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 Any chance that the guys who copy and paste entire webpages could stop doing this?
It is annoying to have to scroll through their posts. While I no longer bother to read any of these posts,  as they rarely seem to have anything to do with what was originally being discussed and seem to be chosen for their length as opposed to content.
I would ask that if you find yourself copying and pasting something which is longer than the entire contents of blogspot,  you simply refrain.
 There is a reason people post links rather than the entire webpage.
And if you insist on posting the entire page, can you do it as one post? It is annoying to go to a post which has apparently 12 new replies to find that it is only one reply broken into 12 long sections.
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Re: spamming

iamlistman@yahoo.com
GOTTA EDUMACATE SORRY !
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Re: spamming

iamlistman@yahoo.com
In reply to this post by spam
While I no longer bother to read any of these posts,  as they rarely seem to have anything to do with what was originally being discussed

DON'T READ EM FOR ALL I CARE

copying and pasting something which is longer than the entire contents of blogspot,

HAVEN'T REACHED THAT YET SO WHY COMPLAIN

There is a reason people post links rather than the entire webpage.
IF THAT WERE THE CASE, WE WOULDN'T BE WHERE WE ARE

It is annoying to go to a post which has apparently 12 new replies to find that it is only one reply broken into 12 long sections.

HOW MANY TIMES DOES IT TAKE TO MAKE YOU WAKE UP, MORE THAN 12 I'M THINKING.
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spam
There is a difference between posting to inform and posting to clog up a website, even in responding to a post asking posters to try and keep their replies limited to one reply, you have already posted two replies to the same post. and yes, you usually manage to post longer replies to posts than is taken up by all of Johns posts for a month.    If I cannot answer a simple question in less than 30,000 words, I take it for granted that I cannot answer the question. this is one of your posts;: Jan 22, 2011; 06:32amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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97 posts TED THIS IS FOR YOU;

Faced this a number of times and is currently part of a combined effort on two seperate fronts at the board which if successful, provided its not buried there, goes to the heart of this issue.

Ted you said:   Arbitration - by chosen insiders which the UBC hand picks is the chosen way to go - as they can then control the decisions & clearly use it as a means to "run the clock", that being the stautory 6-Month Timieline to file charges for Violations of the NLRA.


Can I prove this part of the act was violated?
Well, -If a mob paid delegate who's voice on the NLRB issue at hand was transmitted by a slew of racketeers at the council by an act of willful negligence thats one thing.

If those racketeers were the final word as to a grievance going to arbitration, therfore in a one to two month period of time this decision is reached, well  within the six months AS IT IS SUPPOSED TO TAKE PLACE, NOT YEARS LATER- WALTER MACK CRITICIZED THIS  )
I ask what would they do with the process of mutual aid & protection if they never did act on it by the time the statute ran out ? THIS I BELIEVE IS WHERE YOUR COMING FROM, Please clarify me if I'm wrong.
 

UBC & NYCDCC: AT ONCE

WE DEMAND AT ONCE TO BE AFFORDED PROTECTION BY OUR REPRESENTATION IN THE UNAMBIGIOUS RULES & PROCEDURES AS EXEMPLIFIED BELOW BY OUR BRETEREN OF IBEW.  CLEAR & CONVINCING ACTION THAT MOBSTERS OR MEGELOMANIACS LIKE McCARRON CAN'T RAILROAD THE NLRA WHEN MEMBERS UNDER SECTION 7 EXERCISE PROTECTED ACTIVITIES FOR MUTUAL AID & PROTECTION.

SPELL IT OUT !  NOT JUST WHEN TRAINING STEWARDS AND CASUALLY BRINGING UP THE SUBJECT OF WEINGARTEN. THE UBC & NYCDCC MUST ACCOMPLISH DUE NOTIFICATION TO THE MEMBERSHIP WHEREIN UNION LAWYERS, GRIEVANCE COMMITTEES, BUSINESS MANAGERS & REPS, REGIONAL DIRECTORS, THE I.G.  AND ALL WHO'S DIRTY LITTLE HANDS TOUCH THE PROCESS ARE PROTECTING THE MEMBERSHIP AND NOT THE COMPANY.  ONLY WHEN A MEMBER IS DEAD WRONG IN FILING CHARGES MUST YOU KEEP HIM FROM JUSTICE.

The UBC & councils must tell membership: In order to best protect yourself as a member and the Union itself from CBA violations of any type with clear & hard evdence the utilization of the NLRA's content will be ensured.

No punting here: THE PROCCESS WAS MANIPULATED BY UNION OFFICIALS AND A LAW FIRM.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX


REAL SITE GUYS, CHK IT OUT




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listman  Jan 22, 2011; 06:41amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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97 posts In reply to this post by Ted
In following:

Anyone who attempted to go through the channels at either a crime laden local or where the racketeering kings lived and was denied this ability.     Whether you've been to the board or shot down at stage one two or three of a grievance OR MANIPULATED IN ANY SUCH FORM AS BEING HEARD " SHUT THE FUCK UP AND BE LUCKY YOUR WORKING "  all I have to say is and I quote the NLRA,
" IT WILL BE AN UNFAIR LABOR PRACTICE TO "......................................FUCK US.  

listman  Jan 22, 2011; 06:55amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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97 posts In reply to this post by Ted
I must, I simply must do what I can to inform therefore the lenght of the post.
Doesn't seem people go to the links for if they did they's know what needs to be changed and what needs to be enforced.  So here goes,


January 27, 1997


MEMORANDUM
TO: Regional Directors
FROM: Joe Swerdzewski, General Counsel
SUBJECT: The Duty of Fair Representation
This memorandum discusses issues arising from the duty of fair representation under the Federal Service Labor Management Relations Statute for labor organizations serving as exclusive representatives of bargaining unit employees. This memorandum will serve as guidance to the Regional Directors in investigating, resolving, litigating and settling unfair labor practice charges concerning the duty of fair representation. It is being made available to the public to assist individuals, unions and agencies in avoiding these disputes. This guidance reflects my views as the General Counsel of the Federal Labor Relations Authority and does not constitute an interpretation by the three member Authority.



Duty of Fair Representation Allegations Increasing
in the Federal Sector


The number of unfair labor practice charges filed against labor organizations compared to the total number of unfair labor practice charges filed has increased in the past three years from approximately 3.5 % of the total number of charges filed in Fiscal Year 1993 to 9.2 % of the total number of charges filed in Fiscal Year 1996. At the same time, the number of unfair labor practice charges filed against agencies has decreased over the last three years from approximately 96.5 % of the total number of charges filed in Fiscal Year 1993 to 90.8 % of the total number of charges filed in Fiscal Year 1996. Thus, while the number of charges filed against agencies has dropped in the last three years by 27 %, the number of unfair labor practice charges filed against labor organizations has increased 89 %.
The vast majority of the charges filed against labor organizations allege violations of the duty of fair representation. These types of charges usually involve situations where an employee has a dispute with the agency and claims that the exclusive bargaining representative has failed to fulfill its statutory duty to represent the employee in that dispute. These types of issues normally involve individual employee concerns which adversely affect an employee, rather than the institutional concerns that arise in bargaining disputes, and are often accompanied by strong positions and personal emotions. Duty of fair representation issues also can involve situations where non-union members claim that they are being treated differently from union members by the manner in which the union administers a provision of a collective bargaining agreement or some other condition of employment over which the union has exclusive control.
The legal tests established by the Authority for determining whether the duty of fair representation under the Statute has been violated by a union require a complete examination of the totality of the circumstances. For example, there may be situations where a union commits an unfair labor practice when it treats union members more favorably than non-union members in the bargaining unit. There also may be situations, however, where a union does not commit an unfair labor practice when it treats union members more favorably than non-union members in the bargaining unit. A determination must be made as to whether the matter was one grounded in the union's role as exclusive representative. Further, although a labor organization may have been negligent and/or inept in its dealings on behalf of an employee grievant, that evidence standing alone is normally not sufficient to sustain an unfair labor practice. Moreover, even where a duty of fair representation violation has been found, the case law still is being developed to seek effective remedies. In addition, agencies often become embroiled in these employee/union disputes, not only because the agency may be involved in the underlying dispute with the employee, but because the employee may have requested the agency for assistance in championing the employee's dispute with the union. In view of the increased number of duty of fair representation unfair labor practice charges and the difficult issues that those charges raise, I have decided to issue this guidance memorandum to the Regional Directors, and to make it available to the public, to set forth my views on these important issues.



