American Federation of Government Employees, Local 2126, AFL-CIO, San Francisco, California (Respondent) and Julian J. Reimonenq (Complainant) 

 



[ v01 p993 ]
01:0993(112)CO
The decision of the Authority follows:


 1 FLRA No. 112
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2126, AFL-CIO,
 SAN FRANCISCO, CALIFORNIA
 Respondent
 
 and
 
 JULIAN J. REIMONENQ
 Complainant
 
                                            Assistant Secretary
                                            Case No. 70-6211(CO)
 
                            DECISION AND ORDER
 
    ON MARCH 29, 1979, ADMINISTRATIVE LAW JUDGE THOMAS SCHNEIDER ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  /1/
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 70-6211(CO) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 20, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    CURTIS TURNER
 
    NATIONAL REPRESENTATIVE, AFGE
 
    620 CONTRA COSTA BOULEVARD
 
    SUITE 206
 
    PLEASANT HILL, CALIFORNIA 94523
 
                            FOR THE RESPONDENT
 
    WILLIAM EZZY
 
    PAST PRESIDENT, AFGE LOCAL 2126
 
    315 BALBOA COURT
 
    ALAMEDA, CALIFORNIA 94501
 
                            FOR THE COMPLAINANT
 
    BEFORE:  THOMAS SCHNEIDER
 
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
 AMENDED;  THE NOTICE OF HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR
 OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES
 DEPARTMENT OF LABOR;  AND THE PROCEEDING WAS CONDUCTED BEFORE THE
 ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS.  THIS DECISION,
 PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44,
 NO. 1, JANUARY 2, 1979, PAGES 708, IS ISSUED IN THE NAME OF THE
 AUTHORITY AND, IN ACCORDANCE WITH SECTION 2400.2 (5 C.F.R. 2400.2) OF
 THE TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE
 AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT
 SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL
 REGULATIONS, PART 201, ET SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL
 BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN THE
 RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.
 
    JULIAN J. REIMONENQ, ("COMPLAINANT") FILED A COMPLAINT AND AN AMENDED
 COMPLAINT AGAINST LOCAL 2126 OF THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES (THE "UNION") CHARGING THAT THE PRESIDENT OF THE UNION
 VIOLATED EXECUTIVE ORDER 11491, AS AMENDED ("THE ORDER"), BY (1)
 REFUSING TO REPRESENT HIM IN HIS "EEO CASE, COMPLAINT #1," (2) REFUSING
 TO BE TECHNICAL ADVISOR IN HIS EEO COMPLAINT, AND (3) BY STATING THAT
 HIS EEO CASE HAS NO MERIT.
 
    THE REGIONAL ADMINISTRATOR, SAN FRANCISCO REGION, LABOR MANAGEMENT
 SERVICES, AFTER INVESTIGATING, SET THE MATTER FOR HEARING.  SAID HEARING
 WAS HELD BEFORE ME IN SAN FRANCISCO, CALIFORNIA, ON NOVEMBER 16, 21 AND
 22, 1978.  COMPLAINANT WAS REPRESENTED BY MR.  WILLIAM EZZY, A PAST
 PRESIDENT OF THE UNION AND THE UNION WAS REPRESENTED BY MR. CURTIS
 TURNER, NATIONAL REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES.  BRIEFS WERE FILED BY BOTH PARTIES, THE LAST ONE BEING
 RECEIVED ON DECEMBER 11, 1978.
 
                     FINDINGS OF FACT AND CONCLUSIONS
 
    BACKGROUND
 
    AT ALL RELEVANT TIMES THE UNION WAS ACCORDED EXCLUSIVE RECOGNITION BY
 AND HAD ENTERED INTO A NEGOTIATED AGREEMENT WITH REGION 9, GENERAL
 SERVICES ADMINISTRATION ("GSA").  COMPLAINANT WAS A CLERK (GS-4),
 EMPLOYED BY GSA FOR TEN YEARS, AND A MEMBER OF THE UNION.
 
