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B. Office Of The General Counsel Guidance When The Duty Of Fair Representation Violation Concerns A Matter Other Than A Dispute With An Agency Which Would Have Been Decided Under The Negotiated Grievance Procedure But For The Duty Of Fair Representation Violation
Most decisions concerning the violation of the duty of fair representation based on union membership concern situations where the union has treated unit employees who are union members more favorably than unit employees who are not union members in matters relating to benefits and settlements negotiated by the union. Duty of fair representation violations when union membership is not a consideration also sometimes involve negotiated benefits and negotiated settlements. In addition to the traditional cease and desist orders and remedial postings, the Regions should continue to seek orders requiring unions that violate their duty of fair representation in these situations to make the affected employees whole as if there had been no violation. In essence, a union's violation of the duty of fair representation based on union membership constitutes discrimination for an employee's election not to engage in protected activity, a section 7102 right.
I am of the view that these types of duty of fair representation violations should be treated for remedy purposes no different than the treatment afforded agency violations based on discrimination for engaging in protected union activities. Discrimination for reasons other than union membership that concern benefits in conditions of employments similarly, in my view, requires that employees be made whole. This type of remedy is consistent with the objectives outlined by the Authority in F.E. Warren AFB. This remedy places the victim, the non-member bargaining unit employee, in the position the employee would have been had the union not treated the employee disparately. By undoing the effects of the unfair labor practice, the remedy effectuates the policies of the Statute and contributes to the deterrence of future violative conduct. Moreover, such a remedy is not contrary to any law or public policy. Thus, the Regions should continue to seek status quo and make-whole remedies in those duty of fair representation situations where, but for the violation, unit employees would have been treated the same as unit employees and would have received benefits concerning conditions of employment.

C. Office of the General Counsel Guidance When the Duty of Fair Representation Violation Concerns a Matter Which Would Have Been Decided Under The Negotiated Grievance Procedure But For The Duty of Fair Representation Violation By The Union.
1. Types of Disputes

These duty of fair representation violations typically involve situations where the union does not properly represent an employee in a dispute with the agency. The union's violation has precluded the employee(s) from having the underlying dispute with the agency decided under the negotiated grievance procedure. These type of situations can arise from discrimination based on union membership as well as when union membership is not a factor.
In these types of situations, the dispute between the employee and the agency is based on a contractual right and seldom concerns statutory rights that may be pursued by the employee against the agency through the unfair labor practice process. As such, the union's violation often involves either the failure to file a timely grievance or failure to properly process a grievance. When the result of the union's violation of its duty of fair representation leaves the employee with no process to pursue the dispute with the agency because the grievance procedure cannot be invoked because of timeliness or because it already has been improperly pursued, the issue becomes what remedy for the duty of fair representation is appropriate.
2.Initially, The Union Should Be Ordered To Seek To Process The Grievance

In such situations, the Regions should continue to seek an order requiring the union to request the agency to process a grievance, even if untimely.If the agency agrees, the union is required to process the grievance in accordance with its duty of fair representation. The employee is therefore placed in the same position as if the violation had not occurred since the employee's dispute with the agency will be processed as it would have been processed absent the violation. This is similar to those cases where an agency discriminates against an employee for engaging in protected activity.

3. When The Merits of the Grievance Cannot Be Decided Under the Negotiated Grievance Procedure

However, if the agency refuses to process an untimely grievance or to reprocess a grievance, the issue remains as to how to place the affected employee in the same situation as if there had been no violation. As noted earlier in this memorandum, the finding of a violation of the duty of fair representation does not require a finding that the underlying dispute which motivated the employee to seek union assistance was meritorious. However, the issue of appropriate remedy in these type of circumstances where the grievance cannot be processed does require an exploration of what effect, if any, should be given to whether the employee's dispute with the agency was meritorious.
a. The Impact of the Merits of the Underlying Grievance

The Authority has addressed this issue in only a few early cases, all of which involved a known monetary sum (assuming the grievance was meritorious) and none of which contained a complete analysis of the remedy issue.Thus, "Authority case law on this issue is largely undeveloped."
An examination of these decisions and of similar situations which have arisen under the National Labor Relations Act (NLRA) reveals that the merits of the underlying dispute between the employee and the agency must be afforded a forum for resolution, and that the forum should be the unfair labor practice procedure. Thus, in my view, the union should be given the opportunity to avoid a make-whole order as a duty of fair representation remedy by being provided the opportunity to contest whether the underlying dispute between the employee and the agency was meritorious. This approach is consistent with that utilized in the private sector. Accordingly, the Authority, in determining the appropriate remedy for a duty of fair representation violation, should decide if the underlying dispute was meritorious. Thus, contrary to earlier Authority precedent,
I am of the view that the merits of the underlying grievance must be addressed prior to any make-whole order against the union.
b. The Burden of Proof on the Merits of the Underlying Grievance

