecting employees to participate on work groups, the capacity in which those employees serve (for example, as union representatives or as employees who are assigned work) and the consequences which flow from those designations (such as awards and appraisals). The next portion of this memorandum addresses the relationship between these work groups and the duty of fair representation.

A. Union Representatives on a Work Group Owe a Duty of Fair Representation

When employees are selected to work groups by the exclusive representative and serve as union representatives on those work group, those union representatives owe a duty of fair representation to the bargaining unit. As discussed in the work group guidance, the work groups serve as an extension of the collective bargaining relationship and an alternative means of communication between the union as the exclusive representative and the agency. Since the employees are serving as union representatives, I am of the view that the statutory duty of fair representation attaches to their activities, just as if those representatives were negotiating a contract or processing a grievance. Although the union, as the exclusive representative, remains empowered to select its own representatives and may chose to only select union members, although not required to do so, those representatives must not violate the duty of fair representation while representing the interest of the entire bargaining unit.⁽³²⁾

B. Evaluating and Awarding Union Representatives on a Work Group Based on Individual Performance.

In the work group guidance memorandum, I also stated my view that union representatives may not be disciplined for their performance as a union representative of the union on a work group. Similarly, I stated my view that union representatives may not be evaluated for their performance as a representative on a work group, either favorably or adversely. Since union representatives cannot be evaluated on their performance, I further stated my view that union representatives may not be rewarded for their participation on the work group.⁽³³⁾ Since performance awards are based on an evaluation of an employee's individual performance,⁽³⁴⁾ and employees serving as union representatives may not be evaluated on their individual performance as union representatives, for the reasons and legal analysis set forth in the work group guidance memorandum, I continue to be of the view that rewarding, disciplining or evaluating those union representatives' individual participation on a work group would be an unfair labor practice.

C. Rewarding Work Groups, Which Includes Union Representatives, Based on Group Performance

The discussion in the work group guidance memorandum referred to above focused on awards based on individual group members' performance. Since employees who serve as union representatives cannot be evaluated positively or negatively on their contribution to the work group since they're serving as union representatives, any award for that participation would be unlawful.

The team guidance memorandum, however, also provided the parties with models for alternatives methods to establish and implement work groups. One model discussed provides for union representatives selected by the union (who may be union or non-union members), agency representatives selected by the agency, and other bargaining unit employees selected by the agency, with or without union input, where union membership was not a factor in the selection process. These employees would serve on the work group pursuant to the assignment of work.

The issue has arisen as to whether it also would be an unfair labor practice if this type of work group were to receive an award based on the groups' collective performance, without reference to the performance of individual members. In such circumstances, the employee serving as a union representative would not be rewarded for his/her contribution, but rather would be rewarded for being part of a work group.⁽³⁵⁾ This particular circumstance was not addressed in the work group guidance memo.

It could be argued that since the union representative's individual performance is not being evaluated, and since employees not selected to serve as union representatives also have an opportunity to serve on these work groups and thus to qualify for a group award (as well as individual awards since these assigned employees may be evaluated and rewarded pursuant to the assignment of work), the issuance of a group award pursuant to Government-wide regulations would not violate the Statute's prohibitions of interfering with protected activity or the right to refrain from protected activity. On the other hand, it also could be argued that union representatives are still serving in that union capacity and are still being rewarded for their contribution to the group in that representational capacity. Since this particular type of situation raises novel issues which were not addressed in the work team guidance memorandum, the Regional Directors are instructed to submit cases for advice when they make the following determinations:

1). A work group receives an award for the groups' work product as provided for under Government-wide regulations.

2). The award is given to all members of the work group without recognition for individual contributions.

3). There are employees on the work group serving in the role as union representatives who had been selected by the union.

4). There also are other bargaining unit employees in the work group who do not serve as union representatives and whose union membership was not a factor in their selection for the work group.

Many of the issues concerning an exclusive representative's duty of fair representation have yet to be explored under the Statute. Please contact the Office of the General Counsel if any issues arise concerning the duty of fair representation or if there are any questions concerning the views set forth in this guidance memorandum.

