American Federation of Government Employees, Local 2206 and American Federation of Government Employees, AFL-CIO (Authority decision, July 5, 1979)

Final FLRA decision under Executive Order 11491. This final order denies review of an Assistant Secretary decision under the Authority's transition rules, 5 C.F.R. §§ 2400.3 and 2411.12 (1978). The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

AFGE and Local 2206 expelled three members without giving them written charges specifying the conduct at issue. The Assistant Secretary found that this denied the members a fair disciplinary hearing and ordered their membership restored. The unions sought Authority review and a stay, arguing that the members had obstructed the process and that one former federal employee could not be reinstated. The Authority found no arbitrary decision or major policy issue, noting that the union had continued to accept the former employee's dues before expelling him on other grounds. It denied review and a stay, leaving the reinstatement remedy in place.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 C.F.R. §§ 204.2(a)(5) and 2411.12 (1978).
• Outcome: Review and stay denied; member-reinstatement remedy left in place.
• Key point: Union disciplinary charges had to give members specific written notice of the conduct alleged.

Full text (FLRA public release)

[ v01 p696 ]

01:0696(77)AS

The decision of the Authority follows:

1 FLRA No. 77
JULY 5, 1979

MR. JAMES L. NEUSTADT
ASSISTANT GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005

RE: AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2206, AFL-CIO AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, A/SLMR No. 1180,
Case No. 0-AS-8

DEAR MR. NEUSTADT:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND
COMPLAINANT'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.

THIS CASE RESULTED FROM A COMPLAINT FILED BY DONALD G. JOLLY, MARY G.
WALDROP, AND ELLA S. PORTER (COMPLAINANTS) AGAINST THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AFGE LOCAL 2206 (THE
UNION). THE COMPLAINT ALLEGED, IN PERTINENT PART, THAT THE UNION
VIOLATED SECTION 204.2(A)(5) OF THE ASSISTANT SECRETARY'S STANDARDS OF
CONDUCT REGULATIONS /1/ IMPLEMENTING SECTION 18 OF THE ORDER BY
IMPROPERLY EXPELLING COMPLAINANTS FROM MEMBERSHIP IN THE UNION WITHOUT
PROVIDING THEM WITH WRITTEN SPECIFIC CHARGES, NOT GIVING THEM A
REASONABLE TIME TO PREPARE THEIR DEFENSE, AND NOT AFFORDING THEM A FULL
AND FAIR HEARING.

THE ADMINISTRATIVE LAW JUDGE (ALJ) CONCLUDED, IN RELEVANT PART, THAT
THE UNION VIOLATED SECTION 204.2(A)(5) OF THE ASSISTANT SECRETARY'S
REGULATIONS BY EXPELLING COMPLAINANTS AND RECOMMENDED, AMONG OTHER
THINGS, THAT THEY BE REINSTATED TO FULL MEMBERSHIP. THE ASSISTANT
SECRETARY, IN AGREEMENT WITH THE ALJ, FOUND THAT THE UNION IMPROPERLY
FAILED TO PROVIDE THE COMPLAINANTS WITH WRITTEN SPECIFIC CHARGES PRIOR
TO THE TRIALS, AND THAT THE COMPLAINANTS' FAILURE TO ATTEND THE TRIALS
DID NOT CONSTITUTE A WAIVER OF THEIR RIGHTS UNDER SECTION 204.2(A)(5) OF
THE REGULATIONS. IN SO CONCLUDING, THE ASSISTANT SECRETARY STATED:

(T)HE EVIDENCE AND TESTIMONY SHOWS THAT THE ONLY DOCUMENT GIVEN TO
(COMPLAINANTS) PRIOR TO

THEIR TRIALS WAS A COPY OF THE CHARGES FILED BY A MEMBER OF LOCAL
2206. THOSE CHARGES MERELY

QUOTED A NUMBER OF SUBSECTIONS OF THE AFGE CONSTITUTION AND CONTAINED
NO INDICATION OF THE

SPECIFIC ACTIONS WHICH ALLEGEDLY VIOLATED THOSE PROVISIONS.