Issues Addressed In This Memorandum


This memorandum is divided into five parts. Part I discusses the legal tests established by the Authority for determining whether the duty of fair representation has been violated and highlights the types of factors that the Authority has relied upon in making its determinations. Part II explores the types of remedies which the Authority has ordered and which the Regions may seek when a Regional Director determines that the duty of fair representation has been violated. Part III discusses actions which agencies may and may not take when an employee seeks assistance in the employee's dealing with an exclusive representative. Part IV explores when a union may consider only the views of members when taking a position on a condition of employment to present to an agency and when a union must treat members and non-members the same when deciding on what a position to take. Part V provides a discussion of the relationship between the duty of fair representation and the selection of employees for work teams and awarding work teams as a group. An appendix contains a summary of the duty of fair representation cases that the Authority has decided.



PART I. THE DUTY OF FAIR REPRESENTATION UNDER THE STATUTE



A. The Section 7114(a)(1) Duty of Fair Representation
Section 7114(a)(1) of the Statute provides:
§ 7114. Representation rights and duties.

(a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.

The obligation set forth in the second sentence of section 7114(a)(1) of the Statute is commonly referred to as an exclusive representative's duty of fair representation. The Authority has interpreted this section to require an exclusive representative to represent the interests of all bargaining unit employees: 1) without discrimination; and 2) without regard to whether the employee is a dues paying member of the exclusive representative. The duty of fair representation is grounded in the principle that when a union attains the status of exclusive representative, it must use that power to fairly and equally represent all members of the unit.
I will first discuss that aspect of the duty of fair representation which involves disparate treatment by a union of a unit employee based on union membership.
B. Authority Test When Employees are Treated Differently Based on Union Membership
1. Legal Test
This aspect of the duty of fair representation usually concerns situations where a non-dues paying bargaining unit employee claims disparate treatment from that received by dues paying union members. In other words, an employee alleges he/she was treated differently just because they were not union members.

The current test to determine if a union has discriminated against a bargaining unit employee based on union membership is set forth in Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina, 28 FLRA No. 118, 28 FLRA 908 (1987) (Fort Bragg).
Basically, an exclusive representative may not treat non-union members differently than dues paying union members in matters over which the union has exclusive control. Thus, the duty not to discriminate based on union membership attaches only when an employee has no right to choose a representative other than the union to represent the employee in the underlying dispute. In situations where an employee may choose a representative other than the exclusive representative, such as in a proceeding before the Merit Systems Protection Board or in litigation in a U.S. District Court, the exclusive representative may discriminate between dues paying members and non-members and thus may lawfully treat employees differently on the basis of whether or not they pay dues and belong to the union. Since the union in such situations does not have exclusive representation authority, the employees who are not union members may protect their interests by selecting representation from other sources. Thus, the Authority has held that an exclusive representative's responsibilities will be analyzed "in the context of whether or not the union's representational activities on behalf of employees are grounded in the union's authority to act as exclusive representative."
The same responsibility will not be extended to situations where the union is not acting as the exclusive representative, even if
"the union's activities relate to conditions of employment of unit employees." This approach is consistent with that taken in the private sector.

Thus, when a charge alleges that an exclusive representative has discriminated against a bargaining unit member because that unit employee does not belong to the union, it must initially be determined whether the activities at issue were undertaken by the labor organization in its role as the exclusive representative.

2. Decisional Analysis
In sum, when faced with an allegation that an exclusive representative has violated its duty of fair representation by discrimination based on union membership, a Regional Director will only issue a complaint, absent settlement, when the evidence supports the following findings:
1). The matter which is the subject of the allegation is grounded in the union's role as the exclusive representative; i.e.,

a). the matter concerns a topic over which the union has exclusive control; and

b). the employee had no other choice for representation other than the union; and

2). the union treated the employee differently from dues paying union members.
3. Factors to Consider

Based on this precedent, the Regions should explore the following factors when determining whether discrimination based on union membership occurred:
1). Whether the matter which is the subject of the allegation is based on the union's role as the exclusive representative.

2). Whether the matter which is the subject of the allegation concerns a topic over which the union has exclusive control.
3). Whether the matter which is the subject of the allegation was established through negotiations and is contained in a collective bargaining agreement.

4). Whether the employee had another choice, other than the union, for representation.

5). Whether the union treated a non-union unit employee differently from dues paying union members.
C. Authority Test for Discrimination When Union Membership Is Not A Factor

1. Legal Test
This aspect of the duty of fair representation usually concerns a situation where either a union member or a non-member in the bargaining unit claims that the union was ineffective in its attempt to represent an employee in a dispute with an agency. The test for this form of discrimination was first set forth in National Federation of Federal Employees, Local 1453, 23 FLRA No. 92, 23 FLRA 686, 691 (1986) (NFFE):
[W[here union membership is not a factor, the standard for determining whether an exclusive representative has breached its duty of fair representation under section 7114(a)(1) is whether the union deliberately and unjustifiably treated one or more bargaining unit employees different from other employees in the unit. That is, the union's action must amount to more than mere negligence or ineptitude, the union must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee.

In these situations, the fact that the union was negligent or inept is insufficient to find an unfair labor practice. Rather, the totality of the circumstances must be examined to determine if the union's conduct constituted the type of impropriety deemed violative of the section 7114(a)(1) duty of fair representation.
2. Decisional Analysis
In sum, when faced with an allegation that an exclusive representative has violated its duty of fair representation when union membership was not a factor, a Regional Director will only
issue a complaint, absent settlement, when the evidence supports the following findings:

1). The union acted in an arbitrary manner and/or in bad faith; i.e.,

a). the union's conduct amounted to more than mere negligence or ineptitude, but rather was outside the range of reasonableness, and

b). that treatment was deliberate and unjustified; and
2). the union's action resulted in the treatment of a unit employee different from other unit employees.

3. Factors to Consider
Based on this precedent, the Regions should explore the following factors when determining whether there has been a violation of the duty of fair represention when union membership is not a factor:
1). Whether the union could explain its conduct.
2). Whether the situation left the employee with no venue to obtain a hearing/remedy for the underlying dispute.

3). Whether the union followed or deviated from its past practices in the manner in which it processed the dispute and dealt with the employee.
D. Requirement That The Matter Be Grounded In The Union's Role As Exclusive Representative When There Is Discrimination And Union Membership Is Not A Factor.
As noted above, when discussing the duty of fair representation when union membership is alleged to be a consideration, the Authority requires the union's conduct to be grounded in the union's role as exclusive representative. Thus, where an employee has other choices for representation, the union lawfully may treat members different from non-members with respect to representation by the union. For example, the union may offer representation to members, and not to non-members, in proceedings before the Merit System Protection Board, and may charge members different fees for representation in a U.S. District Court in a matter under another Statute, such as the Fair Labor Standards Act.
The Authority, however, has never found that a union may act in an arbitrary and capricious manner when it undertakes to represent an employee in a situation involving a condition of employment where the union was under no obligation to represent the employee because the matter was not grounded in the union's role as exclusive representative. For example, the union undertakes to represent an employee before the Merit System Protection Board but engages in conduct that meets the NFFE standard of arbitrariness and bad faith.
In my view, the Authority should be afforded an opportunity to decide if a union violates its duty of fair representation when it undertakes to represent an employee in a matter concerning a condition of employment where it had no duty to do so because the employee had other choices for representation, but the union's conduct in performing that service amounts to discrimination under the standard set forth in NFFE. Indeed, in a recent decision the Authority has indicated in another context that once a union undertakes representational activity, the union serves as the exclusive representative and not as a personal representative. Under this theory, if the union is entitled to the benefits as the exclusive representation, such as the right to information under section 7114(b)(4) of the Statute, the union may also be required to adhere to the standard set forth in NFFE concerning the duty of fair representation when membership is not a consideration.
To afford the Authority with an opportunity to clarify this area of the law, the Regions should initially determine in all duty of fair representation cases where union membership is not a consideration whether the conduct violates the NFFE standard. If the Region makes such a finding, but further determines that the matter at issue is not grounded in the union's role of exclusive representative but nonetheless concerns a condition of employment, the Regions should submit the case for case handling advice.