These are some examples of cases where the Authority has determined whether or not an exclusive representative violated its duty of fair representation by treating non-union unit employees differently from unit employees that were dues paying union members:⁽³⁶⁾

1).

a). Case: Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina (Fort Bragg Department of Defense Dependents Schools, Fort Bragg, North Carolina), 28 FLRA No. 118, 28 FLRA 908 (1987).

b). Conduct: The union required non-dues paying bargaining unit employees to pay a fee to be included in a lawsuit concerning the employment status of unit employees.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The union's representational activities on behalf of the employees were not grounded in the union's authority to act as exclusive representative.

- The union was not acting as the exclusive representative even though the union's activities related to conditions of employment of unit employees.

- Non-dues paying members of the bargaining unit could have retained counsel and filed a similar lawsuit.

- The lawsuit was not related to enforcement of the parties' collective bargaining agreement.

2).

a). Case: American Federation of Government Employees, AFL-CIO (Social Security Administration), 30 FLRA No. 9, 30 FLRA 35 (1987).

b). Conduct: The union charged non-union unit employees higher fees than union members to participate in a civil action law suit seeking night differential pay.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The institution of the lawsuit was not integrally related to a pending grievance.

- The civil action was a process available to all employees and was not a process in the sole control of the union.

- The union's undertaking was a benefit of union membership and not a negotiated entitlement.

3).

a). Case: Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico (Bette L. Benber, Elizabeth Pawson and Antoinette Torres De Perez), 36 FLRA No. 79, 36 FLRA 776 (1990).

b). Conduct: The union treated members and non-members differently in administering an insurance plan for dental/optical benefits which it administered under the terms of the collective bargaining agreement by requiring non-members to pay a $60 yearly administrative fee to participate.

c). Result: Duty of fair representation violation.

d). Critical factors:

- The dental/optical plan was arrived at through collective bargaining.

- The union's authority to administer the plan also was arrived at through collective bargaining.

- The plan constituted a contractual condition of employment applicable to all unit employees.

e). Remedy: The union was required to cease the requirement that non-members pay an administrative fee, refund all fees collected from non-members, allow non-members to participate in the plan in the same manner as members, and prepare and distribute to all unit employees a pamphlet explaining their rights to participate in the plan and have administrative fees refunded.

4).

a). Case: Department of the Army, Watervliet Arsenal, Watervliet, New York , 39 FLRA No. 24, 39 FLRA 318 (1986).

b). Conduct: The union negotiated an agreement that provided leave procedures for a union-sponsored asbestos testing program where unit employees who were union members could be tested on excused absences while unit employees who were not dues paying members could only participate during off-duty hours.

c). Result: Duty of fair representation violation. The activity also was found to have violated the Statute.

d). Critical factors: The process was a negotiated condition of employment applicable to all unit employees.

e). Remedy: The activity and the union were ordered to allow non-members to participate in a make-up testing program on excused absence. The activity was further ordered to restore any leave used to attend the testing.

5).

a). Case: U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

b). Conduct: The union distributed the settlement of a grievance on environmental differential pay that favored union officers.

c). Result: Duty of fair representation violation.

The activity also violated the Statute by its actions in connection with the distribution of environmental differential pay.

d). Critical factors: The settlement authorized the union to divide the payments.

e). Remedy: The union and the activity were required to recalculate together the distributions and were jointly and severally liable for making whole those employees who suffered a reduction in environmental differential pay as a result of the unlawful distribution.

6).

a). Case: American Federation of Government Employees, Local 1857, AFL-CIO (Sacramento Air Logistics Center, North Highland, California) (Eloise F. Holdahl), 46 FLRA No. 81, 46 FLRA 904 (1992).

b). Conduct: The union refused to represent a unit employee in a proposed disciplinary action because the employee was not a member of the union.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The union was not the only source of the employee's representation since an employee faced with a proposed disciplinary action is entitled to a representative of choice.

- There was no contractual obligation for the union to represent all unit employees regarding proposed disciplinary actions.