THE (UNION) RESPONDENTS DO NOT CONTEST THE FACT THAT THE
(C)OMPLAINANTS WERE NOT GIVEN

WRITTEN SPECIFIC CHARGES PRIOR TO THE TRIALS. RATHER, THEY ARGUE
THAT THE (C)OMPLAINANTS

FAILED TO COOPERATE WITH THE INVESTIGATING COMMITTEE IN ITS ATTEMPTS
TO PROVIDE INFORMATION

REGARDING THE CHARGES, FAILED TO ATTEND THEIR TRIALS, AND FAILED TO
SUPPLY ADDITIONAL

INFORMATION OR ARGUMENTS FOR THE RECORD TO THE TRIAL COMMITTEE . . .
CONSEQUENTLY, THE

RESPONDENTS URGE, THE (C)OMPLAINANTS REPUDIATED AND OBSTRUCTED THE
CONSTITUTIONAL PROCEDURES

WHICH WOULD HAVE PROVIDED THEM ALL THE SPECIFICS THEY NEEDED AND
WOULD HAVE AFFORDED THEM

THEIR RIGHTS OF DUE PROCESS.

THIS ARGUMENT IS NOT CONVINCING. THE REGULATIONS ARE CLEAR AND
UNAMBIGUOUS ON THE

REQUIREMENTS OF WRITTEN SPECIFIC CHARGES. THE AFGE CONSTITUTION IS
SIMILARLY CLEAR AND

UNAMBIGUOUS. /3/ . . . (I)T IS CLEARLY THE OBLIGATION OF LABOR
ORGANIZATIONS TO PROVIDE

SPECIFIC INFORMATION SO AS TO APPRISE MEMBERS OF THE CHARGES AGAINST
THEM. THE RESPONDENTS

DID NOT FULFILL THIS OBLIGATION.

. . . .

CONSEQUENTLY, I AGREE WITH THE CONCLUSION OF THE (ALJ) THAT LOCAL
2206 VIOLATED (S)ECTION

204.2(A)(5) OF THE REGULATIONS BY NOT PROVIDING THE (C)OMPLAINANTS
WITH WRITTEN SPECIFIC

CHARGES PRIOR TO THE TRIALS. WITHOUT SPECIFIC INFORMATION AS TO THE
CHARGES AGAINST THEM,

THEY WERE UNABLE TO PREPARE THEIR DEFENSE AND WERE NOT AFFORDED A
FULL AND FAIR HEARING.

FURTHER, THE ASSISTANT SECRETARY REJECTED THE UNION'S ARGUMENT THAT
COMPLAINANT JOLLY COULD NOT BE REINSTATED TO MEMBERSHIP BECAUSE HE HAD
BEEN TERMINATED FROM FEDERAL EMPLOYMENT AND THUS NO LONGER MET THE
MEMBERSHIP REQUIREMENTS SET FORTH IN AFGE'S CONSTITUTION, STATING:

(J)OLLY WAS TERMINATED . . . OVER ONE YEAR BEFORE HIS EXPULSION ON
DIFFERENT GROUNDS

. . . DURING THIS PERIOD, THE RESPONDENTS ACCEPTED HIS DUES,
CONSIDERED HIM TO BE A MEMBER,

AND TOOK NO ACTION TO HAVE HIM REMOVED FROM MEMBERSHIP BECAUSE OF HIS
EMPLOYMENT STATUS. NO

EXPLANATION IS MADE AS TO WHY (THEY) DID NOT TAKE ANY ACTION DURING
OR AFTER THIS PERIOD OR

WHAT FACTORS IN JOLLY'S EMPLOYMENT SITUATION MAY HAVE CHANGED SINCE
HIS EXPULSION THAT RELATE

TO HIS ELIGIBILITY FOR MEMBERSHIP.

UNDER THESE CIRCUMSTANCES, THE RESPONDENTS HAVE NOT PRESENTED
CONVINCING EVIDENCE TO SHOW

THAT JOLLY IS NOT AT THE PRESENT TIME ELIGIBLE FOR MEMBERSHIP. THEY
HAD CHOSEN NOT TO

INTERPRET AND APPLY THE CONSTITUTIONAL REQUIREMENTS TO JOLLY
DIRECTLY, AND WE CANNOT DO SO IN

THE CONTEXT OF REVIEWING HIS EXPULSION ON DIFFERENT GROUNDS.

