Federal Aviation Science and Technological Association Division, National Association of Government Employees (Respondent) and Leland L. Spargo, Warner M. Hussong, Edwin L. Reisinger (Complainants) (Authority decision, March 7, 1980)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. 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

Three aviation employees complained that their union would not process their grievances because they were not union members. An administrative law judge found that the union had given different representation to bargaining unit employees based on membership and recommended an unfair labor practice remedy. Both the union and the complainants filed exceptions. The Authority adopted the judge's finding, rejected the union's objections, and kept the notice remedy focused on the Western Region where the complaint alleged the violation. It ordered the union to represent all unit employees equally and to post notices at union offices and designated agency locations.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, section 19(b)(1).
• Outcome: Judge's unfair labor practice finding and regional notice remedy adopted.
• Key point: Exclusive representatives must serve bargaining unit employees equally, regardless of union membership.

Full text (FLRA public release)

[ v02 p802 ]

02:0802(103)CO

The decision of the Authority follows:

2 FLRA No. 103

FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION DIVISION, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
Respondent

and

LELAND L. SPARGO, WARNER M. HUSSONG,
EDWIN L. REISINGER
Complainants

Assistant Secretary
Case No. 72-7821(CO)

DECISION AND ORDER

ON OCTOBER 1, 1979, ADMINISTRATIVE LAW JUDGE EIL NASH, JR. ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING
THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN
THE COMPLAINT. THEREAFTER THE RESPONDENT AND COMPLAINANTS FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SEC. 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (45
F.R. 3482, JANUARY 17, 1980). THE AUTHORITY CONTINUES TO BE RESPONSIBLE
FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC. 7135(B) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SEC. 7135(B) OF THE STATUTE, THE AUTHORITY HAS REVIEWED
THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND
FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE RESPONDENT'S AND COMPLAINANTS' EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION.

THE RESPONDENT AND COMPLAINANTS BOTH FILED EXCEPTIONS TO THE DECISION
OF THE ADMINISTRATIVE LAW JUDGE. THE AUTHORITY REJECTS THE RESPONDENT'S
EXCEPTIONS WHICH MAINTAIN THAT THE ADMINISTRATIVE LAW JUDGE HAS NOT
ADDRESSED THE ISSUES RAISED IN THE COMPLAINT. RATHER THE AUTHORITY
FINDS THAT THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE VIOLATIONS
ALLEGED BY THE COMPLAINANTS ARE VALID. THE AUTHORITY DENIES THE
COMPLAINANTS' EXCEPTIONS PERTAINING TO THE ADMINISTRATIVE LAW JUDGE'S
ORDER REGARDING THE GEOGRAPHIC AREA PRESCRIBED FOR THE POSTING OF NOTICE
BY THE RESPONDENT UNION. THE AUTHORITY FINDS THAT THE COMPLAINT ALLEGED
A SPECIFIC VIOLATION OF THE ORDER IN THE RESPONDENT'S WESTERN REGION
ONLY, AND NOT A VIOLATION BASED UPON THE NATIONWIDE PUBLICATION OF THE
UNION'S POLICY. MOREOVER, THE COMPLAINANTS' CHARGE WAS FILED OVER NINE
(9) MONTHS AFTER THE RESPONDENT'S PUBLICATION. /1/

ORDER

PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SHALL:

1. CEASE AND DESIST FROM:

(A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
WHETHER OR NOT SUCH EMPLOYEES ARE MEMBERS OF THE FEDERAL AVIATION
SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SEC. 1(A)
OF EXECUTIVE ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE ORDER.

(A) REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.

(B) POST AT THE LOCAL BUSINESS OFFICES OF THE FEDERAL AVIATION
SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, WESTERN REGIONAL OFFICES, RESPECTIVELY, AND ALL
PLACES WHERE NOTICES TO MEMBERS AND OTHER EMPLOYEES ARE CUSTOMARILY
POSTED, THE ATTACHED NOTICE MARKED "APPENDIX," ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED, AS INDICATED, BY THE PRESIDENT OF THE FEDERAL
AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, AND THEY SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY
POSTED. THE PRESIDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.

