Opposition Brief — Office & Professional Employees International Union v. Bowman

Office - Supreme Court, US

(4) FILED

FEB 28 1985

No. 84-1058

STEVAS

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1984

OFFICE AND PROFESSIONAL EMPLOYEES INTERNA-

TIONAL UNION, AFL-CIO, and SALARY POLICY

EMPLOYEE PANEL,

Petitioners,

V.

W. EUGENE BOWMAN,

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Of Counsel: JOHN JOSEPH FOGARTY

ROBERT F. GORE 327 South Garden Avenue

8001 Braddock Road Clearwater, Florida 33516

Suite 600 (813) 441-2871

Springfield, Virginia 22160 Counsel for Respondent

(703) 321-8510

JOHN WILLIAM DIETZEN

Dietzen & Dietzen

Suite 606, Dome Building

736 Georgia Avenue

Chattanooga, Tennessee 37402

(615) 267-1214

February 28, 1985

BEST AVAILABLE COPY -

QUESTION PRESENTED

Whether a union breaches its statutory duty of fair

representation by negotiating and enforcing a collective-

bargaining agreement that utilizes union membership as

the sole criterion for granting union members preference

over non-union employees regarding voluntary or invol-

untary duty station transfers.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED ........cccccccccscsccesceness i

TABLE OF AUTHORITIES... 00 ccccccccccesacvcscenres iil

ogi to te errr rrr yr Tr I

FI TI oon cscs ve de snsossnavinesatswessemhansas 2

STATUTORY PROVISION INVOLVED.............. 2

STATEMENT OF THE CASE .......c2ccccccccscevcees 2

REASONS WHY WRIT SHOULD BE DENIED...... 6

I. TVA has never raised in the courts below or

in the record the issue set forth in its

question presented ...........cccecccccscscsscceree 6

II. The duty of fair representation is applicable

to contract negotiations and it prohibits dis-

crimination against an employee solely be-

cause he is not a union member..............-..-- 7

CONC UGIIS oi cicccvcccrssacccnsssesssncokenaressces 10

APPENDIX: Opinion of the United States Court of

Appeals for the Sixth Circuit, Sep-

pains DG. Fes .cicasicneerreassbesetaads la

-ill-

TABLE OF AUTHORITIES

Cases Page

Abood v. Detroit Board of Education, 431 U.S.

aa ay Vo xn ae Gun dsen nde ddevvkaeess 8,9

Del Casal v. Eastern Airlines, 634 F.2d 295 (Sth

Cir.), cert. denied, 454 U.S. 892 (1981)................ 8

Electrical Workers v. Faust, 442 U.S. 47 (1979) ......... 7

\ :

Ellis v. Railway Clerks, |

i 9

Ford Moior Co. v. Huffman, 345 U.S. 330 (1953)....... 6

Jones v. Trans World Airlines, 495 F.2d 790 (2d

ate e toss bw pan inskceess saad puedes 8

National Treasury Employees Union vy. Federal

Labor Relations Authority, 721 F.2d 1402 (D.C.

es a. hi peice pone whadlee Kevunend> os 8

NLRB vy. International Brotherhood of Electrical

Workers, 597 F.2d 1326 (10th Cir. 1979).............. 8

Radio Officers Union v. NLRB, 347 U.S. 17 (1954)..... 8

Robertson v. NLRB, 597 F.2d 1331 (10th Cir. 1979) .... 8

-jV-

TaBLe oF AUTHORITIES—continued

Page

Steele v. Louisville & Nashville Railway Co., 323

SE Ss Sat I in olen geben aby ene, enh 6

Syres v. Oil Workers Local 23, 350 U.S. 892 (1955) ..... 6

PONV. TAOE, FOO Uy STUCK OFD ove cic thes ceeeesstyées 7

Wiener v. United States, 357 U.S. 349 (1958).......... ae

Constitutional Provisions and Statutes

United States Constitution

ee or oa dae ede neces erent 3

Lie ene baa OED 2

Tennessee Valley Authority Act of 1933, 16 U.S.C.

Pt ES eer a ey pn ene passim

Pee as 9h 55 5404s Cecdu ee cusins eke eraaees 3, 6

Be Ss Oe No beck a eas cr nsqesanevacerceens 2

Be ee SEE hve e sr knknaknenverendnecGeRinenes ?

No. 84-1058

IN THE

Supreme Court of the United States

OCTOBER TERM. 1984

OFFICE AND PROFESSIONAL EMPLOYEES INTERNA-

TIONAL UNION, AFL-CIO, and SALARY POLICY

EMPLOYEE PANEL,

Petitioners,

V.

