Marshall v. AFGE, Local 916, 95-SOC-5 (ALJ Apr. 29, 1996)
U.S. Department of Labor Office of Administrative Law Judges
Federal Building, Suite 4300
501 W. Ocean Boulevard
Long Beach, California 90802
(310) 980-3594
(310) 980-3596
FAX: (310) 980-3597
DATE: April 29, 1996
CASE NO.: 95-SOC-5
In the Matter of
GENE MARSHALL,
Complainant,
v.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFGE), LOCAL 916,
Respondent.
DECISION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS
This matter arises under Title VII of the Civil Service Reform
Act (the "CSRA"), 5 U.S.C. 7101 et seq., and the
"Standards of Conduct" regulations promulgated thereunder, 29
C.F.R. Parts 457-59. Complainant, Gene Marshall, has alleged that
Respondent, American Federation of Government Employees, Local 916
("AFGE-Local"), denied him of due process in violation of 29 C.F.R.
458.2(a)(5). Pursuant to 29 C.F.R. 458.60, the Office of Labor
Management Standards ("OLMS") referred this matter to the Office of
Administrative Law Judges by way of letter dated August 4, 1995.
BACKGROUNDHistory of the CSRA
The CSRA requires public sector labor organizations that
represent civilian employees of the United States Government to
comply with certain standards of conduct in order to assure that
said organizations are free from "corrupt influences and influences
opposed to basic democratic principles." 5 U.S.C. 7120(a). In
carrying out this purpose, Congress granted authority to the
Assistant Secretary of Labor to adopt "such regulations as are
necessary to carry out the purpose of this section." 5 U.S.C.
7120(d). In order to guide the Assistant Secretary in his or her
duties, Congress required that any such regulations "conform
generally to the principles applied to labor organizations in the
private sector." 5 U.S.C. 7120(d).
In complying with the mandate of Congress, the Assistant
Secretary adopted regulations under the CSRA which closely resemble
the minimum standards of conduct contained in the Labor Management
Reporting and Disclosure Act (the "LMRDA"), 29 U.S.C. 401 et
seq., which is applicable to private sector labor
organizations. One set of provisions contained in the LMRDA, which
were adopted by the Assistant Secretary in promulgating the
regulations under the CSRA, are what are commonly referred to as
the "Bill of Rights of Members of Labor Organizations." 29 C.F.R.
458.2; Seealso 29 U.S.C. 411 etseq.Summary of the Case
Complainant was a member and former President of AFGE Local
916, a union which represents Federal workers at Tinker Air Force
Base, Oklahoma City, Oklahoma. AFGE Local 916, is a local union
chartered by AFGE-National.
By way of letter dated May 14, 1993, Mr. John Sturdivant,
National President of AFGE, preferred twenty-nine (29) charges
against Complainant, alleging violations of the AFGE Constitution.
In that same letter, Mr. Sturdivant stated that Complainant could
not receive a fair and impartial trial at the Local level, and
therefore appointed a three-member committee, composed of AFGE
members of locals other than AFGE Local 916.
On July 27-28, 1993, Complainant was tried on the charges
preferred, and in a letter dated November 30, 1993, was found
guilty on 25 of the 29 charges filed. The committee recommended
that Complainant be removed from membership for a period of
thirteen (13) years and his reinstatement thereafter be conditional
upon his repayment of ,158,413.60, the amount the committee found
Local 916 lost as a result of Complainant's actions. The National
President adopted the findings of the trial committee and
disciplined Complainant in accordance with the committee's
recommendations. Complainant appealed this decision to the
National Executive Committee, an appeal which was dismissed on
March 28, 1994.
Complainant alleges that these actions were in direct
violation of his rights protected by the CSRA and its implementing
regulations. Specifically, he alleges that he was disciplined
without being "afforded a full and fair hearing" in accordance with
29 C.F.R. 458.2(a)(5)(a)(iii).
Motion to Dismiss
On February 29, 1996, I received Respondent's Motion to
Dismiss this matter. Counsel for Respondent argues that AFGE Local
916, the named respondent in this matter, is a separate and
distinct entity from AFGE-National (RM at 1).[1] In particular,
AFGE-Local 916, is a local union chartered by AFGE-National to
represent the employees at Tinker Air Force Base (RM at 1).