PART II. Remedies for Duty of Fair Representation Violations

A. Objectives That An Unfair Labor Practice Remedy Should Serve.

Under sections 7105(g)(3) and 7118(a)(7)(D) the Authority has a broad range of remedial powers. These powers, however, are not without limits. In F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 149, 160 (1996)(F.E. Warren AFB), the Authority set forth the broad objectives that an unfair labor practice remedy should serve. The Authority concluded that remedies for unfair labor practices should:
1) Be designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.

2) Effectuate the policies of the Statute.

3) Contribute to the deterrence of future violative conduct.

4) Not be contrary to law or public policy.
Accordingly, any remedy sought in a duty of fair representation unfair labor practice case should be consistent with these stated objectives.
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



Continued…..
 

listman  Jan 22, 2011; 06:56amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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97 posts In reply to this post by Ted
Continued from previous page……

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



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listman  Jan 22, 2011; 06:57amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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C. Agencies May File Unfair Labor Practice Charges Alleging a Violation of the Duty of Fair Representation

An agency may file an unfair labor practice charge against a labor organization alleging a violation of the duty of fair representation.Section 7118(a)(1) of the Statute provides that any "person" may file a charge alleging a violation of the Statute.Section 7103(a)(1) defines "person" as an individual, labor organization or agency. The individual filing an unfair labor practice charge need not be the alleged aggrieved party. For example, a charge may be filed by any person, even, for example, if the person signing the charge against an agency is a manager. Thus, an agency has standing to file an unfair labor practice charge against a union for the alleged violation of an individual's rights. Indeed, many of the cases discussed in Part II concerning union discrimination on the basis of union membership were filed by agencies.
A person or party filing a charge, however, must be prepared to fully participate in the Region's investigation of that charge, including the presentation of witnesses, documentation and other evidence to substantiate the claims in the charge and the remedy sought. Moreover, an agency that attempts to present unit employees as witnesses to support a duty of fair representation charge filed against the exclusive representative by the agency is governed by the doctrine requiring the agency not to interfere with, restrain or coerce an employee in the exercise of protected rights. For example, an agency that files a charge alleging a duty of fair representation violation against a labor organization and then takes steps to seek out and convince employees to provide evidence against the labor organization, in my view, would commit an unfair labor practice. An agency, however, could present evidence within its control to support its charge without soliciting assistance from unit employees.
PART V. The Duty of Fair Representation and Work Groups

On August 8, 1995, I issued a memorandum to the Regional Directors, available to the public, entitled "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employee for Work Groups." The guidance memorandum discussed the parties' rights and obligations under the Statute related to employee-management work groups dedicated to advancing an agency's mission and improving customer service. The memorandum focused on the legal issues surrounding "what" the work group is doing and "who" participates in the group.
In particular, a portion of that memorandum discussed issues concerning criteria for selecting employees to participate on work groups, the capacity in which those employees serve (for example, as union representatives or as employees who are assigned work) and the consequences which flow from those designations (such as awards and appraisals). The next portion of this memorandum addresses the relationship between these work groups and the duty of fair representation.

A. Union Representatives on a Work Group Owe a Duty of Fair Representation

When employees are selected to work groups by the exclusive representative and serve as union representatives on those work group, those union representatives owe a duty of fair representation to the bargaining unit. As discussed in the work group guidance, the work groups serve as an extension of the collective bargaining relationship and an alternative means of communication between the union as the exclusive representative and the agency. Since the employees are serving as union representatives, I am of the view that the statutory duty of fair representation attaches to their activities, just as if those representatives were negotiating a contract or processing a grievance. Although the union, as the exclusive representative, remains empowered to select its own representatives and may chose to only select union members, although not required to do so, those representatives must not violate the duty of fair representation while representing the interest of the entire bargaining unit.
B. Evaluating and Awarding Union Representatives on a Work Group Based on Individual Performance.

In the work group guidance memorandum, I also stated my view that union representatives may not be disciplined for their performance as a union representative of the union on a work group. Similarly, I stated my view that union representatives may not be evaluated for their performance as a representative on a work group, either favorably or adversely. Since union representatives cannot be evaluated on their performance, I further stated my view that union representatives may not be rewarded for their participation on the work group. Since performance awards are based on an evaluation of an employee's individual performance, and employees serving as union representatives may not be evaluated on their individual performance as union representatives, for the reasons and legal analysis set forth in the work group guidance memorandum, I continue to be of the view that rewarding, disciplining or evaluating those union representatives' individual participation on a work group would be an unfair labor practice.

C. Rewarding Work Groups, Which Includes Union Representatives, Based on Group Performance

The discussion in the work group guidance memorandum referred to above focused on awards based on individual group members' performance. Since employees who serve as union representatives cannot be evaluated positively or negatively on their contribution to the work group since they're serving as union representatives, any award for that participation would be unlawful.
The team guidance memorandum, however, also provided the parties with models for alternatives methods to establish and implement work groups. One model discussed provides for union representatives selected by the union (who may be union or non-union members), agency representatives selected by the agency, and other bargaining unit employees selected by the agency, with or without union input, where union membership was not a factor in the selection process. These employees would serve on the work group pursuant to the assignment of work.
The issue has arisen as to whether it also would be an unfair labor practice if this type of work group were to receive an award based on the groups' collective performance, without reference to the performance of individual members. In such circumstances, the employee serving as a union representative would not be rewarded for his/her contribution, but rather would be rewarded for being part of a work group. This particular circumstance was not addressed in the work group guidance memo.
It could be argued that since the union representative's individual performance is not being evaluated, and since employees not selected to serve as union representatives also have an opportunity to serve on these work groups and thus to qualify for a group award (as well as individual awards since these assigned employees may be evaluated and rewarded pursuant to the assignment of work), the issuance of a group award pursuant to Government-wide regulations would not violate the Statute's prohibitions of interfering with protected activity or the right to refrain from protected activity. On the other hand, it also could be argued that union representatives are still serving in that union capacity and are still being rewarded for their contribution to the group in that representational capacity. Since this particular type of situation raises novel issues which were not addressed in the work team guidance memorandum, the Regional Directors are instructed to submit cases for advice when they make the following determinations:
1). A work group receives an award for the groups' work product as provided for under Government-wide regulations.

2). The award is given to all members of the work group without recognition for individual contributions.

3). There are employees on the work group serving in the role as union representatives who had been selected by the union.

4). There also are other bargaining unit employees in the work group who do not serve as union representatives and whose union membership was not a factor in their selection for the work group.
Many of the issues concerning an exclusive representative's duty of fair representation have yet to be explored under the Statute. Please contact the Office of the General Counsel if any issues arise concerning the duty of fair representation or if there are any questions concerning the views set forth in this guidance memorandum.



Duty of Fair Representation Cases Based on Union Membership


These are some examples of cases where the Authority has determined whether or not an exclusive representative violated its duty of fair representation by treating non-union unit employees differently from unit employees that were dues paying union members:
1). a). Case: Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina (Fort Bragg Department of Defense Dependents Schools, Fort Bragg, North Carolina), 28 FLRA No. 118, 28 FLRA 908 (1987).

b). Conduct: The union required non-dues paying bargaining unit employees to pay a fee to be included in a lawsuit concerning the employment status of unit employees.

c). Result: No duty of fair representation violation.

d). Critical factors:
- The union's representational activities on behalf of the employees were not grounded in the union's authority to act as exclusive representative.

- The union was not acting as the exclusive representative even though the union's activities related to conditions of employment of unit employees.