The issue remains, however, whether the union should carry the burden to establish that the underlying dispute was non- meritorious or whether the General Counsel should bear the burden of establishing that the underlying dispute had merit.Thus,there are two distinct remedial approaches when a violation of the duty of fair representation has been found and the agency does not accede to the union's request to process the grievance:
Option 1: The burden is on the union to establish, either during the investigation, at the unfair labor practice hearing or in subsequent compliance proceedings, that the underlying grievance had no merit.Absent this determination, the union would be required to make the employee whole; or

Option 2: The burden is on the General Counsel to establish that the underlying grievance was meritorious in order to obtain back pay from a union for violating its duty of fair representation.
Under either view above, regardless of whether the General Counsel bears the burden of proving that the grievance was meritorious or the respondent union bears the burden of proving that the grievance was not meritorious, the Authority would still have to make the determination as to whether the evidence establishes that the underlying grievance had merit under the contract prior to issuing a make whole order. Thus, the only issue is whether the General Counsel or the respondent union should bear that burden.
In the private sector, the NLRB currently follows the first approach. In Mack-Wayne, the NLRB modified its provisional make- whole remedy and allowed the union the opportunity to avoid a make-whole order by establishing that the underlying dispute had no merit. The NLRB, however, places that burden on the union (not on the General Counsel) and follows this decisional analysis:
1). After establishing a duty of fair representation violation, the General Counsel has the initial burden of establishing a nexus between the union's unlawful conduct and the remedy; i.e., that the employee's grievance was not clearly frivolous.

2). If the General Counsel establishes that nexus, the burden shifts to the union to establish that the grievance was not meritorious. The union has the option of litigating the merits of the grievance at either the unfair labor practice hearing or at the compliance stage.

The Board has continued to follow the rationale of Mack-Wayne.
c. Office of the General Counsel Guidance
I am of the view that the second approach is most consistent with the remedial purposes and polices of the Statute as interpreted by the Authority. I agree that the merit of the underlying grievance is paramount prior to seeking a make-whole order from the union. However, I am of the view that the better approach is for the General Counsel not to seek such a remedy unless the evidence establishes the merits of that underlying grievance. To require the union to make employees whole when it has not been established that the unfair labor practice was the direct reason why those employees had suffered a loss would not be consistent with those remedial objectives outlined by the Authority in F.E. Warren AFB. The alternative approach (allowing employees to be made whole without establishing that the underlying grievance was meritorious) would not be consistent with the Authority goal of recreating the conditions and relationships that would have been in existence had there been no unfair labor practice. Rather, that appraoch would open the potential for speculative damages since the failure of the union to establish that the grievance did not have merit is quite different from requiring the General Counsel to establish that the grievance had merit. This shifting of the burden of proof, in my view, does not effectuate the policies of the Statute. Although it may contribute to the deterrence of future violative conduct, it would be placing a heavier burden on the respondent union than is placed on other respondents in other unfair labor practice situations. For example, in determining the appropriate remedy in cases alleging discrimination based on protected activity or unilateral changes, the burden is on the General Counsel to establish that the requirements of the Back Pay Act have been met. Thus, in my view, the Regions should seek a make-whole order from a union which has violated its duty of fair representation by failing to properly process a grievance only when it can be established that the underlying grievance was meritorious. I find this approach more consistent with the objectives that an unfair labor practice should serve and for these additional reasons:
1). The primary remedial goal is to return the parties to their pre-unfair labor practice posture and to have the employee's grievance considered pursuant to the agreed- upon procedure. In that procedure, the burden is on the grievant to establish the merit of the claim. If this process is not available, the unfair labor practice procedure is the only procedure to make that determination. In my view, the General Counsel should bear that burden just as the grievant bears that burden in the negotiated grievance procedure to prove the merit of the underlying grievance prior to a make whole and back pay order.

2). The determination as to which party, the General Counsel or the union, bears the burden does not alter the fact that the Authority ultimately will decide the merit of the underlying dispute. Thus, even under the first approach, the Regional Directors (on behalf of the General Counsel) will be evaluating the merits of the grievance in deciding whether to seek a make-whole order, and the Authority will be making the ultimate determination when fashioning the remedy.Requiring the union to bear the burden does not disengage the Regions or the Authority from involvement in interpreting contracts.

3). Seeking a make-whole remedy without establishing that the grievance is meritorious, in essence, could place the employee in a better position than if the union had fulfilled its duty of fair representation. In other words, the employee would receive a remedy for the underlying grievance which may have been determined to be non-meritorious had the union properly processed the matter. In my view, this is inconsistent with the remedial purposes of the Statute as pronounced by the Authority.