    IT BECAME APPARENT AT THE HEARING THAT THERE WERE SOME PERSONAL
 DIFFERENCES AT LEAST BETWEEN THE PRESIDENT OF THE UNION, LILA BELL, AND
 ONE OF THE WITNESSES, A FORMER VICE-PRESIDENT OF THE UNION, ELIZABETH
 TOR.  MANY OF THE OTHER WITNESSES AND PARTICIPANTS IN THE CASE,
 INCLUDING THE REPRESENTATIVES OF THE PARTIES, WERE ALLIED WITH ONE SIDE
 OR THE OTHER.  THIS FACTIONALISM CONTRIBUTED TO OBSCURING THE ISSUES
 UPON WHICH THIS CASE TURNS.  FOR EXAMPLE, NO COPY OF A COMPLAINT IN
 COMPLAINANT'S "EEO CASE, COMPLAINT #1" WAS EVER INTRODUCED AND THERE WAS
 SOME DISPUTE AS TO WHAT FACTS GAVE RISE TO SAID EEO COMPLAINT.  IT
 APPARENTLY ALLEGED DISCRIMINATION ON THE BASIS OF SEX AND RACE (TR.
 172).  /3/ COMPLAINANT IS MALE AND CONSIDERS HIMSELF LATIN (TR.
 171-172).  HE FEELS THAT GSA MANAGEMENT, AND IN PARTICULAR HIS
 SUPERVISORS, ONE OF WHOM, MR.  MILLER, IS BLACK, AND ANOTHER ONE OF
 WHOM, MR. DEA, IS ORIENTAL, WILL BLOCK THE PROGRESS OF MALES WHO ARE
 NEITHER ORIENTAL OR BLACK.  MANAGEMENT'S ACT OF ALLEGED DISCRIMINATION
 APPARENTLY WAS A LETTER OF INFRACTION COMPLAINANT RECEIVED (R-22) /3/
 FOR ALLEGED RUDENESS TO SUPERVISOR DEA ON SEPTEMBER 8, 1977.  /4/ THE
 LETTER OF INFRACTION WAS ONE OF A SERIES OF DISCIPLINARY ACTIONS WHICH
 GSA MANAGEMENT TOOK AGAINST COMPLAINANT, ULTIMATELY RESULTING IN HIS
 TERMINATION IN JUNE OR JULY 1978.  COMPLAINANT BELIEVES THAT ALL THE
 DISCIPLINARY ACTIONS AGAINST HIM WERE SIMPLY PRETEXTS TO GET RID OF HIM.
  HE HAS FILED A TOTAL OF FOUR EEO COMPLAINTS, ALL OF WHICH WERE STILL
 PENDING IN AN UNSPECIFIED FORUM AT THE TIME OF THE HEARING.
 
    THE UNION'S HANDLING OF THE FIRST OF THESE EEO COMPLAINTS WAS THE
 FOCUS OF COMPLAINANT'S COMPLAINT AND OF THE HEARING.  THERE WAS NO
 HEARING ON THAT FIRST EEO COMPLAINT UNTIL JULY 19, 1978.
 
    ON JANUARY 19, 1978, ELIZABETH TOR RESIGNED AS VICE-PRESIDENT OF THE
 UNION.  ON JANUARY 24 SHE ASKED PRESIDENT BELL BY LETTER WHETHER BELL
 WOULD STILL ACT AS TECHNICAL ADVISOR IN COMPLAINANT'S EEO CASE.  TOR HAD
 BEEN REPRESENTING COMPLAINANT, BUT WANTED HELP.  PRESIDENT BELL REPLIED
 AS FOLLOWS:
 
    "THE UNION HAS REVIEWED THE HISTORY OF THE CASE INVOLVED AND FEELS
 THAT IT IS WITHOUT
 
    MERIT.  WE WOULD NOT PROCEED INTO THE FORMAL HEARING STAGE WITH THE
 INFORMATION THAT HAS BEEN
 
    DEVELOPED.  IN ANSWER TO YOUR QUESTION, PARAGRAPH 4 OF YOUR LETTER
 DATED JANUARY 24, 1978,
 
    NO.  I WOULD RECOMMEND YOU FIND ANOTHER PERSON TO ASSIST AS TECHNICAL
 ADVISOR IF IT IS YOUR
 
    DECISION TO MOVE FORWARD INTO THE HEARING." (C-D).  /3/
 
    BELL ALSO WROTE TO MANAGEMENT AS FOLLOWS:
 