W. EUGENE BOWMAN, _

Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Sixth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is reported as Bowman v. Tennessee

Valley Authority, 744 F.2d 1207 (6th Cir. 1984) and, as

respondent’s counsel has not received a copy of the peti-

tioners’ supplemental appendix referred to in the Brief

For The Tennessee Valley Authority, its full text is con-

tained in the appendix hereto. (Resp. App. la-17a) The

opinion of the United States District Court for the East-

ern District of Tennessee is unreported and is set forth in

the petitioners’ appendix (Pet. App. la-15a).

. 3

JURISDICTION

The »idgment of the United States Court of Appeals

for the Sixth Circuit was dated and entered on Sep-

tember 24, 1984, reversing the District Court’s order and

judgment of dismissal. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1) (1982).

STATUTORY PROVISION INVOLVED'

Tennessee Valley Authority Act of 1933, 16 U.S.C.

§ 831-83ldd, as amended.

STATEMENT OF THE CASE

The Tennessee Valley Authority (TVA) is a wholly-

owned government corporation created by the Tennessee

Valley Authority Act of 1933, 16 U.S.C. § 831-83ldd

(1982).

The Salary Policy Employee Panel (Panel) is the bar-

gaining agent of the Office and Professional Employees

' In the proceedings below the respondent argued the union preference

clauses of the collective-bargaining agreement deprived him of his con-

stitutional rights to freedom of association and equal protection under

the law. U.S. Const. amend. I and V. The Court of Appeals did not

reach respondent’s constitutional claims and decided the case on statu-

tory grounds. In order to ensure that his constitutional claims are not

waived, see Wiener v. United States, 357 U.S. 349, 351 n. (1958), the

respondent reasserts them at this time. These constitutional claims,

though not formally addressed by the Court of Appeals, provide alter-

nate grounds for denying the writ of certiorari. Should the Court grant

the writ of certiorari, respondent requests permission to brief his consti-

tutional claims under the First and Fifth Amendments to the Consti-

tution.

EL

iM

International Union (Union) in conducting collective

bargaining with TVA.

Pursuant to Section 3 of the Tennessee Valley Author-

ity Act, 16 U.S.C. § 831b (1982), to “provide a system of

Organization to fix responsibility and promote effi-

ciency,” TVA entered into a collective bargaining agree-

ment (Articles of Agreement) with the Panel.

The Articles of Agreement state in Supplementary

Agreement 5A (S-5:A) that “(t]he selection of personne!

for appointment, placement, and retention in positions

within TVA is made on the basis of merit and efficiency

in accordance with the TVA Act and on the basis of the

Veterans’ Preference Act of 1944, and other applicable

Federal laws and regulations.”

Supplementary Agreement 5B (S-5:B) of the Articles

of Agreement states that: “[S]Jelection for promotion or

transfer (except transfer under Supplementary Agree-

ment: S-7:C) is made on the basis of merit and effi-

ciency: among employees who are relatively equal in

merit and efficiency, the employee with the most TVA

service is selected.”

Supplementary Agreement 7C (S-7:C) of the Articles

of Agreement provides that vacant positions may be

filled by voluntary or directed transfer under the follow-

ing procedures:

(1) First, employees at the surplus location are

given an vupportunity to request transfer to the

vacant position. Among those who request transfer,

the union members have preference for transfer, and

4.

among union members, the one with the earliest

current service date has the highest preference.

(2) If no employee at the surplus location requests

transfer, an employee at the location may be

directed to transfer. In selection among employees

at the surplus location for directed transfer, the

union members have preference for retention at that

location, and among union members the one with

the earliest current service date has the highest re-

tention standing. * * *

(Emphasis supplied)

Respondent, W. Eugene Bowman, was one of four real

estate appraisers employed by TVA at its Chattanooga,

Tennessee duty station when TVA announced that one

of the appraisers was to be transferred to Florence, Ala-

bama. The transfer was to be made in accordance with

the Articles of Agreement provisions granting union

members a preference for transfer and for retention.

There were no volunteers for the transfer to Florence;

therefore, Mr. Bowman, who had more seniority than

one of the union members, was directed to transfer solely

on the basis that he was not a union member. Mr.

Bowman would not have been directed to transfer but

for the union preference provisions of the Articles of

Agreement.

Mr. Bowman filed a grievance protesting his transfer

because it was directed solely on the basis that he was

not a union member pursuant to the provisions in Sup-

plementary Agreement 7. The grievance was futile

because of Supplementary Agreement 11 which states:

e417 »

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oe oe ead

Abita eM RR ee PC i At 9 ml be

wea isi

Be Pisani nc hessicd Bin DIN

a

“{a] grievance may not be filed to change an established

policy, standard, or procedure. Changes in these are

made only through negotiations.” Therefore, the respon-

dent’s grievance was denied, and he was discharged by

TVA for not accepting the transfer to Florence, Alabama.