4). This approach is consistent with that taken by the Authority in analogous situations under other provisions of the Statute. For example, the Authority will not order a make-whole remedy for a violation of the right to representation at an investigatory examination under section 7114(a)(2)(B) of the Statute merely because an employee was disciplined as a result of information gained at the unlawful examination.
5). This approach also is consistent with that taken by the Federal courts in an action under section 301 of the Labor Management Relations Act. In those actions, the burden is on the employee to establish that the grievance is meritorious in order to obtain backpay from a union for failing to properly represent the grievant. This approach also is consistent with the circuit courts which have addressed this issue under the NLRA.

6). During the investigation of the charge, the Regions are capable of adducing evidence concerning the appropriate remedy in a duty of fair representation case. In F.E. Warren AFB, the Authority indicated that it is the General Counsel's responsibility to produce evidence as to why requested remedies meet the broad objectives that an unfair labor practice remedy should serve. I see no reason why remedies for duty of fair representation violations should be treated differently than remedies for other types of unfair labor practices.

PART III.When Non-Members Views Must Be Considered By The Union
A. Situations When The Union Has Not Been Given The Authority To Establish A Condition Of Employment

An exclusive representative need not consider the views of non-member bargaining unit employees when determining the position the union will take in negotiations with an agency. The union may exclude non-members from having any input in the formulation of the union proposals. The formulation of bargaining proposals, standing alone, does not decide what will be the ultimate condition of employment. The union must still negotiate its proposals with the agency. The decision on what the union proposal will be does not settle what the ultimate condition of employment will be. Thus, an exclusive representative may lawfully exclude non-members from participation in votes and discussions formulating bargaining proposals.

B. Situations When The Union Has Been Given The Authority By The Agency To Establish A Condition Of Employment

However, a union may not exclude non-members from participating in decisions in situations where the union has been given the authority to establish that condition of employment. For example, if an agency delegates to the union the decision-making authority over a condition of employment, the union must treat members and non-members the same in determining the establishment of that condition of employment.Thus, if the union decides to poll employees to determine that condition of employment, the union must poll all unit employees, including non-members.

The key factor, therefore, is whether the union has the discretion and authority to determine the condition of employment without further negotiation with the agency. For example, if the parties have negotiated a contract clause which allows the union to establish a condition of employment without further negotiations with the agency, the union must treat all unit employees the same when formulating its decision. Thus, if the union decides to conduct a poll, all employees must be polled and non-members responses must be treated equally.If the union decides to conduct a meeting, all employees must be allowed to attend the meeting and participate to the same extent regardless of their union membership. On the other hand, if the union engages in negotiations with the agency to establish the condition of employment, the union need not consider non-members' views.

PART IV. AGENCY DISCUSSIONS WITH EMPLOYEES ON DUTY OF FAIR REPRESENTATION MATTERS

A. Standards Governing Agency Actions When An Employee Inquires About Duty Of Fair Representation Matters

In my view, an agency and its representatives' conduct concerning a dispute between an employee and an exclusive representative is governed by the same principles and precedent that govern all agency actions under the Statute. Thus, an agency may not interfere with, restrain or coerce an employee in the exercise of the section 7102 right to form, join or assist a labor organization or to refrain from such activity. Any challenged agency conduct should be evaluated under the same tests currently used to determine if an agency violated section 7116(a)(1) of the Statute.
Just as an agency must remain neutral during an election campaign by a labor organization seeking exclusive recognition or by a group of employees seeking the decertification of an exclusive representative, an agency must remain neutral in any dispute between an employee and the exclusive representative. The failure to do so would be an unfair labor practice.

B. Permitted and Prohibited Agency Actions When An Employee Inquires About Duty Of Fair Representation Matters

Based on these standards, in my view, an agency would commit an unfair labor practice if it encouraged employees to file duty of fair representation unfair labor practice charges against an exclusive representative or presented to an employee an evaluation of the merits of an employee's dispute against the exclusive representative. These actions are no different than if an agency encouraged an employee to vote against exclusive representation or presented its views to unit employees on which slate of union candidates for office the agency believes would best fulfill the union's representational responsibilities.

Agency officials, however, upon inquiry from an employee, should be permitted to direct that employee to the Authority's Regional Offices to obtain information about the duty of fair representation and filing procedures. Similarly, an agency should treat distribution of blank unfair labor practice charge forms against a labor organization (CO charge forms) in the same manner that it distributes blank unfair labor practice charge forms against the agency itself (CA charge forms).Thus, in my view, an agency that disparately provides CO charge forms, but does not provide CA charge forms, interferes with section 7102 rights.Similarly, an agency that provides procedural advice to employees about filing a CO charge but does not provide similar advice to employees about filing a CA charge, would commit an unfair labor practice.

C. Agencies May File Unfair Labor Practice Charges Alleging a Violation of the Duty of Fair Representation