    "THIS IS TO NOTIFY YOU THAT MRS. ELIZABETH TOR (BETTY) IS NO LONGER
 HOLDING OFFICE IN LOCAL
 
    2126.  SHE RESIGNED AS VICE PRESIDENT BY LETTER DATED JANUARY 19,
 1978.  THE EXECUTIVE BOARD
 
    VOTED UNANIMOUSLY TO EXCEPT (SIC) THE RESIGNATION ON JANUARY 24TH,
 EFFECTIVE TODAYS DATE.
 
    MRS. TOR WILL NOT BE ACTING ON BEHALF OF THE LOCAL IN ANY MATTER
 UNTIL FURTHER
 
    NOTIFICATION, THEREFORE, ANY TIME SHE MAY WISH TO SIGN OUT FOR IN ANY
 REPRESENTATIONAL DUTIES
 
    WILL HAVE TO COME UNDER REPRESENTATION AS A GSA EMPLOYEE AND UNDER
 GSA ORDERS.
 
    I WISH TO TAKE THIS OPPORTUNITY TO THANK YOU FOR ALLOWING BETTY TO
 REPRESENT THE EMPLOYEES
 
    IN THE PAST WITHOUT INTERFERENCE, IT HAS BEEN GREATLY APPRECIATED BY
 THE LOCAL.  THANK YOU.
 
    SINCERELY,
 
    (S) LILA BELL
 
    LILA BELL, PRESIDENT, AFGE LOCAL 2126" (C-C)
 
    COMPLAINANT CONTENDS THAT THESE LETTERS FORM LILA BELL PREVENTED
 BETTY TOR FROM REPRESENTING, OR CONTINUING TO REPRESENT HIM.  HE ALSO
 CONTENDS THAT BELL HAD NO BASIS FOR SAYING THAT HIS CASE "IS WITHOUT
 MERIT." HE CONTENDS THAT THE UNION HAS AN OBLIGATION UNDER SECTION 10(E)
 OF THE ORDER TO REPRESENT ALL EMPLOYEES WITHOUT DISCRIMINATION, AND
 THEREFORE HAD AN OBLIGATION TO REPRESENT HIM.  COMPLAINANT ALSO IMPLIES
 SOME IMPROPER COLLUSION BETWEEN LILA BELL AND GSA MANAGEMENT AGAINST
 COMPLAINANT.  NO EVIDENCE SUPPORTS THIS IMPLICATION.
 
    THUS, THIS CASE TURNS UPON THE QUESTION WHETHER THE UNION BREACHED
 ITS DUTY OF FAIR REPRESENTATION.
 
    FAIR REPRESENTATION
 
    THE UNION CONTENDS THAT IT HAD NO DUTY TO REPRESENT CLAIMANT IN AN
 EEO COMPLAINT BECAUSE THAT IS A STATUTORY APPEALS PROCEDURE WHICH CANNOT
 BE THE SUBJECT OF THE NEGOTIATED AGREEMENT BETWEEN THE UNION AND THE
 AGENCY.  ALTERNATIVELY, IT CONTENDS THAT IN FACT IT REPRESENTED HIM.  IT
 ALSO CONTENDS THAT ITS INVESTIGATION WAS THOROUGH.  LASTLY THE UNION
 CONTENDS THAT THE DEPARTMENT OF LABOR HAD NO JURISDICTION TO HEAR THIS
 COMPLAINT SINCE EEO MATTERS WERE HEARD UNDER CIVIL SERVICE COMMISSION
 PROCEDURES.  OF COURSE, I WILL NOT DECIDE THE MERITS OF COMPLAINANT'S
 EEO COMPLAINTS;  THEY ARE BEING LITIGATED ELSEWHERE.  I MUST, HOWEVER,
 ADDRESS THE QUESTION WETHER THE UNION VIOLATED EXECUTIVE ORDER 11491.
 