(C) SUBMIT THE APPROPRIATE SIGNED COPIES OF SAID NOTICE TO THE
ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.; THE
ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WESTERN REGION, FOR
POSTING IN CONSPICUOUS PLACES, WHERE THE RESPECTIVE UNIT EMPLOYEES ARE
LOCATED WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE
DAYS FROM THE DATE OF THE POSTING.

(D) NOTIFY THE AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
THIS ORDER, AS TO THE STEPS TAKEN IN COMPLIANCE HEREWITH.

ISSUED, WASHINGTON, D.C., MARCH 7, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

NOTICE TO ALL MEMBERS AND EMPLOYEES PURSUANT TO A DECISION

AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND

IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF

TITLE 5 OF THE UNITED STATES CODES FEDERAL SERVICE

LABOR-MANAGEMENT RELATIONS

WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES AT:

FEDERAL AVIATION ADMINISTRATION WESTERN REGION LOS ANGELES

ARTCC PALMDALE, CALIFORNIA

WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN EXCLUSIVELY RECOGNIZED UNITS, SOLELY ON THE BASIS OF
WHETHER OR NOT EMPLOYEES ARE MEMBERS OF THE FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.

WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SEC. 1(A)
OF EXECUTIVE ORDER 11491, AS AMENDED.

WE WILL REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.

(LABOR ORGANIZATION)

DATED: . . . BY: . . .

PRESIDENT, FEDERAL AVIATION SCIENCE

AND TECHNOLOGICAL ASSOCIATION

DIVISION, NATIONAL ASSOCIATION OF

GOVERNMENT EMPLOYEES

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.

IF MEMBERS OR EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: WORLD TRADE CENTER, 350 S. FIGUEROA STREET, 10TH
FLOOR, LOS ANGELES, CALIFORNIA 90071, AND WHOSE TELEPHONE NUMBER IS
(213) 688-3805.

LAWRENCE A. SUMP

WESTERN REGIONAL VICE-PRESIDENT

PROFESSIONAL AIRWAY SYSTEMS SPECIALISTS,

SUITE 310, 333 HEGENBERGER ROAD

OAKLAND, CALIFORNIA 94621

FOR THE COMPLAINANTS

RONALD E. STEENSLAND, ESQ.

WEST COAST COUNSEL, NATIONAL

ASSOCIATION OF GOVERNMENT EMPLOYEES,

SUITE "A", 3300 WEST OLIVE AVENUE

BURBANK, CALIFORNIA 91505

FOR THE RESPONDENT

BEFORE: ELI HASH, JR.

ADMINISTRATIVE LAW JUDGE

RECOMMENDED DECISION AND ORDER

STATEMENT OF THE CASE

PURSUANT TO A COMPLAINT FILED ON NOVEMBER 7, 1978, UNDER EXECUTIVE
ORDER 11491, AS AMENDED BY PROFESSIONAL AIRWAY SYSTEMS SPECIALISTS
(HEREIN CALLED PASS), AGAINST FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
(HEREIN CALLED THE RESPONDENT) A NOTICE OF HEARING WAS ISSUED BY THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, LOS ANGELES,
CALIFORNIA. ALTHOUGH THIS PROCEEDING WAS INITIATED BEFORE THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, THE INSTANT DECISION
IS ISSUED IN THE NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44, NO. 1,
JANUARY 2, 1979 (5 C.F.R. 2400.2).

THE COMPLAINT HEREIN ALLEGES IN SUBSTANCE THAT RESPONDENT VIOLATED
SECTION 19(B)(1) BY ESTABLISHING A DISCRIMINATORY POLICY OF
REPRESENTATION FOR NON-MEMBERS AND PUBLISHING SUCH POLICY IN ITS
PUBLICATION FEDNEWS. THE COMPLAINT ALLEGES FURTHER THAT, RESPONDENT'S
AGENT HOWARD BURROUGHS, PRESIDENT OF THE WESTERN REGION IN COMPLIANCE
WITH RESPONDENT'S POLICY, RESPONDED TO A REQUEST TO PROCESS GRIEVANCES
FOR COMPLAINANT STATING THAT HE COULD NOT PROCESS THEIR GRIEVANCES SINCE
THEY WERE NOT MEMBERS. FINALLY, THE COMPLAINANT ALLEGES THAT
RESPONDENT'S AGENT HOWARD BURROUGHS ATTEMPTED TO COERCE COMPLAINANTS
INTO JOINING RESPONDENT BEFORE THEIR GRIEVANCE WOULD BE PROCESSED INTO
THE NATIONAL HEADQUARTERS.