The jurisdiction of the district court was invoked

under 28 U.S.C. § 1337 (1982) because the Tennessee

Valiey Authority Act of 1933 is an Act of Congress regu-

lating commerce.

The respondent brought the instant action in the Unit-

ed States District Court for the Eastern District of Ten-

nessee, Southern Division, alleging that the Panel and

Union violated their duty of fair representation by nego-

tiating and enforcing the union preference provisions in

the Articles of Agreement; and that TVA violated respon-

dent’s right to freedom of speech and association guaran-

teed by the First Amendment and deprived him of his

liberty and property in violation of the Fifth Amend-

ment.

The Order and Judgment of Dismissal entered by the

District Court was reversed by the United States Court

of Appeals for the Sixth Circuit. The Court did not

address the constitutional issues; it decided the case on

the non-constitutiona! grounds that the Union had vio-

lated its duty of fair representation. The Court ordered

declaratory and injunctive relief because of the invalidity

of the union preference provision in the Articles of

Agreement. The Court further ordered Mr. Bowman’s

reinstatement. The case was remanded for a determina-

tion of damages.

-6-

REASONS WHY WRIT SHOULD BE DENIED

I. TVA has never raised in the courts below or in

the record the issue set forth in its question

presented.

TVA has utilized the statutory basis of the Tennessee

Valley Authority Act, 16 U.S.C. § 831b (1982), to nego-

tiate the Articles of Agreement with the Panel, and the

parties have so stipulated. (R.25) The Articles of Agree-

ment recognize the Panel as the exclusive representative

of the employees similarly situated to the respondent.

The union's duty of fair representation was first estab-

lished in the Railway Labor Act case of Steele v. Louis-

ville & Nashville Railway Co., 323 U.S. 192 (1944); there-

after, the duty was held applicable to the National Labor

Relations Act cases. Ford Motor Co. v. Huffman, 345

U.S. 330 (1953); Syres v. Oil Workers Local 23, 350 U.S.

892 (1955).

In Sieele v. Louisville & Nashville Railway Co., supra,

the Court noted that if the Railway Labor Act granted

exclusive representation to a union “without any com-

mensurate statutory duty toward its members, constitu-

tional questions arise. For the representative is clothed

with power not unlike that of a legislature, which is sub-

ject to constitutional limitations. .. ” /d. at 198. How-

ever, the Court did not reach the constitutional question

as it based its decision on the Act’s implicit expression of

the aim of Congress to impose the duty of fair represen-

tation on the exclusive representative.

In the instant case, the Court of Appeals stated that

x»

“neither TVA nor the unions contest the district court’s

conclusion that the unions are subject to a duty of fair

representation. This is so because TVA’s authority to

bargain collectively with the unions as the exclusive

representatives of employees in Bowman’s classification

derives from provisions of the TVA Act which broadly

empower TVA to design its own system of personnel

management.” (Resp. App. 8a-9a)

The parties stipulated that the Tennessee Valley

Authority Act was the basis for TVA entering into the

Articles of Agreement with the Panel. If the Act gives

TVA the authority to do this, then the Act must also

implicitly impose on the Panel a duty of fair representa-

tion. The contention that TVA does not have the author-

ity, and the Union the corollary duty, has not been pre-

viously raised at any stage of this case until the brief of

TVA was filed with this Court.

Il. The duty of fair representation is applicable to

contract negotiations and it prohibits discrimination

against an employee solely because he is not a union

member.

A wnion breaches its statutory duty of fair representa-

tion “only when [its] conduct toward a member of the

collective bargaining unit is arbitrary, discriminatory, or

in bad faith,” Vaca v. Sipes, 386 U.S. 171, 190 (1967),

and this duty is applicable “during the negotiation,

administration and enforcement of collective bargaining

agreements.” Electrical Workers v. Faust, 442 U.S. 47

(1979).

Although unions have a certain degree of flexibility in

--

balancing the competing interests of the employees it

represents, this flexibility does not grant them the power

to discriminate on the sole basis of union membership.

Radio Officers Union v. NLRB, 347 U.S. 17, 46-48

(1954); Jones v. Trans World Airlines, 495 F.2d 790, 792

(2d Cir. 1974); NLRB vy. International Brotherhood of

Electrical Workers, 597 F.2d 1326 (10th Cir. 1979);

Robertson v. NLRB, 597 F.2d 1331 (10th Cir. 1979); Del

Casal v. Eastern Airlines, 634 F.2d 295 (Sth Cir.), cert.

denied, 454 U.S. 892 (1981); National Treasury Employ-

ees Union v. Federal Labor Relations Authority, 721

F.2d 1402 (D.C. Cir. 1983).