    THE CHARGE HERE IS AGAINST THE UNION.  GSA IS NOT A PARTY.  THEREFORE
 I MAY NOT DETERMINE WHETHER MANAGEMENT WAS JUSTIFIED IN ITS ACTIONS
 AGAINST COMPLAINANT OR WHETHER IT ACTED FROM IMPROPER MOTIVES OF RACE OR
 SEX DISCRIMINATION.  NOTHING IN THIS OPINION IMPLIES ANY OPINION OF THE
 MERITS OF COMPLAINANT'S EEO COMPLAINTS.  THE ISSUE OF FAIR
 REPRESENTATION BY THE UNION IS ENTIRELY DISTINCT AND SEPARATE.  VACA V.
 SIPES, (1967) 386 U.S. 171, 192-193.
 
    THE EVIDENCE SHOWS THAT, UNTIL SHE RESIGNED AS VICE-PRESIDENT OF THE
 UNION ON JANUARY 19, 1978, ELIZABETH TOR DID, IN FACT, INVESTIGATE
 COMPLAINANT'S COMPLAINTS;  AND REPRESENTED HIM IN HIS DEALINGS WITH EEO
 COUNSELORS AND INVESTIGATORS.  THEREAFTER SHE FELT PRECLUDED FROM DOING
 SO BECAUSE SHE WAS NEITHER VICE-PRESIDENT OF THE UNION NOR A SHOP
 STEWARD.  BUT, AS THE UNION POINTS OUT, SHE WAS FREE TO DO SO AS AN
 INDIVIDUAL EMPLOYEE OF GSA.  SHE TESTIFIED THAT SHE CONTINUED TO ASSIST
 THE COMPLAINANT, EVEN AT THE EEO HEARING IN JULY, AT WHICH TIME HE WAS
 FORMALLY REPRESENTED BY COUNSEL.
 
    IT IS THE LAW THAT THE UNION, AS SUCH, HAD NO DUTY TO REPRESENT
 COMPLAINANT IN HIS EEO COMPLAINT.  FPM LETTER 713-29 (P. 8);  EXECUTIVE
 ORDER 11491, SECTION 13(A);  P.O. 92-261, SECTION 11, 42 U.S.C.
 2000E-16(1976).  THUS, THE VICE-PRESIDENT UNDERTOOK ACTIVITY ON
 COMPLAINANT'S BEHALF BEYOND THE CALL OF DUTY.  COMPLAINANT DOES NOT
 SUGGEST OTHERWISE;  HIS COMPLAINT IS NOT DIRECTED AT FORMER
 VICE-PRESIDENT TOR, BUT AT PRESIDENT BELL.
 
    I FIND THAT PRESIDENT BELL ADEQUATELY INVESTIGATED COMPLAINANT'S
 COMPLAINTS.  IN THIS CONNECTION IT IS NOTE-WORTHY THAT GSA MANAGEMENT
 TOOK A NUMBER OF ACTIONS AGAINST COMPLAINANT, WHICH HE CONSIDERED
 "HARASSMENT," AND WHICH HE WANTED REMEDIED.  IT IS NOT POSSIBLE FROM THE
 RECORD MADE BEFORE ME TO PINPOINT EXACTLY WHICH ACTIONS RESULTED IN THE
 "FIRST EEO COMPLAINT." SUCH GSA MANAGEMENT ACTIONS INCLUDED (AMONG MANY
 OTHERS REFERRED TO BUT NOT INTRODUCED AS EXHIBITS) A POOR EMPLOYEE
 PERFORMANCE RATING (C-A), AND A CHARGE OF ONE-HOUR AWOL ON MAY 3, 1977,
 AS A RESULT OF COMPLAINANT ALLEGEDLY USING A PUBLIC PHONE FOR 1 HOUR AND
 40 MINUTES (R-17, R-19), AS WELL AS THE AFOREMENTIONED (SUPRA, P. 3)
 RECORD OF INFRACTION ALLEGING LOUD AND DISRESPECTFUL CONDUCT ON
 SEPTEMBER 8 (R-22).  BELL'S ACTIVITY ON BEHALF OF COMPLAINANT INCLUDED
 MEETINGS WITH COMPLAINANT, AND WITH THE SUPERVISORS INVOLVED.  IT IS
 EVIDENT THAT BELL'S STYLE WAS TO ATTEMPT TO NEGOTIATE AND COMPROMISE
 WITH MANAGEMENT.  THUS, SHE TRIED TO GET THE AWOL CHANGED TO TIME
 CHARGED AGAINST ANNUAL LEAVE, AND TO GET MORE TIME FOR COMPLAINANT TO
 IMPROVE HIS POOR PERFORMANCE RATING, AS WELL AS UPDATING THIS "FORM
 171," SO THAT HE WOULD BE ABLE TO APPLY FOR OTHER POSITIONS.  THIS IS
 HARDLY EVIDENCE OF A BREACH OF THE DUTY OF FAIR REPRESENTATION.  SEE,
 E.G.  BREWERY WORKERS (MILLER BREWING CO.), 195 NLRB 772, 79 LRRM
 1538(1972).
 
