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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. 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. 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.
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. Since performance awards are based on an evaluation of an employee's individual performance, 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. 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.

Duty of Fair Representation Cases Based on Union Membership

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:
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:
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.

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