Petitioners attempt to muddy the waters by masking

the discriminatory union preference provisions as “a less

vigorous form of union security than an agency shop.”

(Pet. i) This contention was soundly rejected by the

Court of Appeals when it stated: “[t]hat is obviously not

the case.” (Resp. App. 12a)

To bolster their argument, petitioners rely on Abood

v. Detroit Board of Education, 431 U.S. 209 (1977).

Their reliance is misplaced. Abood involved a challenge

to the validity of a state statute which permitted a

governmental agency and a labor union to negotiate a

union-security provision that required bargaining unit

members who were not members of the union to pay a

service fee to the union. This service fee was equal to full

union dues. The collective-bargaining agreement in Abood

required a// employees in the bargaining unit to pay the

same monetary amount to the union. There was no dis-

crimination on the basis of membership or non-member-

ship in the union. Under the statute all employees paid

-9-

the same amount—full union dues.

Just last term, this Court stated:

[I]n Abood {citation omitted], we found no consti-

tutional barrier to an agency shop agreement between

a municipality and a teachers’ union insofar as the

agreement required every employee in the unit to

pay a service fee to defray the costs of collective

bargaining, contract administration, and grievance

adjustment. The union, however, could not, consis-

tently with the Constitution, collect from dissenting

employees any sums for the support of ideological

causes not germane to its duties as collective-

bargaining agent.

Ellis v. Railway Clerks, a , 104 S. Cr.

1883. 1892 (1984) (emphasis supplied).

Abood is irrelevant to the instant action, and the

Court of Appeals correctly rejected the arguments “that

this case must be decided on the basis of Bowman’s con-

stitutional claims” and “that this case is controlled in

every aspect by Abood.” (Resp. App. 15a) The union

preference provisions at issue in this case are not the

equivalent of the agency shop provisions addressed in

Abood.

Agency shops have been justified because they tend to

ensure the economic viability of the bargaining agent and

spread the permissible costs of collective bargaining

among the employees covered by the agreement. Union

preference agreements, on the other hand, do nothing to

further the purposes of collective bargaining. Their sole

-10-

function is to provide a basis for discriminating between

various classes of employees. Since prior rulings of this

Court make it clear that an exclusive representative may

not discriminate against different classes of employees,

the Court of Appeals correctly held that the petitioners

breached their duty of fair representation by negotiating

and enforcing these discriminatory union preference

clauses.

This case was properly decided and is consistent with

the prior holdings of this Court. Additionally, there is no

split in the circuits. Although this is a case of first

impression under the Tennessee Valley Authority Act,

the prior teachings of this Court under other pertinent

Statutes support the decision of the Court of Appeals.

Review by this Court is not necessary.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

JOHN JOSEPH FOGARTY

327 South Garden Avenue

Clearwater, Florida 33516

(813) 441-2871

Counsel for Respondent

JOHN WILLIAM DIETZEN

Dietzen & Dietzen

Suite 606, Dome Building

736 Georgia Avenue

Chattanooga, Tennessee 37402

(615) 267-1214

Of Counsel:

ROBERT F. GORE

8001 Braddock Road

Suite 600

Springfield, Virginia 22160

(703) 321-8510

February 28, 1985

-la-

APPENDIX

Opinion of the United States

Court of Appeals for the Sixth Circuit,

September 24, 1984

-2a-

UNITED STATES COURT OF APPEALS,

SIXTH CIRCUIT

W. EUGENE BOWMAN,

Plaintiff-Appellant,

Ve

TENNESSEE VALLEY AUTHORITY;

Salary Policy Employee Panel; and. No, 83-5414

Office and Professional Employees. :

International Union, AFL-CIO, one oe os reer

: Decided Sept. 24, 1984.

Defendants- Appellees.

Before LIVELY, Chief Judge, MARTIN, Circuit

Judge, and KRENZLER, District Judge.*

LIVELY, Chief Judge.

The question raised by this appeal is whether a

collective bargaining agreement which contains neither a

union shop nor an agency shop provision may validly

grant a preference to union members over non-union

employees in avoiding involuntary transfers.

I.

A.

The parties stipulated most of the facts. TVA is a

governmental corporation created by the Tennessee Valley

* The Honorable Alvin I. Krenzler, Judge, United States District Court

for the Northern District of Ohio, sitting by designation.

-3a-

Authority Act of 1933, 16 U.S.C. §§ 831-83ldd. as

amended (The Act). It is empowered by section 3 of the

Act, 16 U.S.C. § 831b (1976), to “provide a system of

organization to fix responsibility and promote efficiency”

among its personnel. Acting pursuant to that section,

TVA in 1950 entered into a collective bargaining

agreement, the Articles of Agreement, with the defendant

Salary Policy Employee Panel (SPEP), which in turn is

comprised of several unions. One of SPEP’s member

unions is the defendant Office and Professional Employ-

ees Iniernational Union (OPEIU) which is the collective

bargaining agent for the unit which included the position

held by the plaintiff, Eugene Bowman.