- Non-dues paying members of the bargaining unit could have retained counsel and filed a similar lawsuit.
- The lawsuit was not related to enforcement of the parties' collective bargaining agreement.
2). a). Case: American Federation of Government Employees, AFL-CIO (Social Security Administration), 30 FLRA No. 9, 30 FLRA 35 (1987).

b). Conduct: The union charged non-union unit employees higher fees than union members to participate in a civil action law suit seeking night differential pay.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The institution of the lawsuit was not integrally related to a pending grievance.

- The civil action was a process available to all employees and was not a process in the sole control of the union.

- The union's undertaking was a benefit of union membership and not a negotiated entitlement. 3). a). Case: Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico (Bette L. Benber, Elizabeth Pawson and Antoinette Torres De Perez), 36 FLRA No. 79, 36 FLRA 776 (1990).

b). Conduct: The union treated members and non-members differently in administering an insurance plan for dental/optical benefits which it administered under the terms of the collective bargaining agreement by requiring non-members to pay a $60 yearly administrative fee to participate.

c). Result: Duty of fair representation violation.

d). Critical factors:

- The dental/optical plan was arrived at through collective bargaining.

- The union's authority to administer the plan also was arrived at through collective bargaining.

- The plan constituted a contractual condition of employment applicable to all unit employees.

e). Remedy: The union was required to cease the requirement that non-members pay an administrative fee, refund all fees collected from non-members, allow non-members to participate in the plan in the same manner as members, and prepare and distribute to all unit employees a pamphlet explaining their rights to participate in the plan and have administrative fees refunded. 4). a). Case: Department of the Army, Watervliet Arsenal, Watervliet, New York , 39 FLRA No. 24, 39 FLRA 318 (1986).

b). Conduct: The union negotiated an agreement that provided leave procedures for a union-sponsored asbestos testing program where unit employees who were union members could be tested on excused absences while unit employees who were not dues paying members could only participate during off-duty hours.

c). Result: Duty of fair representation violation. The activity also was found to have violated the Statute.
d). Critical factors: The process was a negotiated condition of employment applicable to all unit employees.

e). Remedy: The activity and the union were ordered to allow non-members to participate in a make-up testing program on excused absence. The activity was further ordered to restore any leave used to attend the testing.

5). a). Case: U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

b). Conduct: The union distributed the settlement of a grievance on environmental differential pay that favored union officers.

c). Result: Duty of fair representation violation.
The activity also violated the Statute by its actions in connection with the distribution of environmental differential pay.

d). Critical factors: The settlement authorized the union to divide the payments.

e). Remedy: The union and the activity were required to recalculate together the distributions and were jointly and severally liable for making whole those employees who suffered a reduction in environmental differential pay as a result of the unlawful distribution.
6). a). Case: American Federation of Government Employees, Local 1857, AFL-CIO (Sacramento Air Logistics Center, North Highland, California) (Eloise F. Holdahl), 46 FLRA No. 81, 46 FLRA 904 (1992).

b). Conduct: The union refused to represent a unit employee in a proposed disciplinary action because the employee was not a member of the union.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The union was not the only source of the employee's representation since an employee faced with a proposed disciplinary action is entitled to a representative of choice.

- There was no contractual obligation for the union to represent all unit employees regarding proposed disciplinary actions.

7). a). Case: U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

b). Conduct: The union's distribution of the settlement of a grievance on environmental differential pay contained numerous unexplained discrepancies.

c). Result: Violation of the duty of fair representation. The activity also violated the Statute by its actions in connection with the distribution of the pay.

d). Critical factors:

- The settlement authorized the union to divide the payments.

- The discrepancies were unexplained by the union.

- The union's actions were so far outside the wide range of reasonableness as to be irrational.

e). Remedy: The union and the activity were required to recalculate together the distributions and were jointly and severally liable for making whole those employees whose suffered a reduction in environmental differential pay as a result of the unlawful distribution.


 

listman  Jan 22, 2011; 07:02amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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Continued from previous page….

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

An agency may file an unfair labor practice charge against a labor organization alleging a violation of the duty of fair representation.Section 7118(a)(1) of the Statute provides that any "person" may file a charge alleging a violation of the Statute.Section 7103(a)(1) defines "person" as an individual, labor organization or agency. The individual filing an unfair labor practice charge need not be the alleged aggrieved party. For example, a charge may be filed by any person, even, for example, if the person signing the charge against an agency is a manager. Thus, an agency has standing to file an unfair labor practice charge against a union for the alleged violation of an individual's rights. Indeed, many of the cases discussed in Part II concerning union discrimination on the basis of union membership were filed by agencies.
A person or party filing a charge, however, must be prepared to fully participate in the Region's investigation of that charge, including the presentation of witnesses, documentation and other evidence to substantiate the claims in the charge and the remedy sought. Moreover, an agency that attempts to present unit employees as witnesses to support a duty of fair representation charge filed against the exclusive representative by the agency is governed by the doctrine requiring the agency not to interfere with, restrain or coerce an employee in the exercise of protected rights. For example, an agency that files a charge alleging a duty of fair representation violation against a labor organization and then takes steps to seek out and convince employees to provide evidence against the labor organization, in my view, would commit an unfair labor practice. An agency, however, could present evidence within its control to support its charge without soliciting assistance from unit employees.
PART V. The Duty of Fair Representation and Work Groups

On August 8, 1995, I issued a memorandum to the Regional Directors, available to the public, entitled "The Duty to Bargain Over Programs Establishing Employee Involvement and Statutory Obligations When Selecting Employee for Work Groups." The guidance memorandum discussed the parties' rights and obligations under the Statute related to employee-management work groups dedicated to advancing an agency's mission and improving customer service. The memorandum focused on the legal issues surrounding "what" the work group is doing and "who" participates in the group.
In particular, a portion of that memorandum discussed issues concerning criteria for selecting employees to participate on work groups, the capacity in which those employees serve (for example, as union representatives or as employees who are assigned work) and the consequences which flow from those designations (such as awards and appraisals). The next portion of this memorandum addresses the relationship between these work groups and the duty of fair representation.

A. Union Representatives on a Work Group Owe a Duty of Fair Representation

When employees are selected to work groups by the exclusive representative and serve as union representatives on those work group, those union representatives owe a duty of fair representation to the bargaining unit. As discussed in the work group guidance, the work groups serve as an extension of the collective bargaining relationship and an alternative means of communication between the union as the exclusive representative and the agency. Since the employees are serving as union representatives, I am of the view that the statutory duty of fair representation attaches to their activities, just as if those representatives were negotiating a contract or processing a grievance. Although the union, as the exclusive representative, remains empowered to select its own representatives and may chose to only select union members, although not required to do so, those representatives must not violate the duty of fair representation while representing the interest of the entire bargaining unit.
B. Evaluating and Awarding Union Representatives on a Work Group Based on Individual Performance.

In the work group guidance memorandum, I also stated my view that union representatives may not be disciplined for their performance as a union representative of the union on a work group. Similarly, I stated my view that union representatives may not be evaluated for their performance as a representative on a work group, either favorably or adversely. Since union representatives cannot be evaluated on their performance, I further stated my view that union representatives may not be rewarded for their participation on the work group. Since performance awards are based on an evaluation of an employee's individual performance, and employees serving as union representatives may not be evaluated on their individual performance as union representatives, for the reasons and legal analysis set forth in the work group guidance memorandum, I continue to be of the view that rewarding, disciplining or evaluating those union representatives' individual participation on a work group would be an unfair labor practice.