Respondent asserts that the facts which Complainant alleges as
giving rise to this matter all relate to actions taken by AFGE-
National or its national president, Mr. Sturdivant (RM at 1-2). It
is argued that Complainant has failed to allege that AFGE-Local 916
was responsible for any of the actions which culminated in the
discipline rendered (RM at 2). Therefore, Respondent contends that
AFGE-Local 916 is not a proper party in this matter (RM at 2).
Complainant's Response to the Motion to Dismiss was received
via facsimile on March 6, 1996. Therein, Complainant does not
dispute the allegation that AFGE-Local 916 is not the proper
respondent (Seegenerally CR at 3-5). Rather,
Complainant requests that I allow an amendment of the pleadings,
pursuant to the Federal Rules of Civil Procedure, Rule 15(c), to
make AFGE-National the proper respondent (CR at 4-5).
After receiving Respondent's motion and Complainant's
response, I convened a telephonic conference on March 8, 1996, with
both counsel. At that time, the parties agreed that the hearing
scheduled for March 19, 1996, should be continued, and that the
parties should submit supplemental briefs addressing the issue of
dismissal. Respondent's brief and attached affidavit of Bobby
Harnage, AFGE-National's Secretary-Treasurer, was received on April
10, 1996. Complainant's brief was received on April 22, 1996.
Both parties are in agreement that this matter should be dismissed
(RSB at 6; CSB at 2).
DISCUSSIONThe Proper Respondent
I initially find that AFGE-Local 916, the named Respondent in
the above-styled matter, is not a proper party in this matter.
Rather, the proper respondent is AFGE-National, and therefore, the
case as currently styled cannot go forward. Complainant seems to
agree with this finding, but requests that I remedy the situation
by "amend[ing] the style of this case to reflect that the National-
AFGE is the Respondent herein" (CR p.5). Assuming, without
deciding, that I have the authority to amend the pleadings to name
AFGE-National as the respondent, and that such an action would be
proper under these circumstances, I find that this matter must be
dismissed nonetheless.
Applicability of the CSRA
Were I to grant Complainant's request, AFGE-National would be
the named respondent in this matter. Therefore, it must be
determined whether the Office of Administrative Law Judges would
have jurisdiction to hear a complaint against AFGE-National brought
under the CSRA. For the reasons delineated below, I find that it
would not.
The CSRA and the LMRDA
As discussed above, the LMRDA and the CSRA are two extremely
similar bodies of law enacted, in part, to safeguard against
improper disciplinary actions by unions against their members. The
former is directed towards labor unions representing employees in
the private sector, while the latter is directed towards labor
unions representing employees in the public sector.
Although they pursue the same objective, the remedies provided
by each statute differ markedly. The LMRDA gives aggrieved
employees a cause of action in federal court. 29 U.S.C. 412.
The CSRA limits a public employee's complaints to resolution
through the administrative process. 5 U.S.C. 7120; 29 C.F.R.
Part 458.
Application of the LMRDA
A "labor organization" is defined by the LMRDA as:
[any organization] in which employees participate and
which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours, or other
terms and conditions of employment.
29 U.S.C. 402(i) (emphasis added). The LMRDA goes on to
expressly exclude from the definition of "employers," "the United
States or any corporation wholly owned by the government of the
United States or any state or political subdivision thereof." 29
U.S.C. 402(e). Therefore, a labor organization will be subject
to the provisions of the LMRDA so long as it "deals with any
private sector employers on behalf of its members concerning the
terms and conditions of employment. . . ." Martinez v.
AFGE, 980 F.2d 1039 (5th Cir. 1993) (emphasis added).
Furthermore, as noted by the implementing regulations of the LMRDA:
in the case of a national, international or intermediate
labor organization composed of both government locals and
non-government or mixed locals, the parent organization
as well as its mixed and non-government locals would be
"labor organizations" and subject to the [LMRDA].