7).

a). Case: National Federation of Federal Employees, Local 1827 (Catherine Bratton): 49 FLRA No. 71, 49 FLRA 738 (1994).

b). Conduct: Non-union members of the bargaining unit were not permitted to participate in a poll conducted by the union concerning the method of determining seniority to calculate seniority-based benefits in a situation when the contract granted the union final decisional authority.

c). Result: Duty of fair representation violation.

d). Critical factors:

- The union was granted final authority over the decision by the contract.

- The matter (seniority) concerned a condition of employment and not a benefit of union membership.

e). Remedy: The union was required to request that the activity reinstate the method of calculating seniority in existence before the referendum. The union also was ordered to make whole any unit employees for any losses sustained because of the new basis for calculating seniority. If the union decided to conduct a similar poll, it was required to poll all unit employees regardless of their union membership.

These are some examples of cases where the Authority has determined whether an exclusive representative violated its duty of fair representation by treating employees in a discriminatory manner:

1).

a). Case: National Federation of Federal Employees, Local 1453 (Kenneth A. Crawford), 23 FLRA No. 92, 23 FLRA 686 (1986).

b). Conduct: The union failed to notify an employee that a grievance over a proposed suspension had been returned because it was filed at the wrong step and the union took no further action to renew the grievance.

c). Result: No duty of fair representation violation.

d). Critical factors: Although the employee lost the opportunity to grieve, the union's action constituted mere negligence or ineptitude.

2).

a). Case: National Federation of Federal Employees, Washington, D.C. (Henry Thompson), 24 FLRA No. 37, 24 FLRA 320 (1986).

b). Conduct: The union failed to represent an employee at a Merit System Protection Board hearing.

c). Result: No duty of fair representation violation.

d). Critical factors: The union's conduct constituted mere negligence or miscommunication.

e). Note: This case was decided before the Authority in Fort Bragg concluded that there was no duty of fair representation unless the matter was grounded in the union's role as exclusive representative.

3).

a). Case: International Association of Machinists and Aerospace Workers, Local 39, AFL-CIO (Roy G. Evans), 24 FLRA No. 39, 24 FLRA 352, 353 (1986).

b). Conduct: The union failed to file a grievance over a suspension while misleading the employee to believe that the union was going to file a grievance.

c). Result: Violation of the duty of fair representation.

d). Critical factors:

- The union intentionally failed to file the grievance.

- The failure to file the grievance resulted in the loss of the employee's right to challenge the suspension.

e). Remedy: The union was ordered to seek permission from the agency to file a late grievance. If the request was denied by the agency, the union was ordered to pay the employee the earnings lost for the suspension he sought to grieve.

4).

a). Case: American Federation of Government Employees, Local 1857, AFL-CIO (John M. Neill), 28 FLRA No. 86, 28 FLRA 677 (1987).

b). Conduct: The union deleted the name of an employee from a list of employees eligible for back pay under a settlement agreement.

c). Result: Violation of the duty of fair representation.

d). Critical factors: The union relied on the reports of several employees who "bore animosity" toward the employee in removing the name from the list.

e). Remedy: The union was ordered to make the employee whole if management would not agree to include the employee in the settlement.

5).

a). Case: American Federation of Government Employees, Local 3529, AFL-CIO (Jerry Cyncynatus), 31 FLRA No. 108, 31 FLRA 1208 (1988).

b). Conduct: The union filed an untimely grievance over a suspension after assuring the employee that it would file a grievance.

c). Result: No duty of fair representation violation.

d). Critical factors: The union explained its failure to timely file a grievance due to the union president's inexperience and absence from work.

6).

a). Case: American Federation of Government Employees, Local 1457, AFL-CIO (Gwen Horn), 43 FLRA No. 50, 43 FLRA 575 (1991).

b). Conduct: The union failed to file grievances.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The employee did not made a specific request for the union to file a grievance, nor did the union promise to file a grievance.

- The union did make an effort to resolve the employee's problem, although unsuccessfully.