C. Rewarding Work Groups, Which Includes Union Representatives, Based on Group Performance

The discussion in the work group guidance memorandum referred to above focused on awards based on individual group members' performance. Since employees who serve as union representatives cannot be evaluated positively or negatively on their contribution to the work group since they're serving as union representatives, any award for that participation would be unlawful.
The team guidance memorandum, however, also provided the parties with models for alternatives methods to establish and implement work groups. One model discussed provides for union representatives selected by the union (who may be union or non-union members), agency representatives selected by the agency, and other bargaining unit employees selected by the agency, with or without union input, where union membership was not a factor in the selection process. These employees would serve on the work group pursuant to the assignment of work.
The issue has arisen as to whether it also would be an unfair labor practice if this type of work group were to receive an award based on the groups' collective performance, without reference to the performance of individual members. In such circumstances, the employee serving as a union representative would not be rewarded for his/her contribution, but rather would be rewarded for being part of a work group. This particular circumstance was not addressed in the work group guidance memo.
It could be argued that since the union representative's individual performance is not being evaluated, and since employees not selected to serve as union representatives also have an opportunity to serve on these work groups and thus to qualify for a group award (as well as individual awards since these assigned employees may be evaluated and rewarded pursuant to the assignment of work), the issuance of a group award pursuant to Government-wide regulations would not violate the Statute's prohibitions of interfering with protected activity or the right to refrain from protected activity. On the other hand, it also could be argued that union representatives are still serving in that union capacity and are still being rewarded for their contribution to the group in that representational capacity. Since this particular type of situation raises novel issues which were not addressed in the work team guidance memorandum, the Regional Directors are instructed to submit cases for advice when they make the following determinations:
1). A work group receives an award for the groups' work product as provided for under Government-wide regulations.

2). The award is given to all members of the work group without recognition for individual contributions.

3). There are employees on the work group serving in the role as union representatives who had been selected by the union.

4). There also are other bargaining unit employees in the work group who do not serve as union representatives and whose union membership was not a factor in their selection for the work group.
Many of the issues concerning an exclusive representative's duty of fair representation have yet to be explored under the Statute. Please contact the Office of the General Counsel if any issues arise concerning the duty of fair representation or if there are any questions concerning the views set forth in this guidance memorandum.



Duty of Fair Representation Cases Based on Union Membership


These are some examples of cases where the Authority has determined whether or not an exclusive representative violated its duty of fair representation by treating non-union unit employees differently from unit employees that were dues paying union members:
1). a). Case: Fort Bragg Association of Educators, National Education Association, Fort Bragg, North Carolina (Fort Bragg Department of Defense Dependents Schools, Fort Bragg, North Carolina), 28 FLRA No. 118, 28 FLRA 908 (1987).

b). Conduct: The union required non-dues paying bargaining unit employees to pay a fee to be included in a lawsuit concerning the employment status of unit employees.

c). Result: No duty of fair representation violation.

d). Critical factors:
- The union's representational activities on behalf of the employees were not grounded in the union's authority to act as exclusive representative.

- The union was not acting as the exclusive representative even though the union's activities related to conditions of employment of unit employees.

- Non-dues paying members of the bargaining unit could have retained counsel and filed a similar lawsuit.
- The lawsuit was not related to enforcement of the parties' collective bargaining agreement.
2). a). Case: American Federation of Government Employees, AFL-CIO (Social Security Administration), 30 FLRA No. 9, 30 FLRA 35 (1987).

b). Conduct: The union charged non-union unit employees higher fees than union members to participate in a civil action law suit seeking night differential pay.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The institution of the lawsuit was not integrally related to a pending grievance.

- The civil action was a process available to all employees and was not a process in the sole control of the union.

- The union's undertaking was a benefit of union membership and not a negotiated entitlement. 3). a). Case: Antilles Consolidated Education Association, (OEA/NEA), San Juan, Puerto Rico (Bette L. Benber, Elizabeth Pawson and Antoinette Torres De Perez), 36 FLRA No. 79, 36 FLRA 776 (1990).

b). Conduct: The union treated members and non-members differently in administering an insurance plan for dental/optical benefits which it administered under the terms of the collective bargaining agreement by requiring non-members to pay a $60 yearly administrative fee to participate.

c). Result: Duty of fair representation violation.

d). Critical factors:

- The dental/optical plan was arrived at through collective bargaining.

- The union's authority to administer the plan also was arrived at through collective bargaining.

- The plan constituted a contractual condition of employment applicable to all unit employees.

e). Remedy: The union was required to cease the requirement that non-members pay an administrative fee, refund all fees collected from non-members, allow non-members to participate in the plan in the same manner as members, and prepare and distribute to all unit employees a pamphlet explaining their rights to participate in the plan and have administrative fees refunded. 4). a). Case: Department of the Army, Watervliet Arsenal, Watervliet, New York , 39 FLRA No. 24, 39 FLRA 318 (1986).

b). Conduct: The union negotiated an agreement that provided leave procedures for a union-sponsored asbestos testing program where unit employees who were union members could be tested on excused absences while unit employees who were not dues paying members could only participate during off-duty hours.

c). Result: Duty of fair representation violation. The activity also was found to have violated the Statute.
d). Critical factors: The process was a negotiated condition of employment applicable to all unit employees.

e). Remedy: The activity and the union were ordered to allow non-members to participate in a make-up testing program on excused absence. The activity was further ordered to restore any leave used to attend the testing.

5). a). Case: U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

b). Conduct: The union distributed the settlement of a grievance on environmental differential pay that favored union officers.

c). Result: Duty of fair representation violation.
The activity also violated the Statute by its actions in connection with the distribution of environmental differential pay.

d). Critical factors: The settlement authorized the union to divide the payments.

e). Remedy: The union and the activity were required to recalculate together the distributions and were jointly and severally liable for making whole those employees who suffered a reduction in environmental differential pay as a result of the unlawful distribution.
6). a). Case: American Federation of Government Employees, Local 1857, AFL-CIO (Sacramento Air Logistics Center, North Highland, California) (Eloise F. Holdahl), 46 FLRA No. 81, 46 FLRA 904 (1992).

b). Conduct: The union refused to represent a unit employee in a proposed disciplinary action because the employee was not a member of the union.

c). Result: No duty of fair representation violation.

d). Critical factors:

- The union was not the only source of the employee's representation since an employee faced with a proposed disciplinary action is entitled to a representative of choice.

- There was no contractual obligation for the union to represent all unit employees regarding proposed disciplinary actions.

7). a). Case: U.S. Air Force, Loring Air Force Base, Limestone, Maine (American Federation of Government Employees, AFL-CIO, Local 2943) and American Federation of Government Employees, AFL-CIO, Local 2943 (Otis J. Clair, Jr.), 43 FLRA No. 90, 43 FLRA 1087 (1992).

b). Conduct: The union's distribution of the settlement of a grievance on environmental differential pay contained numerous unexplained discrepancies.

c). Result: Violation of the duty of fair representation. The activity also violated the Statute by its actions in connection with the distribution of the pay.

d). Critical factors:

- The settlement authorized the union to divide the payments.

- The discrepancies were unexplained by the union.

- The union's actions were so far outside the wide range of reasonableness as to be irrational.

e). Remedy: The union and the activity were required to recalculate together the distributions and were jointly and severally liable for making whole those employees whose suffered a reduction in environmental differential pay as a result of the unlawful distribution.


 

listman  Jan 22, 2011; 07:14amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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TED ;  This the time frame issue.
Look to why it wasn't followed, In the middle of C 1 below it flatly states a remedy that means a violation occurred.


As taken from C1 - DUTY of FAIR REPRESENTATION.
  "  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 ( WHEN THEY DO NOT ACT WITHIN SIX MONTHS ) when thy do not act within six months 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."





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.  

listman  Jan 22, 2011; 07:17amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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The NLRB's memorandum may be dated but I do know it remains kind of constant. Am looking to current applications both in print and real life.  

listman  Jan 22, 2011; 07:26amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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NEWS ! NEWS ! NEWS ! NEWS NEWS !
 !


Posted on January 21, 2011 by Seth Borden
NLRB Acting General Counsel Urges Narrowing of Arbitration Deferral Standards
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Share LinkThe Acting General Counsel yesterday issued General Counsel Memorandum No. 11-05, narrowing the scope of Board deference to a contractual arbitration award in cases involving 8(a)(1) and (3) allegations. Last year, In Operations Memorandum 10-13(CH), prior General Counsel Ronald Meisburg identified tensions between the Board’s Spielberg/Olin deferral standards, D.C. Circuit Court of Appeals jurisprudence, and the recent Supreme Court case, 14 Penn Plaza, LLC v. Steven Pyett, 129 S. Ct. 1456 (2009). This earlier Memorandum invited a re-evaluation of the Board’s standards in light of these decisions.