29 C.F.R. 451.3(a)(4).
In this case, it is clear that AFGE-National is just such a
national labor organization composed of both government locals and
non-government locals. As noted in the affidavit of AFGE-
National's Secretary-Treasurer, AFGE-National currently has less
than ten Locals which are "certified as exclusive bargaining
representatives of bargaining units composed of private sector
employees" (RSB, affid. of Bobby Harnage, at 2). AFGE-National
also has almost 1,200 Locals composed solely of federal employees
(RSB, affid. of Bobby Harnage, at 1). Accepting this affidavit, I
find that AFGE-National is a parent labor organization composed of
both government and non-government Locals. As such, AFGE-National
is clearly subject to the provisions of the LMRDA. See 29
C.F.R. 451.3(a)(4). As I have previously found herein that AFGE-
National is the proper respondent in this matter, it is evident
that this matter is governed by the LMRDA.
Concurrent Application of the CSRA
The CSRA defines a "labor organization" as "an organization
composed in whole or in part of employees . . . which has as a
purpose the dealing with a [federal] agency concerning grievances
and conditions of employment." 5 U.S.C. 7103(a)(3)-(4). Based
upon this broad language, it would appear as if AFGE-National is
also subject to the provisions of the CSRA.
However, in a recent claim also involving AFGE-National, the
United States Department of Labor's Office of Labor-Management
Standards (OLMS) has held that the LMRDA and the CSRA are mutually
exclusive, and that the provisions of the former should be given
precedence over the latter when the two overlap. See A/S AW
No. 96-2 (January 19, 1996). This ruling was based upon statutory
interpretation, giving deference to the comprehensive LMRDA rather
than the more general CSRA. Id. at 3. Based thereon, OLMS
ruled that "jurisdiction of the CSRA should . . . be limited to
those instances in which there would be no jurisdiction under the
LMRDA" Id. Noting that AFGE-National was subject to the
LMRDA, OLMS dismissed the complainant's claim under the CSRA.
Id. at 4.[2]
In its supplemental brief, Respondent persuasively argues that
the proper respondent in this matter is AFGE-National. Although
noting its disagreement with OLMS's ruling as to giving the LMRDA
precedence over the CSRA, Respondent "recognize[s] the decision as
binding on the administrative law judge in the instant case" (RSB
at 4). Therefore, Respondent argues that the instant claim must be
dismissed. Complainant agrees that LMRDA jurisdiction is proper,
and that this matter should be dismissed (CSB at 2).
In making the ruling herein, I make no finding as to whether
the decision of OLMS discussed above is binding authority in this
matter.[3] However, I find that the ruling and its rationale are
persuasive, and therefore find that, insofar as AFGE-National is
subject to the LMRDA, concurrent jurisdiction under the CSRA is
inappropriate.
Conclusion
Having found that AFGE-National is the proper party in this
matter, it is unnecessary to decide whether I have the authority to
amend the pleadings in this matter to name it as the respondent.
Particularly, the case as currently styled must be dismissed for
lack of personal jurisdiction in that Complainant has alleged no
violation by the named respondent, AFGE-Local 916. Furthermore, if
I were to amend the pleadings to reflect AFGE-National as the
proper respondent, the matter would have to be dismissed for lack
of subject matter jurisdiction under the CSRA as found above.
Based upon the foregoing, and upon agreement of both parties,
I find that this case must be dismissed. If Complainant wishes to
proceed with a claim against AFGE-National, he must do so before
the United States District Court under the provisions of the LMRDA.
ORDERIT IS HEREBY ORDERED that the above-entitled matter is
DISMISSED WITH PREJUDICE, for lack of jurisdiction under the Civil
Service Reform Act.
Entered this 29TH day of April, 1996, at Long Beach,
California.
DANIEL L. STEWART
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations will be utilized herein:
RM = Respondent's Motion to Dismiss
CR = Complainant's Response to Motion to Dismiss
RSB = Respondent's Supplemental Brief
CSB = Complainant's Supplemental Brief
[2] OLMS did note in the opinion that the LMRDA would not have
applied, and therefore the CSRA claim would not have been
dismissed, had the action been filed against the complainant's
purely government Local, rather than AFGE-National. Id. at
4, n.3.
[3] OLMS is the branch of the Department of Labor given the
authority to, among other duties, enforce the Standards of Conduct
provisions of the CSRA, and if necessary, refer matters to the
Office of Administrative Law Judges for formal hearing. See
29 C.F.R. Part 458. Therefore, although its rulings do determine
which cases shall be referred to this office, it is questionable as
to whether said rulings are binding upon the undersigned. In any
event, it is unnecessary to resolve this issue at the present time.