THE FACTS INDICATE THAT JOLLY WAS CONSIDERED TO BE A MEMBER UNTIL THE
TIME OF HIS

EXPULSION, AND WE HAVE CONCLUDED THAT HIS EXPULSION WAS IN VIOLATION
OF (S)ECTION 204.2(A)(5)

OF THE REGULATIONS. IT IS ALSO OUR CONCLUSION THAT THE PROVISIONS OF
(S)ECTION 18 OF THE

EXECUTIVE ORDER AND PART 204 OF THE REGULATIONS ARE NOT CONFINED TO
FEDERAL EMPLOYEES, BUT ARE

APPLICABLE TO ALL MEMBERS OF LABOR ORGANIZATIONS WHICH ARE SUBJECT TO
THE EXECUTIVE

ORDER. THE AUTHORITY TO ORDER REINSTATEMENT OF AN IMPROPERLY
EXPELLED MEMBER IS THEREFORE

WELL WITHIN THE PURVIEW OF THE EXECUTIVE ORDER.

THE ASSISTANT SECRETARY ACCORDINGLY ORDERED THE UNION TO CEASE AND
DESIST FROM THE CONDUCT FOUND VIOLATIVE AND TO TAKE CERTAIN AFFIRMATIVE
REMEDIAL ACTIONS, INCLUDING REINSTATING COMPLAINANTS TO FULL MEMBERSHIP,
AND CONSIDERING THEM AS FULL MEMBERS THROUGHOUT THE PERIOD OF THEIR
EXPULSIONS WITH ALL RIGHTS AND PRIVILEGES FLOWING THEREFROM.

IN THE UNION'S PETITION FOR REVIEW, IT IS ALLEGED THAT THE ASSISTANT
SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS IN THAT "NO WEIGHT WAS
GIVEN TO THE CLEAR RECORD EVIDENCE SHOWING THE COMPLAINANTS'
DELIBERATELY EVASIVE ACTIONS, ESPECIALLY THOSE BEFORE (LOCAL 2206'S)
INVESTIGAT(ING) COMMITTEE, WHICH PRECLUDED NOTICE OF THE SPECIFIC
CHARGES AGAINST THEM . . .," AND THAT THE ASSISTANT SECRETARY THEREFORE
IMPROPERLY SET ASIDE COMPLAINANTS' EXPULSIONS WHICH STEMMED FROM
"APPROPRIATE DUE PROCESS DISCIPLINARY PROCEEDINGS CONDUCTED IN
ACCORDANCE WITH AFGE'S CONSTITUTIONAL PROCEDURES." IT IS FURTHER ALLEGED
THAT THE ASSISTANT SECRETARY'S DECISION "RAISES A MAJOR POLICY ISSUE AS
TO WHETHER THE CLEAR AND UNEQUIVOCAL LANGUAGE OF A UNION'S CONSTITUTION
PROHIBITING MEMBERSHIP TO NON-EMPLOYEES PREVENTS REINSTATEMENT OF FORMER
EMPLOYEES TO MEMBERSHIP, AND SPECIFICALLY FOR (C)OMPLAINANT JOLLY, A
NON-EMPLOYEE."

IN THE AUTHORITY'S OPINION, THE UNION'S PETITION FOR REVIEW OF THE
ASSISTANT SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION
2400.3 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY
REFERENCE SECTION 2411.12 OF THE COUNCIL'S RULES. THAT IS, THE DECISION
OF THE ASSISTANT SECRETARY DOES NOT APPEAR ARBITRARY AND CAPRICIOUS OR
RAISE ANY MAJOR POLICY ISSUES.

WITH RESPECT TO THE ALLEGATION THAT THE ASSISTANT SECRETARY'S
DECISION IS ARBITRARY AND CAPRICIOUS, IT DOES NOT APPEAR THAT THE
ASSISTANT SECRETARY ACTED WITHOUT REASONABLE JUSTIFICATION IN REACHING
HIS DECISION IN THE CIRCUMSTANCES OF THIS CASE. IN THIS REGARD, THE
APPEAL FAILS TO SET FORTH ANY MATERIAL EVIDENCE THAT THE ASSISTANT
SECRETARY DID NOT CONSIDER IN REACHING HIS DECISION, BUT INSTEAD
CONSTITUTES IN EFFECT NOTHING MORE THAN DISAGREEMENT WITH THE ASSISTANT
SECRETARY'S DETERMINATION THAT THE UNION VIOLATED SECTION 204.2(A)(5) OF
THE ASSISTANT SECRETARY'S REGULATIONS IMPLEMENTING SECTION 18 OF THE
ORDER BY NOT PROVIDING THE COMPLAINANTS WITH WRITTEN SPECIFIC CHARGES
PRIOR TO THEIR TRIALS, AND THEREFORE PROVIDES NO BASIS FOR AUTHORITY
REVIEW.