    BELL ALSO TESTIFIED THAT COMPLAINANT ADMITTED BEING "A TELEPHONE
 ECCENTRIC" AND COMING TO WORK LATE BECAUSE HE WAS NOT BEING PAID ENOUGH.
  COMPLAINANT DENIED THESE ADMISSIONS.  I BELIEVE COMPLAINANT TO THE
 EXTENT THAT HE DID NOT COIN THE PHRASE "TELEPHONE ECCENTRIC" TO MEAN
 SOMEONE WHO USES THE PHONE FOR UNDULY LONG PERIODS, BUT I BELIEVE BELL'S
 TESTIMONY IN SUBSTANCE THAT COMPLAINANT ADMITTED USING THE PUBLIC
 TELEPHONE FOR LONG PERIODS AND COMING TO WORK LATE.
 
    IN ADDITION TO THESE ADMISSIONS BY COMPLAINANT, BELL WAS SHOWN
 INFORMAL LETTERS BY GSA MANAGEMENT TO COMPLAINANT THAT SHOWED THAT GSA
 MANAGEMENT HAD COMPLAINED ABOUT COMPLAINANT'S ATTITUDE ON MANY OCCASIONS
 DATING BACK TO 1972, INCLUDING SEVERAL IN 1976.  THESE LETTERS
 CONTRADICTED COMPLAINANT'S ASSERTION THAT HE HAD GOTTEN ALONG FINE WITH
 SUPERVISORS PRIOR TO MR.  DEA.  COMPLAINANT CONTENDS THAT THESE WERE
 UNOFFICIAL LETTERS THAT WERE NOT PART OF HIS PERSONNEL FILE, AND THAT
 GSA MANAGEMENT ACTED IMPROPERLY IN MAINTAINING THEM.  EVEN IF GSA
 MANAGEMENT ACTED IMPROPERLY IN THIS CONNECTION, THE IMPROPRIETY CANNOT
 BE IMPUTED TO BELL.  SHE BEHAVED REASONABLY IN ACCEPTING THIS EVIDENCE
 TOGETHER WITH ALL OTHER KNOWLEDGE THAT SHE OBTAINED IN EVALUATING
 COMPLAINANT'S PROBLEMS WITH GSA MANAGEMENT.
 