Acting General Counsel Solomon’s Memorandum now announces a new approach:

Specifically, in Section 8(a)(1) and 8(a)(3) statutory rights cases, the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator. This includes not only cases involving Section 8(a)(1) and 8(a)(3) discipline and discharge, but also all other cases involving Section 8(a)(1) conduct that is subject to challenge under a contractual grievance provision.

The Memorandum urges the Board to impose the burden of proof for deferral upon the party urging deferral:

Thus, the party urging deferral must demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board should, as now, defer unless the award is clearly repugnant to the Act.

Finally, the Memo acknowledges that changes in Regional Office investigation procedures are necessary in light of these developments:

To prevent any such difficulties in future cases raising allegations of Section 8(a)(1) and 8(a)(3) that will be deferred under Collyer, particularly as a heightened standard would likely make at least some additional arbitral awards inappropriate for deferral, Regions should take affidavits from the Charging Party, and from all witnesses within the control of the Charging Party, before they make their “arguable merit” determination in considering Collyer deferral.

Only then, if the Region determines there is arguable merit to the charge and the other Collyer requirements are met, should the Region defer the charge. If the Region concludes the charge is without merit, of course, it should dismiss the charge, absent withdrawal.

In all pending and future cases where the Region has deferred a charge to arbitration under Collyer, when the arbitral award issues, the Region must review the award to determine whether post-arbitral deferral is appropriate. The Region should determine if the party urging deferral can demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue; and (3) the arbitral award is not clearly repugnant to the Act. Upon making its determination, the Region should submit the case to the Division of Advice, along with the Region’s recommendation as to whether to defer.

As a result, even in cases where the underlying merits are subject to pending or past grievance and arbitration proceedings, the Board will thoroughly conduct its investigation of the merits before concluding whether deferral is appropriate. Following the award, the Board will review the award to ensure the standards have been met.  Employers must adjust their approach to negotiating discrimination, grievance and arbitration provisions in collective-bargaining agreements; how they approach and litigate discrimination and interference issues at arbitration; and, their expectations in connection with the processing of 8(a)(1) and (3) unfair labor practice charges filed during the life of a contract.

 

listman  Jan 22, 2011; 07:29amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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 GO TO:    General Counsel Solomon’s Memorandum JANUARY 2011  

listman  Jan 22, 2011; 07:55amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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 " because the grievance procedure cannot be invoked because of timeliness or because it already has been improperly pursued"

THE FRIGGIN LAW SAYS WHEN IMPROPERLY PURSUED, and there's plenty of info available where this is proven.

Whether your beat down or not quite up to the task, -- to not challenge this means your done for.
This could also stop Mccarron.  I mean if our voice wasn't taken away in the respect of filing charges and grievances maybe we could have stopped him a long time ago from being so company friendly with these issues.

The NLRB & DOL have failed us and maybe there's a turnaround.  After all could we at any time previously gotten away with the lodge paprework through the mobbed up locals as members concerns and grievances ( yes Derrico I mean now ) to the council stopping McCarrons actions any earlier ?

WE NEVER HAD A CHANCE !  

listman  Jan 22, 2011; 08:58amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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Had a crooked BA on a grievance, - you had a bad District Council on thnat grievance !


A. Union Representatives on a Work Group Owe a Duty of Fair Representation

When employees are selected to work groups by the exclusive representative and serve as union representatives on those work group, those union representatives owe a duty of fair representation to the bargaining unit. As discussed in the work group guidance, the work groups serve as an extension of the collective bargaining relationship and an alternative means of communication between the union as the exclusive representative and the agency. Since the employees are serving as union representatives, I am of the view that the statutory duty of fair representation attaches to their activities, just as if those representatives were negotiating a contract or processing a grievance. Although the union, as the exclusive representative, remains empowered to select its own representatives and may chose to only select union members, although not required to do so, those representatives must not violate the duty of fair representation while representing the interest of the entire bargaining unit.
 

listman  Jan 22, 2011; 10:47amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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National Labor Relations Act (NLRA)
Categories: wex articleslabor lawNational Labor Relations Act
OverviewResourcesNational Labor Relations Act: an overview

The focus of the traditional law of unions, which makes up the major part of the area of law known as labor law, is on workers collectively and their rights as a group. This may be distinguished from employment law which focuses more on issues relating to the rights of individual employees. The body of law of which labor law is comprised is notable for the primacy of the National Labor Relations Act (NLRA). The NLRA is codified at 29 U.S.C. §§ 151-169 and purports to serve the national interest of the United States regarding labor relations within the country. As may be noted during periods of widespread strikes, uneasy relations in this sphere can very quickly and severely have an adverse effect on the entire country. Clear policy regarding labor and management encourages the best interests of the United States which is to maintain full economic production.  Industrial peace is essential to a functioning economy. The NLRA seeks to limit industrial strife among employers, employees, and labor organizations which could hinder full production in the United States economy.


There are three major groups under the NLRA whose rights and roles with regards to one another are strictly defined.  It is easy to understand why such strict definition of roles is important- it allows employers, employees, and labor unions to know exactly what to expect from one another. In addition to defining and protecting the rights of these groups, it also encourages collective bargaining  and eliminates certain practices on the part of labor and management.
These practices are referred to as unfair labor practices ("ULPs") and have been singled out for their potential to harm the general welfare.  Through the NLRA, employees are guaranteed the right to organize and to bargain collectively with their employers through representatives of their own choosing.  If they desire not to exercise these rights, they are also guaranteed the right to refrain from them.  The NLRA establishes a procedure by which employees can exercise their choice whether or not to join a union in a secret-ballot election conducted by the National Labor Relations Board ("NLRB").  When and at whose discretion a secret-ballot election may be exercised as opposed to other election procedures is currently a matter of contention between employers and labor groups.

jurisdiction of the NLRA

In order to determine if the National Labor Relations Act applies to a particular case, courts look to the following factors: (1) whether or not there is a labor dispute as defined under the NLRA, (2) Whether the employer’s business activity is “commerce” under the definition offer in the NLRA, (3) Or whether or not the activity falls under activity that is “affecting commerce” under the NLRA.  The NLRB has discretion to decline to exercise jurisdiction if interstate activities are only minimal and may leave settlement of disputes to appropriate state or local agencies.  This agencies may not undermine the policies of the NLRA when reaching decisions.


jurisdiction over employers

In general, the NLRA applies only to those who act as employers or as direct or indirect agents of employers.  However, the following employers are not covered:

1. Government or Union Employers. Certain employers are specifically are specifically excluded by the NLRA:  federal and state offices, Federal Reserve Banks, employers subject to the Railway Labor Act, and labor unions and their officers and agents (except when they are acting as employers).

2. Companies that have a municipal function.  A privately-owned company with an essentially municipal function is exempted from the NLRA.  

3. Religious schools. (An exception here is schools that are largely secular and not pervaded by a religious purpose).

Healthcare workers were previously exempted but are now included.

jurisdiction over employees

Though the NLRA broadly covers many "employees" as the term is used in common parlance, there are significant exceptions that must be noted.  


right of employees



The NLRA, in general covers the rights of employees, such as the rights to self-organization and collective bargaining.  It also contains provisions regarding the requirements for union-security agreements. Additionally, the right to strike, the right to picket, the obligations of collective bargaining, and selection of employee representatives, and a definition of ULPs are covered. The NLRA also contains provisions that protect what is known as protected concerted activity- when two or more employees acting together protest or complain about wages, benefits, or other terms and conditions of employment.


enforcement


The NLRA has an enforcement mechanism written into it.  It looks to the National Labor Relations Board ("NLRB") and the General Counsel acting through 52 regional and field offices located in major cities all over the country.  There are offices in cities ranging from Portland to Brooklyn and from San Diego to Birmingham. Both the General Counsel as well as the staff of the Regional Offices is responsible for investigation and prosecution of charges of ULPs. Additionally, they are responsible for conducting elections to decide employee representatives. The Board is made up of five members who are appointed by the President with consent of the Senate for 5-year terms.  The appointment process is often considered to be highly political. The Board decides cases involving charges of ULPs.  It also determines representation election questions that it receives from Regional Offices. The mechanism for enforcement through the NLRB is laid out in the NLRA, including the boundaries of its authority and limits to this authority.   The NLRA also covers its procedures and powers in representation matters, in unfair labor practice cases, and in certain special proceedings under the Act; and the Act’s provisions concerning enforcement of the Board’s orders.