TVA hired Bowman as a real estate appraiser in its

Chattanooga, Tennessee office in 1966. He did that work

out of the Chattanooga office until the summer of 1979

when TVA decided that one of the four appraisers then

assigned to Chattanooga should be transferred to

Florence, Alabama.

In deciding who would be transferred, TVA followed a

provision in the Articles of Agreement. Supplementary

Agreement S-7 of the Articles set out the following

procedure for transfer of employees from a “surplus”

location to another duty station:

(1) First, employees at the surplus location are

given an opportunity to request transfer to the

vacant position. Among those who request transfer,

the union members have preference for transfer, and

among union members, the one with the earliest

current service date has the highest preference.

-4a-

(2) If no employee at the surplus location re-

quests transfer, an employee at the location may be

directed to transfer. In selection among employees

at the surplus location for directed transfer, the

union rmembers have preference for retention at that

location and among union members the one with

the earliest current service date has the highest

retention standing.

In accord with the agreement, TVA first asked for

volunteers for transfer. None of the four appraiser

responded. At that time, two of the four were members

of the union. One of the union members, William

Trundle, had worked for the TVA about 15 years but

had joined the union in the spring of 1979 primarily to

acquire preference status in case of transfer. Bowman did

not belong to the union and was junior in seniority to

the other non-union member. As such he was directed to

transfer. Bowman refused to report to Florence and

eventually was terminated for refusing to accept the

directed transfer.

After TVA notified Bowman he would have to transfer

but before it discharged him, the remaining non-union

appraiser, Thomas W. Elder, applied for and obtained

membership in OPEIU. Thus all three appraisers were

union members at the time Bowman was fired. TVA

then directed Marion Wright who had the most union

seniority but the least seniority with TVA to transfer to

Florence. Bowman had greater seniority than Wright.

The parties also stipulated that TVA’s policy is that

recognition of responsible unions as exclusive collective

bargaining agents for its employees provides an orderly

-S5a-

and effective means of achieving TVA’s programs. The

union preference provision, which has been part of the

Articles of Agreement since 1950, is considered a form of

union security for SPEP’s member unions. TVA deems

the purpose of the provision is to encourage employees

to participate in their unions, and thereby improve

employee relations. It considers union membership and

participation to be “positive factors of merit and effi-

ciency” relevant to selecting employees for transfer,

promotion and retention. However, TVA has rejected

proposals for other forms of union security—a union

shop or agency shop.

Bowman was discharged by TVA on October 29, 1979,

when he refused to accept the transfer from Chattanooga

to Florence. He pursued grievance procedures on three

complaints, including the one involved in this suit, that

he was terminated solely because he was not a member

of the union. After all grievances were denied he filed

this action in federal district court, naming as defendants

his employer, TVA, and his collective bargaining agents,

SPEP and OPEIU. In his complaint Bowman challenged

the provision of the collective bargaining agreement

which gives preference to union members over non-

member employees in the same bargaining unit in

avoiding involuntary transfers. He alleged that the union

preference provision constituted a breach of the unions’

duty of fair representation owed to all members of the

bargaining unit, union members and nonmembers alike.

Bowman also charged that the union preference provi-

sion violated rights guaranteed to him by the First and

on ae

-6a-

Fifth Amendments to the United States Constitution.

Upon agreement of the parties, the case was tried

without a jury. The district court entered findings of fact

and conclusions of law, deciding that Bowman failed to

establish any constitutional violations or breach of a

duty of fair representation. It entered judgment for the

defendants and dismissed the action on the merits. The

findings of fact largely reflected the stipulations of the

parties.

II.

If we are able to decide this appeal on nonconstitution-

al grounds we wil! do so and will not reach the First and

Fifth Amendment issues. In proceeding this way we

follow the longstanding practice of the Supreme Court as

set forth by Justice Brandeis, concurring in Ashwander

v. Tennessee Valley Authority, 297 U.S. 288, 347, 56

S.Ct. 466, 483, 80 L.Ed. 688 (1936) (“It is not the habit

of the Court to decide questions of a constitutional

nature unless absolutely necessary to a decision of the

case,” quoting Burton v. United States, 196 U.S. 283,

295, 25 S.Ct. 243, 245, 49 L.Ed. 482), and of this court,

e.g., Seals v. Quarterly County Court of Madison

County, Tennessee, 526 F.2d 216, 219 (6th Cir. 1975).