A HEARING WAS HELD IN THE MATTER ON JULY 12, 1979, IN PALMDALE,
CALIFORNIA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, AND ENTER EVIDENCE RELATED TO THE
ISSUES HEREIN, AND TO FILE BRIEFS.

UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDING OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDATIONS.

FACTS

THE BASIC FACTS ARE SIMPLE AND UNDISPUTED AND THEREFORE NEED NOT BE
RESTATED AT LENGTH. AT ALL TIMES MATERIAL HEREIN, THE THREE
COMPLAINANTS LELAND L. SPARGO, WARNER M. HUSSONG AND EDWIN L. REISINGER
WERE EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION, WESTERN REGION AT
THE LOS ANGELES ARTCC, IN PALMDALE, CALIFORNIA. THE EXCLUSIVE
REPRESENTATIVE OF COMPLAINANT'S BARGAINING UNIT IS THE RESPONDENT. AT
ALL TIMES MATERIAL HEREIN, NEITHER OF THE COMPLAINANTS WAS A MEMBER OF
RESPONDENT.

DURING FEBRUARY 1977, THE RESPONDENT PUBLISHED IN ITS NEWSLETTER
FEDNEWS THE FOLLOWING NOTICE:

NAGE LOCALS MUST ENFORCE THE FOLLOWING CONDITIONS UPON ANY COMPLAINT
THEY RECEIVE TO BE PROCESSED.

THESE CONDITIONS WILL BE ADHERED TO REGARDLESS OF RACE, CREED, COLOR,
AGE, GRADE OR ANY OTHER DISCRIMINATORY CONDITION.

NAGE MEMBERS:

NON-MEMBERS:

1) REPRESENTATION ON ALL MATTERS GRIEVANCES, RECLASSIFICATION
MATTERS, UNFAIR LABOR PRACTICE PROBLEMS, DISABILITY CLAIMS, (SIC)
PROMOTION EXAMS, DISCRIMINATION COMPLAINTS, CIVIL SERVICE APPEALS, AND
FEDERAL COURT APPEALS ON JOB-RELATED PROBLEMS.

WE ARE OBLIGED TO GIVE YOU LOCAL REPRESENTATION

ONLY-- BUT WITHOUT NATIONAL

ATTORNEYS (A FELLOW EMPLOYEE WILL REPRESENT YOU).

2) YOU WILL RECEIVE THE SERVICES OF AN ATTORNEY AT NO COST TO YOU--
THE MEMBERS.

WE WILL NOT HANDLE CASES BEFORE THE CIVIL SERVICE

COMMISSION OR THE COURTS.

3) REPRESENTATION BY ATTORNEYS AT NO COST TO YOU ON BASE AND OFF
BASE.

4) $10,000 ACCIDENT AND DISMEMBERMENT INSURANCE ON A 24-HOUR
COVERAGE.

5) FEDNEWS MAILED TO YOUR HOME MONTHLY.

SUBSEQUENTLY, IN EARLY FEBRUARY 1978, THE COMPLAINANTS INITIATED AN
INFORMAL GRIEVANCE AGAINST THE AGENCY INVOLVING AN INTERPRETATION OF
RESPONDENT'S NEGOTIATED AGREEMENT, ARTICLE 40, RELATING TO THEIR RIGHT
TO WORK REGULAR HOURS ON A SCHEDULED HOLIDAY. ON FEBRUARY 10, 1978 THE
GRIEVANCE WAS DENIED BY THEIR SUPERVISOR AND IN ACCORDANCE WITH ARTICLE
56, SECTION 4 OF THE AGREEMENT, THE COMPLAINANTS SUBMITTED A FORMAL
SECOND STEP GRIEVANCE TO THE SECTOR MANAGER. A FURTHER UNFAVORABLE
DECISION ON THE GRIEVANCES WAS RENDERED BY THE SECTOR MANAGER ON MARCH
1, 1978. AT THIS POINT THE COMPLAINANTS WERE REQUIRED UNDER THE
AGREEMENT TO PROCESS THE GRIEVANCE THROUGH THE RESPONDENT'S
REPRESENTATIVE IN THEIR SECTOR, HOWEVER, SINCE NO REPRESENTATIVE HAD
BEEN DESIGNATED FOR THEIR SECTOR THE GRIEVANCE WAS MAILED TO
RESPONDENT'S WESTERN REGION PRESIDENT HOWARD BURROUGHS, WHO HAD
RESPONSIBILITY FOR PROCESSING THE GRIEVANCE FROM THAT POINT.

