Non Member Cannot Vote

To:      Michael Fanfalone
           Tom Brantley
           Ron Medeiros
           Bob Garnett
           Ron Rahrig
           Regional Assistants
           SMO Representatives

Fr: Mike Derby, PASS Counsel

Date: 4/12/02

Re: FLRA Case DA-CO-O1-O81O (Watch Schedules)

Enclosed is a copy of a letter from the FLRA’s Dallas Regional Director DISMISSING the ULP charge against PASS filed by a non-member who was told by the facility representative to join PASS if he wanted to vote on the new watch schedule. Please review the Regional Director’s letter so that you will be familiar with the legal standards relating to limiting input and voting rights to PASS

In rejecting the non-member’s charges against PASS, the Regional Director stated:

“A statement conveying that only Union members vote on bargaining proposals for schedules and an employee who wants to vote should join the Union, merely sets out the Union ‘s statutory rights with regard to developing bargaining proposals. Since the schedule is a bargaining proposal, only Unions members vote on the bargaining proposals taken before management”

Please note that when Union representatives are working with management on watch schedule changes, it is very important to make sure that whatever is submitted to management be designated as “PASS’S BARGAINING PROPOSAL” When developing the bargaining proposal, PASS representatives have a legal right to ignore input from non-members. Non-members should be told it is PASS’S policy NOT TO ACCEPT input from non-members on bargaining proposals. When an agreement is reached on a new watch schedule, it is also important for the PASS representative and a manager to SIGN the schedule. If the Union wishes to have a vote on the newly negotiated watch schedule, non-members should be told it is PASS’s policy to allow UNION MEMBERS ONLY to vote on the new schedule.

Although the Union cannot negotiate in a way that discriminates against non-members, such as giving non-members all undesirable shifts, it is perfectly lawful to limit input from non-members. When the non-members get the message that they will have very little input on matters involving their working conditions, perhaps they will decide it is in their best interest to join PASS.

Please circulate this memorandum and attached letter to PASS’s SSC and facility representatives. Please give me a call if you have any questions about this matter.

This office has investigated the unfair labor practice charge you filed. I have carefully considered all of the evidence and conclude that issuance of a complaint is not warranted.

The charge, as clarified during the investigation, alleges the Professional Airway Systems Specialists (Union) violated Section 71 16(b)( 1), (2) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by allowing only Union members to vote on schedules and thereby harassing and coercing employees into joining the Union, and by giving preferential schedules to the Union members.

The investigation revealed that on or about June 17,2001, Joe Hubenak, a co-worker, told you that there was going to be a new schedule. You were also told that the schedule was written by Glen Van Wyck, the Union representative. You then talked to Van Wyck about the matter. You assert that Van Wyck told you to join the Union if you wanted to vote on the schedule.

The investigation further revealed that on or about August 2001, the shift schedule was changed in accordance with management’s wishes that all the shop employees work 8 hour shifts. The shift schedule was changed so that everyone rotates through the same schedule. One employee will work a set schedule for a two week period of time then rotate to the schedule applicable fir the following two week period. A complete rotation is about every 6 weeks. A schedule is set or changed when management tells the Union the shift hours that need to be covered. The Union takes this information and develops a bargaining proposal for a schedule. Input is accepted from employees. However, once the bargaining proposal is set only Union members are allowed to vote on whether that schedule is an acceptable proposal. There are only two Union members, Van Wyck and another employee. The shop has about 9 to 11 employees. After the vote, the proposed schedule is given to management. Management usually accepts the schedule after a brief discussion with the Union.