Accordingly, we look first at Bowman’s claim that the

district court erred in finding that there had been no

violation of a duty of fair representation.

A.

The duty of fair representation is one which arises as a

-7a-

corollary to a union’s right to act as the exclusive

representative of a group of employees. This duty is not

stated explicitly in any of the federal labor relations

laws, but has been found by the Supreme Court to arise

by implication from the right of exclusive representation

granted by the Railway Labor Act, as amended, 45

U.S.C. § 151, et seq., and the National Labor Relations

Act. as amended, 29 U.S.C. § 141, et seq. The seminal

decision of the Supreme Court on the duty of fair repre-

sentation is Steele v. Louisville & Nashville R.R. Co.,

323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). There

the railroad employer and the union representing locomo-

tive firemen agreed to a provision in a collective

bargaining agreement which had the effect of greatly

limiting the employment opportunities of Negro firemen

who were not members of the union. The Supreme

Court concluded that “Congress, in enacting the Railway

Labor Act and authorizing a labor union, chosen by a

majority of a craft, to represent the craft, did not intend

to confer plenary power upon the union to sacrifice, for

the benefit of its members, rights of the minority of the

craft, without imposing on it any duty to protect the

minority.” /d. at 199, 65 S.Ct. at 230. The Court pointed

out that a minority of the craft could not choose their

own bargaining representative or bargain individually

under the Railway Labor Act. It likened the duty of the

union to represent ali members of the craft, whether

members of the union or not, at least to the extent of

not discriminating against them, to the duty of a

legislature to treat equally with all for whom it legislates.

Id. at 198, 65 S.Ct. at 230.

Steele involved racial discrimination by a union operat-

-Ra-

ing under the Railway Labor Act, but the principles laid

down there have been applied to all types of discrimi-

nation by labor unions. This was made clear in Ford

Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97

L.Ed. 1048 (1953), and Vaca v. Sipes, 386 U.S. 171, 87

S.Ct. 903, 17 L.Ed. 2d 842 (1967), where there were no

charges that the alleged discrimination was based on

racial animus and where the controlling statute was the

National Labor Relations Act. Vaca v. Sipes involved

the failure of a union to carry a discharged employee's

grievance to the final step of arbitration under the

collective bargaining agreement. Harking back to Steele,

the Court described the duty of fair representation as “a

bulwark to prevent arbitrary union conduct against

individuals stripped of traditional forms of redress by the

provisions of federal labor law.” 3867 U.S. at 182, 87

S.Ct. at 912. The Court then set forth the criteria for

finding a union liable for a failure of fair representation:

A breach of the statutory duty of fair representa-

tion occurs only when a union's conduct toward a

member of the collective bargaining unit is arbi-

trary, discriminatory, or in bad faith.

Id. at 190, 87 S.Ct. at 916.

Under the Tennessee Valley Authority Act, 16 U.S.C.

§ 831b, TVA is exempt from the provisions of federal

civil service laws and pursuant to the definition sections

of the National Labor Relations Act, 29 U.S.C. §§

142(3), 152(2), it is exempt from that Act. However,

neither TVA nor the unions contest the district court’s

-Ja-

conclusion that the unions are subject to a duty of fair

representation. This is so because TVA’s authority to

bargain collectively with the unions as the exclusive

representatives of employees in Bowman's classification

derives from provisions of the TVA Act which broadly

empower TVA to design its own system of personnel

management. Since the duty of fair representation arises

by implication as a necessary corollary to the right of

exclusive representation, the unions are subject to the

same obligation toward non-union members of the

employee unit as if they were bargaining under the

Railway Labor Act or the National Labor Relations Act.

The defendants argue that the union preference clause

in the Articles of Agreement is not an illegal provision

which discriminates against employees who are not union

members. Rather, they assert, it is a limited union

security provision. Other union security provisions are

valid, they argue, and the one at issue here is less

burdensome on employees than either a union shop or

an agency shop. Under a union shop agreement all

employees must join the union representing their bargain-

ing unit within a stated period after being hired or suffer

discharge. In an agency shop all employees in a covered

unit must pay to the union under penalty of discharge

fees equal to their share of the cost to the union of

carrying out its duties and responsibilities as their

representative. The defendants contend that if provisions

which require membership in a union or payment to a

union as a condition of retaining employment are valid,

surely one which merely grants a special status to union

members with respect to involuntary transfers will pass

muster.

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The district court did not adopt the defendant’s [sic]

arguments. Rather, it cited Vaca v. Sipes, and discussed

the criteria set forth in that decision. The court found

that the agreement for union preference was not arbi-

trary because it served legitimate purposes of the parties

(union membership promotes better cooperation by

employees with TVA policies and practices, greater

efficiency in operations, eliminates “free riders,” and

offers a vehicle for advancement from employee status to

management). The district court also found no evidence

of bad faith on the part of the union in bargaining for

the transfer preference, and “taking into account that

this provision was forged in the crucible of collective

bargaining, the transfer provision is not unfairly discrim-

inatory.”

iil.