7).

a). Case: U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

b). Conduct: The union's distribution of the settlement of a grievance on environmental differential pay contained numerous unexplained discrepancies.

c). Result: Violation of the duty of fair representation. The activity also violated the Statute by its actions in connection with the distribution of the pay.

d). Critical factors:

- The settlement authorized the union to divide the payments.

- The discrepancies were unexplained by the union.

- The union's actions were so far outside the wide range of reasonableness as to be irrational.

e). Remedy: The union and the activity were required to recalculate together the distributions and were jointly and severally liable for making whole those employees whose suffered a reduction in environmental differential pay as a result of the unlawful distribution.

1. American Federation of Government Employees v. FLRA, 812 F.2d 1326, 1328, 124 LRRM 3220 (10th Cir. 1987)("the union's duty to represent all employees within its bargaining unit is coterminous with the union's power as exclusive representative").

2. Fort Bragg, 28 FLRA at 918.

3. Fort Bragg, 28 FLRA at 918.

4. See National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) reversing, National Treasury Employees Union Chapter 121, 16 FLRA No. 102, 16 FLRA 717 (1984)(the union's policy of posting and implementing a policy of denying attorney representation to non-member employees while providing such representation to members involved in removal actions at the Merit systems Protection Board was not a violation of the duty of fair representation).

5. The Authority also has found that unions have interfered with, restrained or coerced employees in the exercise of their section 7102 right not to support a union in violation of section 7116(b)(1) of the Statute based on union statements that non-union members will not receive the same treatment as union members in matters grounded in the union's exclusive representative status: See American Federation of Government Employees, Local 916, AFL-CIO (Donna M. Deguisti), 28 FLRA No. 129, 28 FLRA 988 (1987)(section 7116(b)(1) violation by creating the impression that nonmember unit employees seeking union assistance would be required to pay dues to the union as a precondition to receiving representation); American Federation of Government Employees, Local 987 (U.S. Department of the Air Force, Warner Robbins Air Logistics, Robins Air Force Base, Georgia), 35 FLRA No. 64, 35 FLRA 563 (1990)(section 7116(b)(1) violation when the union threatened that an employee would not receive full representation in the processing of her grievance unless she joined the union); and American Federation of Government Employees, Local 987, Warner Robins, Georgia (Warner Robbins Air Logistics Center, Robins Air Force Base, Georgia), 35 FLRA No. 79, 35 FLRA 720 (1990)(section 7116(b)(1) violation when the union published an article in the union newsletter stating that unit employees who were not union members and who wanted grievances about a recently publicized overtime pay issue handled promptly should join the union).

6. U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA No. 119, 51 FLRA 1467 (1996)("that a union lawfully could refuse representation does not mean that, if the union undertakes representation, the union is not acting as the exclusive representative and, as such, may not avail itself of its rights under the Statute").

7. See e.g.,Immigration and Naturalization Service, Los Angeles Sistrict, Los Angeles, California, 52 FLRA No. 11, 52 FLRA 103 (1996)(the Authority may not issue a remedy requiring the expenditure of Government money absent an express waiver of sovereign immunity).

8. See U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

9. Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA No. 2, 51 FLRA 7 (1996)(the Authority will order a make-whole remedy when there is discrimination in connection with conditions of employment based on unlawful consideration of protected activity and the respondent has not shown that it would have taken the same action in the absence of such consideration).

10. Service Employees International Union, Local 556, AFL-CIO (Patsy K. Paige), 17 FLRA No. 115, 17 FLRA 862, 863 (1985) (back pay remedy not warranted where "the weight of the evidence does not indicate that intervention by the Union would have resulted in the substantive relief sought by the grievant;" rather, the union was ordered to provide the employees with representation in seeking a waiver of the time limits to pursue their claims); and International Association of Machinists and Aerospace Workers, Local 39, AFL-CIO (Roy G. Evans), 24 FLRA No. 39, 24 FLRA 352 (1986)(the union was ordered to reimburse the potential grievant for lost wages for the five-day suspension if the agency refused to grant permission to file a late grievance) and American Federation of Government Employees, Local 1857, AFL-CIO (John M. Neill), 28 FLRA No. 86, 28 FLRA 677 (1987)(the union was ordered to pay an employee the compensation the employee would have received under the terms of a grievance settlement if the agency refused to include the employee in the overtimed payout).