    FROM THE FOREGOING, AS WELL AS FROM HER LETTER TO TOR OF JANUARY 25,
 1978, (C-D) IT IS CLEAR THAT BELL REACHED THE CONCLUSION THAT
 COMPLAINANT HAD NO CHANCE OF WINNING AT A FORMAL HEARING.  COMPLAINANT'S
 WITNESSES TESTIFIED, AND I CREDIT THEIR TESTIMONY DESPITE BELL'S DENIAL,
 THAT BELL SAID TO MR. MILLER, COMPLAINANT'S SUPERVISOR, THAT
 COMPLAINANT'S FIRST EEO COMPLAINT "HAD NO MERIT." IF COMPLAINANT AND
 BELL HAD A CLIENT-ATTORNEY RELATIONSHIP AND THE UNION AND GSA MANAGEMENT
 HAD A STRICTLY ADVERSARY RELATIONSHIP, THIS COMMENT MIGHT BE IMPROPER.
 BUT THE DUTY OF FAIR REPRESENTATION THAT A LABOR ORGANIZATION OWES TO
 ALL UNIT MEMBERS UNDER SECTION 10(E) OF THE ORDER, IS NOT THE SAME DUTY
 AN ATTORNEY OWES HIS CLIENT.  SEE, SERVICE EMPLOYEES, LOCAL 579 (BEVERLY
 MANOR CONVALESCENT CENTER), 229 NLRB 629, 95 LRRM 1156(1977).  A LABOR
 ORGANIZATION HAS NO DUTY TO "BLINDLY REPRESENT THE CAUSES" OF ITS
 MEMBERS.  LOCAL R7-51, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
 (NAGE) AND CHARLES A. QUILICO, A/SLMR 896, 7 A/SLMR 775, 782(1977).  IN
 REPRESENTING ALL MEMBERS OF THE UNIT, A UNION CANNOT AFFORD TO IMPAIR
 ITS CREDIBILITY WITH MANAGEMENT BY CHAMPIONING CAUSES IT BELIEVES TO BE
 FRIVOLOUS.  EVEN A LATER DETERMINATION THAT THE CAUSE HAD MERIT WOULD
 NOT PROVE A BREACH OF THE DUTY OF FAIR REPRESENTATION, SO LONG AS THE
 UNION'S POSITION IS BASED ON GOOD FAITH.  VACA V. SIPES, SUPRA (1967)
 386 U.S. 171, 191-193.  AN ATTORNEY, ON THE OTHER HAND HAS A DUTY TO
 REPRESENT HIS CLIENT ZEALOUSLY TO THE LIMITS OF THE LAW REGARDLESS OF
 HIS PERSONAL BELIEF.  SEE ABA CODE OF PROF. RESPONSIBILITY, CANON 7
 (1978).  THUS, BELL'S STATEMENT THAT COMPLAINANT'S CASE HAS NO MERIT WAS
 PERHAPS UNNECESSARY OR IMPRUDENT, BUT IT DID NOT VIOLATE HER DUTY AS
 UNION PRESIDENT, NOR THE UNION'S DUTY OF FAIR REPRESENTATION.  TO
 ESTABLISH A BREACH OF THE DUTY OF FAIR REPRESENTATION, A MEMBER MUST
 SHOW HE WAS TREATED DIFFERENTLY FROM OTHER MEMBERS.  WHITTEN V. ANCHOR
 MOTOR FREIGHT, 521 F.2D 1335, 90 LRRM 2161 (CA6, 1975).  ALTHOUGH THAT
 CASE AROSE IN THE PRIVATE SECTOR, THERE IS NO REASON FOR POSTULATING A
 DIFFERENT STANDARD IN THE PUBLIC SECTOR.  THERE IS NO EVIDENCE HERE THAT
 BELL OR THE UNION WOULD HAVE TREATED DIFFERENTLY THE COMPLAINT OF ANY
 OTHER MEMBER WHO WAS SIMILARLY SITUATED.
 
    AFTER TOR RESIGNED AS VICE-PRESIDENT OF THE UNION IN JANUARY 1978,
 COMPLAINANT ATTEMPTED TO ENLIST THE AID OF NUMEROUS OTHER SHOP STEWARDS
 IN HIS ULTIMATELY LOSING BATTLE TO RETAIN HIS JOB.  SOME, LIKE FRANK
 MORENO WERE WILLING TO HELP, BUT COMPLAINANT WENT ELSEWHERE.  MORENO
 FELT THAT SOME OF COMPLAINANT'S COMPLAINTS AGAINST GSA MANAGEMENT WERE
 VALID, BUT THAT HE BROUGHT OTHER PROBLEMS ON HIMSELF.  MORENO COULD FIND
 HARASSMENT BY GSA MANAGEMENT, BUT NO DISCRIMINATION.  THIS LESS THAN
 FULL SUPPORT FORM MORENO COOLED COMPLAINANT ON MORENO.
 