IT IS UNDISPUTED THAT THE POSITION PUBLISHED IN THE FEBRUARY 1977
FEDNEWS STILL EXISTED AT THE TIME THE GRIEVANCE HEREIN WAS FILED.

A REPLY FROM MR. BURROUGHS DATED MARCH 11, 1978 STATED IN PART:

AS YOU NO (SIC) DOUBT ARE AWARE, THE COST FOR ARBITRATION FROM PAST
EXPERIENCE WILL RUN THE

UNION APPROXIMATELY $1000 AND THE FAA THE SAME, NOW SURELY YOU DO NOT
EXPECT THE PRESENT

MEMBERS TO HAVE TO GO IT ALONE WHILE SOME FAA EMPLOYEES GO ALONG FOR
THE RIDE, AND NOT

PROVIDING THEIR (SIC) FAIR SHARE, BY BECOMING MEMBERS. IF A BACK PAY
ISSUE IS INVOLVED ONLY

THE PEOPLE ON THE UNION'S (SIC) MEMBER IN GOOD STANDING LIST WILL BE
AFFORDED THE OPPORTUNITY

DUE TO THE HIGH COST OF ARBITRATION, WHICH HAS BEEN UPHELD BY THE
COURTS.

SINCE YOU SHOW THE DETERMINATION AND THE GUTS TO FILE A GRIEVANCE
THEREBY STANDING UP FOR

YOUR RIGHTS UNDER THE CONTRACT, WHY NOT TAKE ONE MORE STEP AND JOIN
FASTA SO THAT WE CAN MOVE

AS ONE AGAINST THE R.O.

WHILE SOME TECHS. HOLD ALLEGIANCE (SIC) TO PASS (SIC) HOPING FOR A
PIE IN THE SKY WHILE

THEIR (SIC) DUES MONIES IS BEING USED STRICTLY TO PROVIDE MR.
JOHANNSON WITH A $34000 SALARY

PLUS $27000 FOR HIS ASSISTANT, WHILE NOT BEING ABLE TO REPRESENT
ANYONE THROUGHOUT THE

FAA. FASTA NEEDS YOU AND EVIDENTLY YOU NEED FASTA SO I'LL BE GLAD TO
FORWARD YOU A COPY OF

THE FASTA NEWSLETTER AND 3 APPLICATION FORMS FOR YOU TO SIGN SO THAT
I MAY PROCESS YOUR

GRIEVANCE INTO THE NATIONAL HDQRS. YOU (SIC) WILL MAKE ENOUGH ON ONE
HOLIDAY TO PAY FOR A

HALF A YEARS DUES.

THE PRECISE FATE OF THE GRIEVANCE BETWEEN MARCH 11 AND JULY IS IN
DISPUTE. THE ONLY DEFINITIVE EVIDENCE IS THAT THE GRIEVANCE WAS PLACED
ON AN AGENCY PREPARED AGENDA FOR A QUARTERLY MEETING BETWEEN RESPONDENT
AND THE AGENCY ON JULY 26, 1978 INDICATING THAT SOME POSITIVE ACTION WAS
TAKEN ON THE GRIEVANCE. THE RECORD SUGGESTS THAT THIS GRIEVANCE WAS
HELD ALONG WITH OTHER GRIEVANCES INVOLVING DISPOSITION OF THE SAME ISSUE
BEFORE AN ARBITRATOR. IN ANY EVENT THE SUBJECT MATTER OF THE GRIEVANCE
WAS RESOLVED BY THE DECISION OF AN ARBITRATOR IN DECEMBER, 1978.