11. U.S. Army Armament Research Development and Engineering Center, Picatinny Arsenal, New Jersey, 52 FLRA No. 50 (1996)(the Authority noted that case law was undeveloped concerning whether the Statute's timeliness requirements were jurisdictional or a statue of limitations which can be waived).

12. In the absence of specific precedent under the Statute, the Authority has looked to private sector law for guidance. U.S. Geological Survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA No. 76, 50 FLRA 548 (1996)(U.S. Geological Survey)(the Authority examined private sector precedent on the effect of the temporary status of unlawfully discharged employees on their reinstatement and backpay).

13. Faced with criticism from the circuit courts, the National Labor Relations Board (NLRB) abandoned its earlier views and provided for a process where the union could avoid a make-whole remedy by establishing that the underlying dispute had no merit. Rubber Workers Local 250 (Mack-Wayne Closures), 290 NLRB No. 90, 129 LRRM 1129 (1988)(Mack-Wayne). The Authority decisions cited in footnote 10 above, were issued prior to the NLRB's change in position.

14. See e.g., SEIU, Local 87 (Cervetto Building Maintenance), 309 NLRB 817, 143 LRRM 1099 (1992) and Letter Carriers Local 233 (U.S. Postal Service), 311 NLRB No. 59, 145 LRRM 1027 (1993). Some courts, however have continued to refuse to endorse this approach. See Mail Handlers Local 305 v. NLRB, 929 F.2d 125, 136 LRRM 2987 (4th Cir. 1991). Moreover, it is unclear whether the current NLRB would continue to follow the Mack-Wayne rule. See Lake Pilots Association, Inc., 320 NLRB No. 42, 152 LRRM 1186 (1995), at footnote 22 (no need under the circumstances to order a provisional make-whole order, but the validity of Mack-Wayne was questioned).

15. See e.g.,U.S. Geological Survey, 50 FLRA at 552.

16. In discipline grievances, absent situations involving moral turpitude and criminal intent, arbitrators often will look merely at whether the grievant is guilty and whether the offense justifies the discipline. Similarly, in non-discipline grievances, the grievant normally bears the burden of proving a contract violation. See Elkouri & Elkouri, How Arbitration Works,4th ed. 1985), at 324 and Fairweather, Practice and Procedure in Labor Arbitration (3rd ed. 1991) at 191-204.

17. The Regions currently interpret contracts, in the same manner as arbitrators, when a contract is raised by a charged party or respondent as a defense to an unfair labor practice. Internal Revenue Service, Washington, D.C. 47 FLRA No. 193, 47 FLRA 1091 (1993).

18. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA No. 17, 32 FLRA 222 (1988)(the Authority will not order a make-whole remedy when the only violation is the denial of an employee's request for union representation at an investigatory examination and disciplinary action taken relates solely to employee misconduct independent of the examination itself).

19. Hines v. Anchor Motor Freight, 424 U.S. 554, 570-571, 91 LRRM 2481 (1976). There is no private cause of action for a violation of the duty of fair representation in the Federal sector. Karahalios v. National Federation of Federal Employees, 489 U.S. 527, 130 LRRM 2737 (1989).

20. See San Francisco Web Pressmen & Platemakers Union No. 4 v. NLRB, 794 F.2d 420, 423-424, 122 LRRM 3000 (9th Cir. 1986), United Steelworkers of America v. NLRB, 692 F.2d 1052, 1057, 11 LRRM 3127 (7th Cir. 1982) and NLRB v. Local 485, International Union of Electrical, Radio & Machine Workers, 454 F.2d 17, 23, 79 LRRM 2278 (2d Cir. 1972).

21. See Professional Air Traffic Controllers Organization, MEBA, AFL-CIO, Local 301, Aurora, Illinois, 7 A/SLMR 896 (1977).

22. Similarly, a union need not allow non-member bargaining unit employees to vote on whether a negotiated agreement should be ratified. See American Federation of Government Employees, Local 2000, AFL-CIO, 14 FLRA No. 85, 14 FLRA 617 (1984) and National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 350, 42 LRRM 2034 (1958).