The standard for determining whether a union’s allegedly coercive statement violates Section 7116(b)(l) of the Statute is whether, under the circumstances, an employee reasonably could have drawn a coercive inference from the statement. See National Air Traffic Controllers Association, MEBA/AFL-CIO, 55 ELBA No. 103 (1999);American Federation of Government Employees, Local 987, Warner Robbins, Georgia, 35 FLRA 720, 724 (1990). As in cases involving a violation of Section 7116(a)(l) of the Statute, the standard for a Section 7116(b)(l) violation is not based on the subjective perceptions of the employee hearing or receiving the communication, or on the intent of the speaker. See Department of the Army Headquarters. Washington, D.C. and US. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 ELLA 1110,1124 (1987). A statement conveying that only Union members vote on bargaining proposals for schedules and an employee who wants a vote should join the Union. merely sets out the Union’s statutory rights with regard to developing bargaining proposals. Since the schedule is a bargaining proposal, only Union members vote on the bargaining proposals taken before management. As such, I am unable to conclude the Union violated Section 7116(b)(1) of the Statue.

The Authority held in Overseas Education Association, 11 FLRA 377(1981), that a Union violated Section 711 6(b)(2) of the Statute when its president requested a bargaining unit member be disciplined for a letter distributed in criticism of the Union. In American Federation of Government Employees. Local 3475, 45 ELBA 537(1992), the Authority held the Union violated Section 71 16(b)(2) of the Statute by attempting to have the agency discipline an employee for allegedly using non-work time to prepare and distribute materials critical of local officials. In these cases the Unions’ violations were not based on the accuracy of the bargaining unit members’ statements, but rather on the right of the members to make them. In this case, you have provided insufficient evidence that the Union attempted to have the Activity discriminate against you based on your exercising the right not to join the Union. In this respect, it is noted that the schedule in question was based on employees completing a rotation which lasted approximately 6 weeks and all employees rotate through the same schedule.

Section 71 14(a)(1) of the Statute provides that an exclusive representative is responsible fir representing the interests of all employees in the unit without discrimination and without regard to labor organization membership. The Authority has held that where it is alleged that a union failed to comply with Section 71 l4(a)(1) by discriminating on the basis of union membership, it must first determine whether the union’s disputed activities were undertaken in the union’s role as exclusive representative. If the activities were undertaken in that role, then the duty of fair representation attaches and the Authority determines whether the union unlawfully discriminated on the basis of union membership. National Federation of Federal Employees. Local 1827,49 FLRA 738, 746 (1994). Failure to comply with Section 71l4(a)(l) represents a violation of Section 71 16(b)(1) and (8) of the Statute. In this case, there is insufficient evidence that the schedule was discriminatory or that the schedule gave Union members better shifts. The evidence has shown that a single schedule was determined and all employees rotated through a complete schedule. All employees finished the rotation at the place in the schedule where they had begun the rotation. Accordingly, further proceedings are not warranted and I am refusing to issue complaint in this matter.

If you do not agree with my decision, you may file an appeal with the General Counsel at the address below. Your appeal should include the applicable Case Number (DA-CO-Ol-0810) and be addressed to the:

You may file your appeal by mail or by hand delivery. Whichever method you choose, please note that the last day for filing an appeal in this case Is April 29,2002. This means that an appeal that is mailed must be postmarked, or an appeal must be hand delivered, no later than April 24,2002.

If you need more time to prepare your appeal, you may request an extension of time. Mail or hand deliver your request for an extension of time to the Office of the General Counsel at the address listed above. Because a request for an extension of time must be received at least five days before the date your appeal is due, any request for an extension of time in this case must be received at the above address no later than April 24,2002.

The procedures and time limits for filing an appeal are set forth in the Authority’s Regulations at section 2423.10(c) through (e) (Volume S of the Code of Regulations). 5 C.F.R. §2423.10(c)-(e). These regulations may be found in any Authority Regional office, public law library, some large general purpose libraries, Federal Personnel Offices, and the Authority’s Home Page internet site -www.FLRA.gov.

I have also enclosed a document which summarizes commonly-asked questions and answers regarding the Office of the General Counsel’s unfair labor practice appeals process.

cc: Mike Derby, Attorney, Professional Airway Systems Specialists, 1150 17”’ St., NW Suite 702, Washington, D.C. 20036

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Date: 4/12/02