CONCLUSIONS

WITH REGARD TO THE FEDNEWS NOTICE OF FEBRUARY 1977, THE FEDERAL LABOR
RELATIONS AUTHORITY IN NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER
202, ET AL., 1 FLRA NO. 104 (AUGUST 30, 1979), CASES INVOLVING
COMMUNICATIONS TO EMPLOYEES WHICH AFFORDED REPRESENTATION BY ATTORNEYS
IN CERTAIN WORK-RELATED SITUATIONS WHEREAS NON-UNION MEMBERS WOULD
RECEIVE REPRESENTATION BY NON-ATTORNEYS HELD THE COMMUNICATIONS:

ESTABLISHED A POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED

UNITS, BASED SOLELY UPON UNION MEMBERSHIP. THUS, THE NATURE OF THE
REPRESENTATION PROVIDED BY

THE EXCLUSIVE REPRESENTATIVE IS BASED UPON NEITHER THE MERITS OF THE
INDIVIDUAL SITUATION NOR

THE SKILLS OF THE INDIVIDUAL REPRESENTATIVE SELECTED TO REPRESENT THE
UNIT EMPLOYEES. SUCH

CONDUCT IS INCONSISTENT WITH (RESPONDENT'S) OBLIGATION TO REPRESENT
THE INTERESTS OF ALL

EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION

MEMBERSHIP AS REQUIRED BY SECTION 10(E) OF THE ORDER AND IMPROPERLY
INTERFERES WITH, RESTRAINS

AND COERCES NON-UNION EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO
REFRAIN FROM JOINING

(RESPONDENT).

IN ITS BRIEF RESPONDENT ARGUES THAT COMPLAINANTS HAD NO OCCASION TO
COMPLAIN OF FASTA'S POLICY OF DENYING A LAWYER TO NON-MEMBERS AT THE
ARBITRATION STAGE, SINCE THE QUESTION RAISED IN THEIR GRIEVANCE WAS
SETTLED IN ARBITRATION IN ANOTHER REGION. BASED ON THE AUTHORITY'S
DECISION IN THE NTEU CASE THIS ARGUMENT IS MISPLACED. THE AUTHORITY'S
DECISION MAKES CLEAR THAT A POLICY OF DISPARATE TREATMENT BASED SOLELY
UPON UNION MEMBERSHIP IS INCONSISTENT WITH A LABOR ORGANIZATION'S
OBLIGATION TO REPRESENT ALL EMPLOYEES WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP. THE FEDNEWS POLICY, WHICH WAS IN EXISTENCE AT
THE TIME THE GRIEVANCES WERE FILED IN THIS MATTER, ON ITS FACE,
DISTINGUISHES REPRESENTATION WHICH WILL BE AFFORDED RESPONDENT'S MEMBERS
AS OPPOSED TO NON-MEMBERS.

IN ADDITION THE MARCH 11, 1978 LETTER FROM WESTERN REGIONAL PRESIDENT
BURROUGHS, WHICH RESPONDENT CHARACTERIZED IN ITS BRIEF AS CONTAINING
SOME INJUDICIOUS REMARKS, RESTATED AND IMPLEMENTED RESPONDENT'S
PUBLISHED POLICY AND DOES INDEED ATTEMPT TO COERCE COMPLAINANTS IN TO
JOINING RESPONDENT BEFORE THEIR GRIEVANCE WAS PROCESSED. WHILE
RESPONDENT WOULD ARGUE THAT THE GRIEVANCE WAS PROCESSED IN A NORMAL
FASHION, THE THRUST OF THE COMPLAINT CLEARLY IS AGAINST THE
COMMUNICATION WHICH ESTABLISHED A POLICY OF DISPARATE TREATMENT AMONG
EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNITS, BASED SOLELY ON UNION
MEMBERSHIP.