WITH REGARD TO THE FURTHER CONTENTION THAT THE LANGUAGE IN THE
UNION'S CONSTITUTION PROHIBITING MEMBERSHIP TO NON-EMPLOYEES PREVENTED
REINSTATEMENT TO MEMBERSHIP OF FORMER EMPLOYEES, ESPECIALLY COMPLAINANT
JOLLY, IN THE AUTHORITY'S OPINION NO MAJOR POLICY ISSUE IS PRESENTED
WARRANTING REVIEW. IN THIS REGARD, THE AUTHORITY NOTES PARTICULARLY THE
ASSISTANT SECRETARY'S FACTUAL DETERMINATION THAT JOLLY HAD BEEN
TERMINATED FROM FEDERAL EMPLOYMENT OVER A YEAR BEFORE HIS EXPULSION FROM
THE UNION ON OTHER GROUNDS, DURING WHICH TIME THE UNION "ACCEPTED HIS
DUES, CONSIDERED HIM TO BE A MEMBER, AND TOOK NO ACTION TO HAVE HIM
REMOVED FROM MEMBERSHIP BECAUSE OF HIS EMPLOYMENT STATUS." ACCORDINGLY,
THE UNION'S RELIANCE ON THE LANGUAGE OF ITS CONSTITUTION CONSTITUTES
ESSENTIALLY MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S FINDING
THAT, "(U)NDER THE CIRCUMSTANCES, THE (UNION HAS) NOT PRESENTED
CONVINCING EVIDENCE TO SHOW THAT JOLLY IS NOT . . . ELIGIBLE FOR
MEMBERSHIP" AND THEREFORE PRESENTS NO BASIS FOR REVIEW.

SINCE THE ASSISTANT SECRETARY'S DECISION DOES NOT APPEAR ARBITRARY
AND CAPRICIOUS OR PRESENT A MAJOR POLICY ISSUE, THE APPEAL FAILS TO MEET
THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.3 OF THE
AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
2411.12 OF THE COUNCIL'S RULES. ACCORDINGLY, THE PETITION FOR REVIEW IS
HEREBY DENIED, AND THE REQUEST FOR A STAY IS ALSO DENIED. /2/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: C. E. CHAMBLEE

C. ROLNICK

LABOR

A/SLMR

LABOR

/1/ SECTION 204.2(A)(5) PROVIDES, IN PERTINENT PART:

(5) SAFEGUARDS AGAINST IMPROPER DISCIPLINARY ACTION. (A) NO MEMBER
OF ANY LABOR ORGANIZATION MAY BE FINED, SUSPENDED, EXPELLED, OR
OTHERWISE DISCIPLINED, EXCEPT FOR NONPAYMENT OF DUES BY SUCH
ORGANIZATION OR BY ANY OFFICER THEREOF UNLESS SUCH MEMBER HAS BEEN (I)
SERVED WITH WRITTEN SPECIFIC CHARGES; (II) GIVEN A REASONABLE TIME TO
PREPARE HIS DEFENSE; (III) AFFORDED A FULL AND FAIR HEARING.

(B) ANY PROVISION OF THE CONSTITUTION AND BYLAWS OF ANY LABOR
ORGANIZATION WHICH IS INCONSISTENT WITH THE PROVISIONS OF THIS SECTION
SHALL NOT BE A DEFENSE TO ANY PROCEEDING INSTITUTED AGAINST THE LABOR
ORGANIZATION UNDER THIS PART OF EXECUTIVE ORDER 11491, AS AMENDED.

/3/ UNDER ARTICLE XIV, SECTION 3 OF THE AFGE CONSTITUTION ADOPTED IN
1974, IF THE INVESTIGATING COMMITTEE FINDS PROBABLE CAUSE AND CANNOT
SETTLE THE MATTER INFORMALLY, THE ACCUSED ARE TO BE SERVED WITH WRITTEN
CHARGES BY REGISTERED OR CERTIFIED MAIL WHICH "SHALL CONTAIN AN
ALLEGATION OF THE FACTS DESCRIBING THE NATURE OF THE OFFENSES CHARGED."

/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.