    OTHER STEWARDS DECLINED TO HELP COMPLAINANT BECAUSE THEY WERE ADVISED
 TO KEEP "HANDS OFF" BY PRESIDENT BELL AND NATIONAL REPRESENTATIVE
 TURNER.  BELL DENIED THAT SHE EVER SAID "HANDS OFF." I BELIEVE,
 NEVERTHELESS, THAT SHE DID DISCOURAGE SEVERAL SHOP STEWARDS FROM GETTING
 INVOLVED IN THEIR CAPACITY AS STEWARDS.  HOWEVER, SUCH DISCOURAGEMENT
 WAS PROPER SINCE THE UNION, AS SUCH, HAS NO DUTY TO REPRESENT AN
 EMPLOYEE IN AN EEO COMPLAINT.  SUPRA, P. 5.  FURTHERMORE, BETTY TOR WAS
 STILL OFFICIALLY REPRESENTING COMPLAINANT SINCE HER DESIGNATION (R-30)
 HAD NEVER BEEN REVOKED.
 
    BELL'S REFUSAL TO BE TECHNICAL ADVISOR
 
    I CONCLUDE THAT BELL'S REFUSAL TO BE A TECHNICAL ADVISOR IN
 COMPLAINANT'S EEO HEARING, WAS NOT A VIOLATION OF THE ORDER.  THE UNION
 INTRODUCED CONSIDERABLE EVIDENCE TO SHOW THAT, ABSENT SPECIAL
 ARRANGEMENTS, IT WAS IMPERMISSIBLE TO HAVE BOTH A TECHNICAL ADVISOR AND
 A REPRESENTATIVE AT A HEARING.  BUT EVEN ASSUMING THAT SPECIAL
 ARRANGEMENTS COULD HAVE BEEN MADE, THERE IS NOTHING TO COMPEL BELL IN
 PARTICULAR TO SERVE AS TECHNICAL ADVISOR AGAINST HER WILL.  FURTHER, THE
 HEARING WAS NOT IMMINENT WHEN BELL DECLINED TO SERVE.  IN FACT THE
 HEARING DID NOT TAKE PLACE UNTIL ABOUT SIX MONTHS LATER.
 
    CONCLUSION
 
    IN SUMMARY, I CONCLUDE THAT THE RESPONDENT UNION DID NOT ACT
 ARBITRARILY OR PERFUNCTORILY OR IN BAD FAITH, AND THUS DID NOT BREACH
 ITS DUTY OF FAIR REPRESENTATION TO THE COMPLAINANT, UNDER ANY OF THE
 POSSIBLE INTERPRETATIONS OF THAT DUTY.  SEE BARHITTE V. KROGER CO., 99
 LRRM 2663 (DC MICH. 1978) FOR A DETAILED REVIEW OF THE CASES.
 
                                   ORDER
 
    PURSUANT TO SECTION 6 OF EXECUTIVE ORDER, 11491, AS AMENDED, AND
 SECTION 203.26(C) OF THE REGULATIONS (29 C.F.R. 203.26(C)) AND THE
 TRANSITION RULES AND REGULATIONS, 5 C.F.R. PART 2400, 44 FED.REG. 7
 (JANUARY 2, 1979), THE FEDERAL LABOR RELATIONS AUTHORITY HEREBY ORDERS
 THAT THE COMPLAINT OF JULIAN J. REIMONENQ IS DISMISSED IN ITS ENTIRETY.
 
                             THOMAS SCHNEIDER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 29, 1979
 
    SAN FRANCISCO, CALIFORNIA
 
    TS:SCM
 
    /1/ THE COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
 JUDGE'S DECISION AND ORDER WHICH WERE UNTIMELY AND THUS WERE NOT
 CONSIDERED.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ THE RECORD IS REFERRED TO AS FOLLOWS:
 
    R REFERS TO RESPONDENT'S EXHIBITS;  C REFERS TO COMPLAINANT'S
 EXHIBITS;  TR. REFERS TO PAGES IN THE TRANSCRIPT.
 
    /4/ R-22 SPECIFIES SEPTEMBER 9, BUT THE PARTIES AGREE THE EVENT
 HAPPENED ON SEPTEMBER 8.