American Federation of Government Employees and Social Security Administration (Authority decision, November 12, 1987)

Final FLRA decision. On court remand, the Authority dismisses the unfair labor practice complaint against the union and vacates its earlier decision. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

Social Security employees pursued grievances over night differential pay, and AFGE also arranged a civil lawsuit to speed payment. The lawsuit charged union members a 5 percent fee on recovery and nonmembers a 10 percent fee. On remand, the Authority found that the lawsuit supplemented the grievances and was open to employees independently of AFGE's exclusive representative role. It therefore held that the different lawsuit fees did not breach the union's duty of fair representation. The Authority vacated its earlier ruling and dismissed the complaint.

Decision snapshot

• Authority: Fair representation under 5 U.S.C. § 7114(a)(1) and union unfair labor practices under § 7116(b).
• Outcome: Earlier Authority decision vacated; complaint against the union dismissed.
• Key point: The separate civil lawsuit was not a substitute for the negotiated grievance process, so the union's exclusive representative duty did not govern its litigation fees.

Full text (FLRA public release)

[ v30 p35 ]
30:0035(9)CO

The decision of the Authority follows:

30 FLRA NO. 9

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES,
AFL-CIO

Respondent

and

SOCIAL SECURITY
ADMINISTRATION

Charging Party

Case No. 3-CO-20003
(17
FLRA 446)

DECISION AND ORDER ON REMAND

I. Statement of the
Case

This case is before the Authority pursuant to a remand from

the United States Court of Appeals for the District of Columbia circuit. The Authority had requested remand of this case in light of National Treasury Employees Union v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986) (NTEU II), which the court decided after the Authority's issuance of its original decision in this matter, American Federation of Government Employees, AFL - CIO, 17 FLRA 446 (1985). The question before us is whether it is an unfair labor practice under the Federal Service Labor - Management

Relations Statute (the Statute) for the Respondent to charge non-union member employees disparate fees to participate in a civil action law suit under the Back Pay Act. We find that the Respondent did not commit the unfair labor practices alleged and vacate the Authority's previous decision in this case.

II. Background

In a recent Decision and Order
in Fort Bragg Association of
Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA 908 (1987), the Authority reviewed its previous decisions concerning the scope of a labor organization's

duty of fair representation. The Authority concluded, in agreement with the court in NTEU III and in National Treasury Employees Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983) (NTEU I), that "Congress adopted for government employee unions the private sector duty of fair representation." Fort Bragg, 28 FLRA at 915. The Authority also determined that it will

analyze a union's responsibilities under section 7114(a)(1) of the Statute in the context of whether the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative. Fort Bragg, 28 FLRA at 918.

III. Discussion

In the underlying decision in this case, the Administrative Law Judge found that section 7114(a)(1) of the Statute obliges an exclusive representative to adhere to a standard of fair representation only in those proceedings which are in the sole control of the exclusive representative by virtue of its certification. The Judge concluded that the Statute does not impose such obligations in those proceedings which are available to employees in general, and are supplementary to, but not a substitute for, proceedings which are the sole prerogative of the exclusive representative. American Federation of Government Employees, 17 FLRA at 459. Consistent with the Authority's decision in Fort Bragg, we conclude, in agreement with the Judge, that the Respondent's action in charging non-union member

employees disparate fees to participate in a civil action law suit under the Back Pay Act did not violate section 7116(b)(1) and (8) of the Statute.

In this case, a question arose regarding whether the Social Security Administration (the Agency) had been paying the

appropriate night differential to Baltimore, Maryland, bargaining unit employees performing electronic data processing tasks in an overtime status. After discovering the alleged underpayment, several bargaining unit employees filed grievances under the negotiated grievance procedure of the collective bargaining agreement then in effect. The Respondent and the Agency met and discussed the mechanics for processing the grievances. They agreed to seek a ruling from the Comptroller General on the

overtime issue. They also established a task force to review the background records and claims for backpay from the numerous grievants.

The
Respondent's President became dissatisfied with the task force's progress in handling the many grievances. To spur the Agency to process the grievances more expeditiously, the Respondent engaged an attorney to file a civil suit to obtain the backpay. Consent forms were circulated among employees, asking whether they wished to join in the litigation. One of the Respondent's official publications also published a consent form

for participation in the suit, indicating a fee of 5 percent of any recovery for union members, and a 10 percent fee for non-union members. A civil action suit against the Agency seeking payment of the employees' night differential pay claims was filed in the summer of 1981.

There was no dispute as to the liability of the Agency for the overtime payments. The only question remaining was the calculation of the amounts owed to the individual grievants. The employees who grieved their overtime payment would not have received any different amount of backpay based upon their participation in the civil action. Although only the Respondent

could invoke arbitration on behalf of the employees under the existing collective bargaining agreement, there was no need for any of the grievances to proceed to arbitration, unless there was a disagreement over the computation of the overtime. There is no mention in the record of the Respondent failing to invoke arbitration. The Respondent did not intend the civil action to replace or substitute for the grievance/arbitration mechanism of the collective bargaining agreement. Rather, the civil action was merely a means to spur the Agency to more expeditious processing of the grievances.

The Judge found that the civil action was a route available to all employees, and not within the sole control of the

Respondent. The Judge also found that the civil action was used as a tool to expedite the processing of the grievances. Under these circumstances, the Judge found that the civil action suit constituted a benefit of Union membership as opposed to a right flowing from the Union's status as exclusive representative. The Judge concluded that the Respondent did not deny fair representation to the non - Union me-hers by permitting the

attorney to charge different fees to the participants in the suit depending on their membership in the Union.

Pursuant to section 2423.29 of the
Authority's Rules and
Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's Decision and the entire record, and

consistent with the Authority's decision in Fort Bragg and the court's decision in NTEU II, we find that the Judge properly analyzed the case in the context of whether the Union's representational activities on behalf of the employees were grounded in the Union's authority to act as exclusive representative.

The Union's duty of fair
representation in this case
extended to the grievance/arbitration procedure pursuant to its status as exclusive representative. We find, in agreement with the Judge, that the institution of the law suit was not so

integrally related to the pending grievances as to be part and parcel of those actions; that is, the law suit was not a substitute for arbitration in the circumstances of this case. Rather, the law suit was, as found by the Judge, a supplement to the pending grievance actions, and was not a proceeding that was in the sole control of the Union by virtue of its certification as the exclusive representative. We therefore adopt the Judge's findings, conclusions, and recommendations. Accordingly, we find that the Union did not violate its duty of fair representation by

bringing the law suit on behalf of Union members, and we will dismiss the complaint.

ORDER

The complaint in this case is dismissed.

Issued, Washington, D.C.,November 12, 1987.

Jerry L. Calhoun,
Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS
AUTHORITY

FOOTNOTES:
(If blank, the decision does not
have footnotes.)