 

listman  Jan 22, 2011; 10:53amRe: MANDATORY ARBITRATION UNDER THE UBC CBA's Reply | Threaded | More Reply to author
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TRITLE 29 § 1132. Civil enforcement
How Current is This? (a) Persons empowered to bring a civil action
A civil action may be brought—
(1) by a participant or beneficiary—
(A) for the relief provided for in subsection (c) of this section, or
(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;
(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title;
(3) by a participant, beneficiary, or fiduciary
(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or
(B) to obtain other appropriate equitable relief
(i) to redress such violations or
(ii) to enforce any provisions of this subchapter or the terms of the plan;
(4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title;
(5) except as otherwise provided in subsection (b) of this section, by the Secretary
(A) to enjoin any act or practice which violates any provision of this subchapter, or
(B) to obtain other appropriate equitable relief
(i) to redress such violation or
(ii) to enforce any provision of this subchapter;
(6) by the Secretary to collect any civil penalty under paragraph (2), (4), (5), (6), (7), (8), or (9) of subsection (c) of this section or under subsection (i) or (l) of this section;
(7) by a State to enforce compliance with a qualified medical child support order (as defined in section 1169 (a)(2)(A) of this title);
(8) by the Secretary, or by an employer or other person referred to in section 1021 (f)(1) of this title,
(A) to enjoin any act or practice which violates subsection (f) of section 1021 of this title, or
(B) to obtain appropriate equitable relief
(i) to redress such violation or
(ii) to enforce such subsection;
(9) in the event that the purchase of an insurance contract or insurance annuity in connection with termination of an individual’s status as a participant covered under a pension plan with respect to all or any portion of the participant’s pension benefit under such plan constitutes a violation of part 4 of this title [1] or the terms of the plan, by the Secretary, by any individual who was a participant or beneficiary at the time of the alleged violation, or by a fiduciary, to obtain appropriate relief, including the posting of security if necessary, to assure receipt by the participant or beneficiary of the amounts provided or to be provided by such insurance contract or annuity, plus reasonable prejudgment interest on such amounts; or (10) in the case of a multiemployer plan that has been certified by the actuary to be in endangered or critical status under section 1085 of this title, if the plan sponsor—
(A) has not adopted a funding improvement or rehabilitation plan under that section by the deadline established in such section, or
(B) fails to update or comply with the terms of the funding improvement or rehabilitation plan in accordance with the requirements of such section,
by an employer that has an obligation to contribute with respect to the multiemployer plan or an employee organization that represents active participants in the multiemployer plan, for an order compelling the plan sponsor to adopt a funding improvement or rehabilitation plan or to update or comply with the terms of the funding improvement or rehabilitation plan in accordance with the requirements of such section and the funding improvement or rehabilitation plan.
(b) Plans qualified under Internal Revenue Code; maintenance of actions involving delinquent contributions
(1) In the case of a plan which is qualified under section 401 (a), 403 (a), or 405 (a) [2] of title 26 (or with respect to which an application to so qualify has been filed and has not been finally determined) the Secretary may exercise his authority under subsection (a)(5) of this section with respect to a violation of, or the enforcement of, parts 2 and 3 of this subtitle (relating to participation, vesting, and funding), only if— (A) requested by the Secretary of the Treasury, or
(B) one or more participants, beneficiaries, or fiduciaries, of such plan request in writing (in such manner as the Secretary shall prescribe by regulation) that he exercise such authority on their behalf. In the case of such a request under this paragraph he may exercise such authority only if he determines that such violation affects, or such enforcement is necessary to protect, claims of participants or beneficiaries to benefits under the plan.
(2) The Secretary shall not initiate an action to enforce section 1145 of this title.
(3) Except as provided in subsections (c)(9) and (a)(6) (with respect to collecting civil penalties under subsection (c)(9)), the Secretary is not authorized to enforce under this part any requirement of part 7 against a health insurance issuer offering health insurance coverage in connection with a group health plan (as defined in section 1191b (a)(1) of this title). Nothing in this paragraph shall affect the authority of the Secretary to issue regulations to carry out such part.
(c) Administrator’s refusal to supply requested information; penalty for failure to provide annual report in complete form
(1) Any administrator
(A) who fails to meet the requirements of paragraph (1) or (4) of section 1166 [2] of this title, section 1021 (e)(1) of this title, section 1021 (f) of this title, or section 1025 (a) of this title with respect to a participant or beneficiary, or
(B) who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation.
(2) The Secretary may assess a civil penalty against any plan administrator of up to $1,000 a day from the date of such plan administrator’s failure or refusal to file the annual report required to be filed with the Secretary under section 1021 (b)(1) of this title. For purposes of this paragraph, an annual report that has been rejected under section 1024 (a)(4) of this title for failure to provide material information shall not be treated as having been filed with the Secretary.
(3) Any employer maintaining a plan who fails to meet the notice requirement of section 1021 (d) of this title with respect to any participant or beneficiary or who fails to meet the requirements of section 1021 (e)(2) of this title with respect to any person or who fails to meet the requirements of section 1082 (d)(12)(E) [2] of this title with respect to any person may in the court’s discretion be liable to such participant or beneficiary or to such person in the amount of up to $100 a day from the date of such failure, and the court may in its discretion order such other relief as it deems proper.
(4) The Secretary may assess a civil penalty of not more than $1,000 a day for each violation by any person of subsection (j), (k), or (l) of section 1021 of this title or section 1144 (e)(3) of this title.
(5) The Secretary may assess a civil penalty against any person of up to $1,000 a day from the date of the person’s failure or refusal to file the information required to be filed by such person with the Secretary under regulations prescribed pursuant to section 1021 (g) of this title.
(6) If, within 30 days of a request by the Secretary to a plan administrator for documents under section 1024 (a)(6) of this title, the plan administrator fails to furnish the material requested to the Secretary, the Secretary may assess a civil penalty against the plan administrator of up to $100 a day from the date of such failure (but in no event in excess of $1,000 per request). No penalty shall be imposed under this paragraph for any failure resulting from matters reasonably beyond the control of the plan administrator.
(7) The Secretary may assess a civil penalty against a plan administrator of up to $100 a day from the date of the plan administrator’s failure or refusal to provide notice to participants and beneficiaries in accordance with subsection (i) or (m) of section 1021 of this title. For purposes of this paragraph, each violation with respect to any single participant or beneficiary shall be treated as a separate violation.
(8) The Secretary may assess against any plan sponsor of a multiemployer plan a civil penalty of not more than $1,100 per day—
(A) for each violation by such sponsor of the requirement under section 1085 of this title to adopt by the deadline established in that section a funding improvement plan or rehabilitation plan with respect to a multiemployer plan which is in endangered or critical status, or
(B) in the case of a plan in endangered status which is not in seriously endangered status, for failure by the plan to meet the applicable benchmarks under section 1085 of this title by the end of the funding improvement period with respect to the plan.
(9)
(A) The Secretary may assess a civil penalty against any employer of up to $100 a day from the date of the employer’s failure to meet the notice requirement of section 1181 (f)(3)(B)(i)(I) of this title. For purposes of this subparagraph, each violation with respect to any single employee shall be treated as a separate violation.
(B) The Secretary may assess a civil penalty against any plan administrator of up to $100 a day from the date of the plan administrator’s failure to timely provide to any State the information required to be disclosed under section 1181 (f)(3)(B)(ii) of this title. For purposes of this subparagraph, each violation with respect to any single participant or beneficiary shall be treated as a separate violation.
(10)  [3] Secretarial enforcement authority relating to use of genetic information.— (A) General rule.— The Secretary may impose a penalty against any plan sponsor of a group health plan, or any health insurance issuer offering health insurance coverage in connection with the plan, for any failure by such sponsor or issuer to meet the requirements of subsection (a)(1)(F), (b)(3), (c), or (d) of section 1182 of this title or section 1181 or 1182 (b)(1) of this title with respect to genetic information, in connection with the plan.
