American Federation of Government Employees, Local 987, AFL-CIO (Respondent) and Nedra T. Bradley (Complainant) 



[ v03 p715 ]
03:0715(115)CO
The decision of the Authority follows:


 3 FLRA No. 115
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 987
 Respondent
 
 and
 
 NEDRA T. BRADLEY
 Complainant
 
                                            Assistant Secretary
                                            Case No. 40-9386 (CO)
 
                            DECISION AND ORDER
 
    ON NOVEMBER 30, 1979, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON 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.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    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 FED. REG. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (45 FED. REG. 3487, JANUARY 17, 1980).  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, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 40-9386(CO) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 23, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED BELOW:
 
    PETER BROIDA, ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES
 
    1325 MASSACHUSETTS AVE., N.W.
 
    WASHINGTON, D.C.  20005
 
    JOHN C. LEGGETT
 
    206 TODD CIRCLE
 
    WARNER ROBINS, GEORGIA
 
    JAMES GIBBS
 
    P. O. BOX 601
 
    ROCHELLE, GEORGIA
 
    KENNETH T. BLAYLOCK, PRESIDENT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVE., N.W.
 
    WASHINGTON, D.C.  20005
 
    NOVEMBER 30, 1979
 
    MEMORANDUM TO:  THE FEDERAL LABOR RELATIONS AUTHORITY
 
    FROM:  JOHN H. FENTON
 
                         ADMINISTRATIVE LAW JUDGE
 
    SUBJECT:  AMERICAN FEDERATION OF GOVERNMENT
 
                       EMPLOYEES, LOCAL 987, AFL-CIO
 
                                RESPONDENT
 
    AND
 
    NEDRA T. BRADLEY
 
                                COMPLAINANT
 
    CASE NO. 40-9386(CO)
 
    PURSUANT TO 29 C.F.R. 203.23(B) AS RECENTLY AMENDED BY 5 C.F.R.
 2400.2 (FEDERAL REGISTER, VOL. 44, NO. 1, TUESDAY, JANUARY 2, 1979), I
 AM HEREBY TRANSFERRING THE ABOVE CASE TO THE AUTHORITY.  ENCLOSED ARE
 COPIES OF MY DECISION AND THE TRANSMITTAL FORM SENT TO THE PARTIES.  I
 AM TRANSMITTING DIRECTLY TO THE AUTHORITY THE ORIGINAL AND ADDITIONAL
 COPIES OF MY DECISION AS WELL AS THE TRANSCRIPT, EXHIBITS, BRIEFS,
 COPIES OF THE SERVICE SHEET AND TRANSMITTAL FORM.
 
    ENCLOSURES
 
                                 NOTICE OF
 
                     TRANSMITTAL OF DECISION AND ORDER
 
    THE ABOVE-ENTITLED CASE HAVING BEEN HEARD BEFORE THE UNDERSIGNED
 ADMINISTRATIVE LAW JUDGE PURSUANT TO THE REGULATIONS OF THE ASSISTANT
 SECRETARY FOR LABOR-MANAGEMENT RELATIONS, AND THE UNDERSIGNED HAVING
 PREPARED HIS DECISION AND ORDER, A COPY OF WHICH IS ATTACHED HERETO, AND
 HAVING TRANSFERRED THE CASE TO FEDERAL LABOR RELATIONS AUTHORITY
 PURSUANT TO 29 C.F.R. 203.23(B), AS RECENTLY AMENDED BY 5 C.F.R. 2400.2
 (FEDERAL REGISTER, VOL. 44, NO. 1, TUESDAY, JANUARY 2, 1979),
 
    PLEASE BE ADVISED THAT IF ANY PARTY WISHES TO FILE EXCEPTIONS TO THE
 ATTACHED DECISION AND ORDER PURSUANT TO SECTION 203.23(C) OF THE
 REGULATIONS, SUCH EXCEPTIONS MUST BE RECEIVED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY IN WASHINGTON, D.C., ON OR BEFORE DECEMBER 17, 1979.
 
    EXCEPTIONS SHOULD BE ADDRESSED TO THE FEDERAL LABOR RELATIONS
 AUTHORITY, 1900 E STREET, N.W., ROOM 7469, WASHINGTON, D.C.  20424.
 
                              JOHN H. FENTON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 30, 1979
 
    WASHINGTON, D.C.
 
    PETER BROIDA, ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C.  20005
 
                            FOR THE RESPONDENT
 
    JOHN C. LEGGETTE
 
    206 TODD CIRCLE
 
    WARNER ROBINS, GEORGIA
 
    JAMES GIBBS
 
    POST OFFICE BOX 601
 
    ROCHELLE, GEORGIA
 
                            FOR THE COMPLAINANT
 
    BEFORE:  JOHN H. FENTON
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS CASE AROSE UNDER EXECUTIVE ORDER 11491, UPON AN UNFAIR LABOR
 PRACTICE COMPLAINT WHICH ALLEGED THAT LOCAL 987 FAILED OR REFUSED TO
 ELEVATE COMPLAINANT'S GRIEVANCE TO SEPT 5 OF THE NEGOTIATED GRIEVANCE
 PROCEDURE, AND FAILED TO TIMELY ADVISE HER OF ITS DECISION NOT TO DO SO,
 BECAUSE SHE HAD SUPPORTED CANDIDATES OPPOSED TO THE INCUMBENT PRESIDENT.
 