A.

We consider the defendants’ arguments before analyzing

the district court’s reasoning. It is true that union shops

were prohibited under the Railway Labor Act when the

Steele case was decided because union shops were

equated at the time with company unions. However, in

1950 Congress amended the RLA to permit union shop

agreements since by then most railroad employees

belonged to independent unions and Congress was

persuaded that non-union employees should not be

permitted a “free ride” by enjoying the benefits of

collective bargaining without paying any of the costs.

S.Rep. No. 2262, 8ist Cong., 2d Sess., reprinted in 1950

U.S. Code Cong. & Ad. News 4319, 4321; H.R.Rep. No.

-lla-

2811, 8lst Cong., 2d Sess. 4, quoted in International

Ass'n of Machinists v. Street, 367 U.S. 740, 762, 81 S.Ct.

1784. 1796, 6 L.Ed.2d 1141 (1961) and Railway Emploves’

Dept. v. Hanson, 351 U.S. 225, 231, 76 S.Ct. 714, 100

L.Ed. 1112 (1956).

The Supreme Court upheld the provisions of the 1950

amendments, Hanson, 351 U.S. at 238, 76 S.Ct. at 721,

but construed the statutory authorization for compulsory

unionism as requiring payment by unwilling union

members only of the costs directly related to collective

bargaining and as precluding exaction of payment for

support of political causes, Street, 367 U.S. at 768-69, 81

S.Ct. at 1799-1800. In Street, the Court repeated that in

Steele it had required a union chosen by the majority of

employees as the exclusive agent of all employees to

fairly represent all, whether members of the union or

not. /d. at 761, 81 S.Ct. at 1796. The judicially implied

duty of fair representation first articulated in Steele was

one of the bases for congressional acceptance of the

union shop amendment. It is because a union which is

an exclusive bargaining agent is prohibited from

discriminating against any member of the unit it repre-

sents that it is permitted to negotiate an agreement which

requires all members of the bargaining unit to support its

bargaining activities with payments of dues or service

fees. The corollary which Steele found to exist between

the privilege of exclusive representation and the duty of

fair representation was cited to justify the union security

device of the union shop.

The fact that the defendants might have negotiated a

union shop or agency shop agreement, but chose not to

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do so, does not relieve the unions of their responsibility

to fairly represent those employees who have chosen not

to join the union. Counsel for SPEP and OPEIU argues

that the transfer preference provision is actually a form

of agency shop agreement. That is obviously not the

case. Bowman was not required to make payments to the

unions as a condition of holding his job, and he could

not have been fired for failing to make such payments.

While the courts have said that a person can be required

to make payments to his or her representative to cover

the costs of the benefits enjoyed by all, no court has said

that a union which fails to obtain a union shop or

agency shop agreement may treat non-union members of

a bargaining unit in a discriminatory manner. Steele and

the decisions which have followed it prohibit such

treatment.

The district court appears to have held that no

discrimination was involved in regard to the union

preference provision because it was “forged in the

crucible of collective bargaining,” and that this finding

determines the issue of fair representation. We find error

in this reasoning in two respects. First, the fact that a

provision which favors some members of a unit over

others results from collective bargaining does not guar-

antee that it will avoid being condemned as discrimina-

tory. The duty of fair representation requires the

representative to bargain for a contract which does not

discriminate against minority members of the unit.

Steele, 323 U.S. at 201, 65 S.Ct. at 231. An exclusive

bargaining representative has a duty “fairly to represent

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all of those employees [in the bargaining unit], both in

its collective bargaining with [the employer]... and in

its enforcement of the resulting collective bargaining

agreement.” Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at

910 (citations omitted). See also Journeymen Pipe Fitters

Local 392 v. N.L.R.B., 712 F.2d 225, 228 (6th Cir. 1983)

(“As the exclusive labor representative of employees in a

bargaining unit, a union has a statutorily-imposed duty

to fairly represent all of the employees, union members

or not, in the collective bargaining process and in the

administration of the resulting labor contract.”). (Empha-

sis supplied in both quotations.) The duty of fair repre-

sentation arises first in the negotiation of a collective

bargaining agreement, and the fact that an employer and

a union agree to a provision which favors one group of

unit employees over another does not immunize that

provision from attack on the ground of unfair representa-

tion.

The second flaw in the district court’s analysis lies in

its emphasis on bad faith. In its opinion the district court

quoted from a law review comment to the effect that “an

employee disadvantaged by a contract has no claim of

unfair representation against his union unless he can

demonstrate actual bad faith in negotiation.” The quoted

language does not accurately reflect the duty of fair rep-

resentation as interpreted by this court. In Farmer v.