IN THESE CIRCUMSTANCES, WHERE SUCH A POLICY EXISTS, AND WHERE THE
COMPLAINANTS WERE INFORMED THAT THEIR GRIEVANCES WOULD NOT BE PROCESSED
TO COMPLETION IN THE SAME MANNER AS UNION MEMBERS BECAUSE OF THE
EXISTING POLICY, THE QUESTION OF WHETHER OR NOT RESPONDENT DECIDED TO
TAKE A DIFFERENT COURSE OF ACTION AT SOME LATER DATE IS IMMATERIAL.
ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT'S REPRESENTATION POLICY AS
EXPRESSED IN THE FEDNEWS AND ITS RESTATEMENT IN THE MARCH 11, 1978
LETTER TO COMPLAINANTS FROM PRESIDENT BURROUGHS VIOLATES SECTION
19(B)(1) OF THE ORDER.

RECOMMENDED ORDER

PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R. SECTION 2400.2, FED. REG., VOL. 44, NO. 1, JANUARY
2, 1979 HEREBY ORDERS THAT FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
SHALL:

1. CEASE AND DESIST FROM:

(A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
WHETHER OR NOT SUCH EMPLOYEES ARE MEMBERS OF THE NATIONAL AVIATION
SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES.

(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SECTION
1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE ORDER:

(A) REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
THE NATIONAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.

(B) POST AT THE LOCAL BUSINESS OFFICES OF THE NATIONAL AVIATION
SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, WESTERN REGIONAL OFFICES, RESPECTIVELY, AND AT ALL
PLACES WHERE NOTICES TO MEMBERS AND OTHER EMPLOYEES ARE CUSTOMARILY
POSTED, ATTACHED NOTICES MARKED "APPENDIX A", RESPECTIVELY ON FORMS TO
BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED, AS INDICATED, BY THE PRESIDENT OF THE
NATIONAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND BY THE PRESIDENTS OF
THE RESPECTIVE NATIONAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION
DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCALS AND THEY
SHALL BE POSTED AND MAINTAINED BY THE LOCAL PRESIDENTS FOR 60
CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED. THE RESPECTIVE LOCAL
PRESIDENTS SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.

(C) SUBMIT THE APPROPRIATE SIGNED COPIES OF SAID NOTICE TO THE
ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.; THE
ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WESTERN REGION, FOR
POSTING IN CONSPICUOUS PLACES, WHERE THE RESPECTIVE UNIT EMPLOYEES ARE
LOCATED WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE
DAYS FROM THE DATE OF THE POSTING.

NOTIFY THE AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
THIS ORDER, AS TO THE STEPS TAKEN IN COMPLIANCE HEREWITH.

ELI NASH, JR.

ADMINISTRATIVE LAW JUDGE

DATED: OCT 1 1979

WASHINGTON, D.C.

APPENDIX A

NOTICE TO ALL MEMBERS AND EMPLOYEES PURSUANT TO A DECISION

AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND

IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF

TITLE 5 OF THE FEDERAL SERVICE LABOR-MANAGEMENT

RELATIONS

WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES AT:

FEDERAL AVIATION ADMINISTRATION AIRWAY FACILITIES DIVISION

AND REGIONAL FACILITIES WASHINGTON, D.C.

WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
EMPLOYEES IN EXCLUSIVELY RECOGNIZED UNITS, SOLELY ON THE BASIS OF
WHETHER OR NOT EMPLOYEES ARE MEMBERS OF THE FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
OR ITS LOCAL CHAPTER.

WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SECTION
1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.

WE WILL REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
THE NATIONAL TREASURY EMPLOYEES UNION, OR ITS LOCAL CHAPTER.

(LABOR ORGANIZATION)

DATED: . . . BY: . . .

PRESIDENT

DATED: . . . BY: . . .

PRESIDENT, NATIONAL AVIATION

SCIENCE AND TECHNOLOGICAL

ASSOCIATION DIVISION, NATIONAL

ASSOCIATION OF GOVERNMENT EMPLOYEES

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.

IF MEMBERS OR EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: ROOM 4041, FEDERAL BUILDING, 300 N. LOS ANGELES
STREET, LOS ANGELES, CALIFORNIA 90012.

/1/ IN CONFORMITY WITH SEC. 902(B) OF THE CIVIL SERVICE REFORM ACT OF
1978 (92 STAT. 1224), THE PRESENT CASE IS 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 AND ORDER 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 EXECUTIVE ORDER.