(B) Amount.— (i) In general.— The amount of the penalty imposed by subparagraph (A) shall be $100 for each day in the noncompliance period with respect to each participant or beneficiary to whom such failure relates.
(ii) Noncompliance period.— For purposes of this paragraph, the term “noncompliance period” means, with respect to any failure, the period—
(I) beginning on the date such failure first occurs; and
(II) ending on the date the failure is corrected.
(C) Minimum penalties where failure discovered.— Notwithstanding clauses (i) and (ii) of subparagraph (D):
(i) In general.— In the case of 1 or more failures with respect to a participant or beneficiary—
(I) which are not corrected before the date on which the plan receives a notice from the Secretary of such violation; and
(II) which occurred or continued during the period involved;
the amount of penalty imposed by subparagraph (A) by reason of such failures with respect to such participant or beneficiary shall not be less than $2,500.
(ii) Higher minimum penalty where violations are more than de minimis.— To the extent violations for which any person is liable under this paragraph for any year are more than de minimis, clause (i) shall be applied by substituting “$15,000” for “$2,500” with respect to such person.
(D) Limitations.— (i) Penalty not to apply where failure not discovered exercising reasonable diligence.— No penalty shall be imposed by subparagraph (A) on any failure during any period for which it is established to the satisfaction of the Secretary that the person otherwise liable for such penalty did not know, and exercising reasonable diligence would not have known, that such failure existed.
(ii) Penalty not to apply to failures corrected within certain periods.— No penalty shall be imposed by subparagraph (A) on any failure if—
(I) such failure was due to reasonable cause and not to willful neglect; and
(II) such failure is corrected during the 30-day period beginning on the first date the person otherwise liable for such penalty knew, or exercising reasonable diligence would have known, that such failure existed.
(iii) Overall limitation for unintentional failures.— In the case of failures which are due to reasonable cause and not to willful neglect, the penalty imposed by subparagraph (A) for failures shall not exceed the amount equal to the lesser of—
(I) 10 percent of the aggregate amount paid or incurred by the plan sponsor (or predecessor plan sponsor) during the preceding taxable year for group health plans; or
(II) $500,000.
(E) Waiver by secretary.— In the case of a failure which is due to reasonable cause and not to willful neglect, the Secretary may waive part or all of the penalty imposed by subparagraph (A) to the extent that the payment of such penalty would be excessive relative to the failure involved.
(F) Definitions.— Terms used in this paragraph which are defined in section 1191b of this title shall have the meanings provided such terms in such section.
(10)  [3] The Secretary and the Secretary of Health and Human Services shall maintain such ongoing consultation as may be necessary and appropriate to coordinate enforcement under this subsection with enforcement under section 1320b–14 (c)(8) [2] of title 42.
(d) Status of employee benefit plan as entity
(1) An employee benefit plan may sue or be sued under this subchapter as an entity. Service of summons, subpena, or other legal process of a court upon a trustee or an administrator of an employee benefit plan in his capacity as such shall constitute service upon the employee benefit plan. In a case where a plan has not designated in the summary plan description of the plan an individual as agent for the service of legal process, service upon the Secretary shall constitute such service. The Secretary, not later than 15 days after receipt of service under the preceding sentence, shall notify the administrator or any trustee of the plan of receipt of such service.
(2) Any money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this subchapter.
(e) Jurisdiction
(1) Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021 (f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section.
(2) Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.
(f) Amount in controversy; citizenship of parties
The district courts of the United States shall have jurisdiction, without respect to the amount in controversy or the citizenship of the parties, to grant the relief provided for in subsection (a) of this section in any action.
(g) Attorney’s fees and costs; awards in actions involving delinquent contributions
(1) In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.
(2) In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan—
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of—
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.
For purposes of this paragraph, interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of title 26.
(h) Service upon Secretary of Labor and Secretary of the Treasury
A copy of the complaint in any action under this subchapter by a participant, beneficiary, or fiduciary (other than an action brought by one or more participants or beneficiaries under subsection (a)(1)(B) of this section which is solely for the purpose of recovering benefits due such participants under the terms of the plan) shall be served upon the Secretary and the Secretary of the Treasury by certified mail. Either Secretary shall have the right in his discretion to intervene in any action, except that the Secretary of the Treasury may not intervene in any action under part 4 of this subtitle. If the Secretary brings an action under subsection (a) of this section on behalf of a participant or beneficiary, he shall notify the Secretary of the Treasury.
(i) Administrative assessment of civil penalty
In the case of a transaction prohibited by section 1106 of this title by a party in interest with respect to a plan to which this part applies, the Secretary may assess a civil penalty against such party in interest. The amount of such penalty may not exceed 5 percent of the amount involved in each such transaction (as defined in section 4975 (f)(4) of title 26) for each year or part thereof during which the prohibited transaction continues, except that, if the transaction is not corrected (in such manner as the Secretary shall prescribe in regulations which shall be consistent with section 4975 (f)(5) of title 26) within 90 days after notice from the Secretary (or such longer period as the Secretary may permit), such penalty may be in an amount not more than 100 percent of the amount involved. This subsection shall not apply to a transaction with respect to a plan described in section 4975 (e)(1) of title 26.
(j) Direction and control of litigation by Attorney General
In all civil actions under this subchapter, attorneys appointed by the Secretary may represent the Secretary (except as provided in section 518 (a) of title 28), but all such litigation shall be subject to the direction and control of the Attorney General.
(k) Jurisdiction of actions against the Secretary of Labor
Suits by an administrator, fiduciary, participant, or beneficiary of an employee benefit plan to review a final order of the Secretary, to restrain the Secretary from taking any action contrary to the provisions of this chapter, or to compel him to take action required under this subchapter, may be brought in the district court of the United States for the district where the plan has its principal office, or in the United States District Court for the District of Columbia.
(l) Civil penalties on violations by fiduciaries
(1) In the case of—
(A) any breach of fiduciary responsibility under (or other violation of) part 4 of this subtitle by a fiduciary, or
(B) any knowing participation in such a breach or violation by any other person,
the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount.
(2) For purposes of paragraph (1), the term “applicable recovery amount” means any amount which is recovered from a fiduciary or other person with respect to a breach or violation described in paragraph (1)—
(A) pursuant to any settlement agreement with the Secretary, or
(B) ordered by a court to be paid by such fiduciary or other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5) of this section.
(3) The Secretary may, in the Secretary’s sole discretion, waive or reduce the penalty under paragraph (1) if the Secretary determines in writing that—
(A) the fiduciary or other person acted reasonably and in good faith, or
(B) it is reasonable to expect that the fiduciary or other person will not be able to restore all losses to the plan (or to provide the relief ordered pursuant to subsection (a)(9) of this section) without severe financial hardship unless such waiver or reduction is granted.
(4) The penalty imposed on a fiduciary or other person under this subsection with respect to any transaction shall be reduced by the amount of any penalty or tax imposed on such fiduciary or other person with respect to such transaction under subsection (i) of this section and section 4975 of title 26.
(m) Penalty for improper distribution
In the case of a distribution to a pension plan participant or beneficiary in violation of section 1056 (e) of this title by a plan fiduciary, the Secretary shall assess a penalty against such fiduciary in an amount equal to the value of the distribution. Such penalty shall not exceed $10,000 for each such distribution.

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[1] So in original. Probably should be “subtitle”.

[2] See References in Text note below.

[3] So in original. Two pars. (10) have been enacted.
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