23. Similarly, a ratification vote concerns approval of an already agreed-upon contract that had been negotiated.

24. National Federation of Federal Employees, Local 1827 (Catherine Bratton), 49 FLRA No. 71, 49 FLRA 738 (1994)(union violated its duty of fair representation when non-union members of the bargaining unit were not permitted to participate in a poll conducted by the union concerning the method of determining seniority to calculate seniority-based benefits in a situation when the contract granted the union final decisional authority).

25. Unions may conduct their meetings and other internal procedures in accordance with there own rules and procedures. Issues concerning whether a union has violated any standards of conduct can be filed with the Department of Labor pursuant to section 7120 of the Statute. Under section 7116(c) of the Statute, unions also may enforce discipline in accordance with procedures under its constitution and bylaws to the extent consistent with the Statute. See e.g., United States Department of Labor, 20 FLRA No. 20, 20 FLRA 306 (1985), reversed on other grounds, American Federation of Government Employees, Local 2513, AFL-CIO v. FLRA, 834 F.2d 174, 177 (1987) (AFGE v. FLRA).

26. Of course, as discussed in Part II, the resulting condition of employment may not treat members and non-members differently or be the product of arbitrary and bad faith conduct by the union.

27. See e.g., Marine Corps Logistics Base, Barstow, California, 33 FLRA No. 80, 33 FLRA 626, 637 (1988)(whether under the particular circumstances, the conduct could reasonably tend to coerce or intimidate employees in the exercise of their section 7102 rights).

28. See Oklahoma Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA No. 32, 6 FLRA 159 (1981) and 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson, Arizona, 18 FLRA No. 73, 18 FLRA 583 (1985).

29. See Department of the Army Headquarters, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA No. 82, 29 FLRA 1110 (1987)(agency interfered with employee rights by violating the neutrality to be maintained during the pendency of a question concerning representation).

30. National Army and Air Technicians Association, Local 371 (New Jersey Department of Defense), 7 FLRA 154, 7 FLRA No. 22 (1981), at footnote 2 (aggrieved employee was an employee of the charging party agency).

31. General Services Administration (Bobbie J. Brunning and National Federation of Federal Employees, Local 1800), 50 FLRA No. 61, 50 FLRA 401 (1995) (a supervisor jointly filed a charge with a union).

32. See e.g., National Federation of Federal Employees, Local 1827, 49 FLRA No. 71, 49 FLRA 738 (a union violated its duty of fair representation when it refused to allow non-union members of the bargaining unit to participate in a poll concerning the method of determining seniority to calculate seniority-based benefits where the contract granted the union the discretion to determine the type of seniority to be used); U.S. Air Force, Loring Air Force Base, Limestone, Maine, 43 FLRA No. 90, 43 FLRA 1087 (1992)(a union violated its duty of fair representation by entering into a settlement agreement which provided for the distribution of environmental differential pay with preference to union members); and Antilles Consolidated Education Association (OEA/NEA), San Juan, Puerto Rico, 36 FLRA No. 79, 36 FLRA 775 (1990)(a union violated its duty of fair representation when it charged only non-union members a fee to administer a dental/optical plan established through collective bargaining as a benefit to all unit employees).

33. See the discussion on pages 7 - 13 of the work group guidance memorandum for the legal analysis supporting these views.

34. See 5 U.S.C. 4302 (performance appraisal systems must provide for using performance appraisals as a basis for rewards and recognizing employee performance).

35. See 5 U.S.C. 4503 (listing awards not based on individual performance appraisals) and 5 CFR 451.101 (providing for "recognition of, an employee (individually or as a member of a group))".

36. The Authority also has found bargaining proposals nonnegotiable because they conflict with the duty of fair representation. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA No. 57, 38 FLRA 615 (1990) and National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA No. 67, 46 FLRA 696, 703 (1992)(proposals that provided that the union had the right to collect fees from non-members for arbitrating grievances on their behalf were nonnegotiable).