ARA Services, Inc., 660 F.2d 1096, 1103 (6th Cir. 1981),

the court held that bad faith or fraud is not a necessary

element of a charge against a union for violation of its

duty of fair representation. Similarly, in Ruzicka v.

General Motors Corp., 523 F.2d 306, 310 (6th Cir. 1975),

cert. denied, U.S. __. , 104 S.Ct. 424, 78 L.Ed.2d

-14a-

359 (1983), the court stated:

We believe that the District Court misread Vaca

when it held that “bad faith” must be read into the

separate and independent standards of “arbitrary”

or “discriminatory” treatment. Union action which

is arbitrary or discriminatory need not be motivated

by bad faith to amount to unfair representation.

We find the same error in the district court’s treatment

of the separate standards in the present case.

C.

We conclude that the union preference provision does

discriminate unlawfully against Bowman and other mem-

bers of the bargaining unit who do not belong to the

unions. The unions enjoy the position of exclusive

representatives of employees in Bowman’s classification

under a contract which permits membership within the

unit regardless of whether an employee has chosen to

affiliate with a union. The duty of fair representation,

under these circumstances, prohibited the unions from

bargaining for or agreeing to any provision which singles

out the employees in the unit who are not union

members for disparate treatment. As the court stated in

Thompson v. Brotherhood of Sleeping Car Porters, 316

F.2d 191, 198-99 (4th Cir. 1963):

At least in the absence of a valid union shop

agreement—there is no such agreement here—

disparate treatment in representation cannot be

tolerated when based on the disadvantaged individ-

ual’s or group’s non-membership in the statutory

bargaining agent.

-15Sa-

In effect the union preference provision denied

Bowman, in the instance of an involuntary transfer, of

the benefit of seniority which he had acquired in 13 years

of employment by TVA. Absent this provision he could

have required the transfer to Florence of one of the

appraisers with less seniority. As the court in Jones v.

Trans World Airlines, 495 F.2d 790, 797 (2d Cir. 1974),

stated:

Discrimination in seniority based on nothing else

but union membership is arbitrary and invidious

and violates the union’s duty to represent fairly all

members of the bargaining unit.

IV.

Both TVA and the unions insist that this case must be

decided on the basis of Bowman’s constitutional claims.

We disagree. A union which represents groups of

employees has a duty of fair representation which derives

from its statutory right to be the exclusive representative

of all the covered employees, not from a constitutional

right of the employees. An act of a union may violate

both its duty of fair representation and some constitution-

al right of the disadvantaged employees, but this is not

necessarily true in all cases. Both defendants maintain

that this case is controlled in every aspect by Abood v.

Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782,

52 L.Ed.2d 261 (1977). In Abood the Supreme Court

upheld an agency shop agreement to the extent that it

required employees who were in the bargaining unit but

were not union members to pay “service charges” to the

union for “collective-bargaining, contract administration,

and grievance-adjustment purposes.” /d. at 232. The only

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issue in Abood was the constitutionality of this agency

shop agreement. This agreement was attacked on the

ground that it violated First Amendment rights of non-

union teachers. There was no separate claim that the

negotiation and enforcement of the agreement violated

the union’s statutory duty of fair representation. Abood

was concerned only with the constitutional validity of a

particular agreement, an issue we do not reach because

this case can be decided on a non-constitutional ground

which was pled and argued as a discrete claim for relief.

CONCLUSION

In his complaint the plaintiff sought declaratory and

injunctive relief, reinstatement with seniority rights and

damages. Plaintiff is entitled to declaratory and injunctive

relief because of the invalidity of the union preference

clause in the Articles of Agreement. He is also entitled to

reinstatement since his discharge resulted solely from his

refusal to comply with an order based on an unlawful

provision of the Articles. The case must be remanded for

a determination of damages in light of the Supreme

Court’s recent decision in Bowen v. United States Postal

Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402

(1983). In Bowen the Court held that a union may be

held primarily liable for that part of a wrongfully

discharged employee’s damages caused by the union’s

breach of its duty of fair representation. Prior to Bowen

this court stated in Farmer v. ARA Services, Inc., 660

F.2d at 1107:

Where, as in the present case, the union’s breach of

its statutory duty results also from its wrongful

Participation in the breach of contract or from the

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negotiation of discriminatory contractual! provisions,

then the union may be held jointly and severally

liable with the employer or its liability for damages

may be apportioned to the extent that it shares

responsibility for the damage.

The judgment of the district court is reversed and the

cause is remanded for further proceedings as required by

this opinion. The plaintiff will recover his costs on

appeal.