                             FINDINGS OF FACT
 
    LOCAL 987 IS THE EXCLUSIVE REPRESENTATIVE OF APPROXIMATELY 12,800
 EMPLOYEES AT WARNER ROBINS AIR LOGISTICS CENTER, WARNER ROBINS, GEORGIA.
  EDWARD MADDOX HAS BEEN ITS PRESIDENT FOR OVER SIX YEARS.  COMPLAINANT
 HAS BEEN ACTIVE IN UNION AFFAIRS AS A SHOP STEWARD OR DIVISION STEWARD,
 AND AS RECORDING SECRETARY, SINCE 1973.  IN THE ELECTIONS HELD IN
 OCTOBER, 1977, SHE SUPPORTED JAMES GIBBS FOR LOCAL PRESIDENT.  IN THE
 NOVEMBER RUN-OFF BETWEEN MADDOX AND BROOKS, SHE SUPPORTED BROOKS.
 
    ACCORDING TO COMPLAINANT AND MR. GIBBS, THE ONLY WITNESSES, ARTICLE 9
 OF THE COLLECTIVE BARGAINING AGREEMENT WAS INTENDED TO PERMIT AN
 EMPLOYEE TO GET A CHANGE IN REST DAYS AS A MATTER OF PERSONAL
 CONVENIENCE.  COMPLAINANT TESTIFIED THAT SUCH ADJUSTMENTS WERE MADE AS A
 MATTER OR PRACTICE OR POLICY, AND PROVED THAT DIVISION CHIEF JULIAN
 FUSSELL HAD, IN DECEMBER 1977, APPROVED HER REQUEST TO EXCHANGE A
 SATURDAY REST DAY FOR A MONDAY "IN ACCORDANCE WITH SECTION F, ARTICLE 9,
 SUPPLEMENT 1".  COMPLAINANT WORKED FROM MONDAY THROUGH FRIDAY.  IT
 BECAME NECESSARY FOR HER TO ATTEND A STATE COURT PROCEEDING ON FRIDAY,
 MAY 19, 1978.  SHE THEREFORE DECIDED DECIDED TO REQUEST AN EXCHANGE OF
 THE FOLLOWING SATURDAY FOR THAT WORKDAY.  NOTWITHSTANDING HER CLEAR
 CONVICTION THAT BOTH THE CONTRACT AND THE ACTIVITY'S PAST PRACTICE WOULD
 SUPPORT SUCH A REQUEST, SHE TESTIFIED THAT SHE FIRST SOLICITED THE
 OPINION OF MR. LARRY FRANKS, A CONSULTANT TO LOCAL 987, THAT SHE DID SO
 WITHOUT DISCLOSING THE NAME OF THE POTENTIAL GRIEVANT, AND THAT HE
 EXPRESSED THE VIEW THAT THE CONTRACT WOULD SUPPORT A GRIEVANCE SHOULD
 SUCH A REQUEST BE DENIED.
 
    ON MAY 9 SHE REQUESTED THE CHANGE, CITING SECTION I, ARTICLE 9 OF THE
 COLLECTIVE BARGAINING AGREEMENT.  ON THE SAME DAY HER SUPERVISOR DENIED
 THE REQUEST, CITING SECTION E OF THE SAME ARTICLE.  /2/ ON MAY 15
 COMPLAINANT GRIEVED AT THE SECOND, OR BRANCH LEVEL, AND APPOINTED
 RALEIGH J. GIBBS AS HER UNION REPRESENTATIVE.  ON MAY 16 HER BRANCH
 CHIEF DENIED HER REQUEST ON THE GROUND THAT SECTION I OF ARTICLE 9 WAS
 INTENDED TO AFFORD EMPLOYEES AN OPPORTUNITY TO REQUEST SPLIT REST DAYS
 AT THE TIME SHIFTS AND TOURS OF DUTY ARE POSTED, BUT NOT TO PERMIT
 EMPLOYEES TO CHANGE REST DAYS IN LIEU OF USING ANNUAL LEAVE FOR MATTERS
 OF PERSONAL CONVENIENCE.  COMPLAINANT WAS THEN REQUIRED TO USE LWOP ON
 FRIDAY, MAY 19, AND SHE OR HER REPRESENTATIVE ELEVATED THE GRIEVANCE TO
 THE THIRD, OR DIVISION, STEP. ON JUNE 1 HER DIVISION CHIEF REJECTED THE
 GRIEVANCE ON THE GROUND THAT NONE OF THE EMPLOYEES REGULARLY ASSIGNED TO
 WORK ON SATURDAY, MAY 20, WAS SCHEDULED TO BE ON LEAVE AND THAT HER
 PRESENCE OF THAT DAY WOULD HAVE RESULTED IN AN EXCESS OF PERSONNEL ON
 DUTY.
 
    ON JUNE 2 THE GRIEVANCE WAS ELEVATED TO THE FOURTH, OR DIRECTORATE
 LEVEL.  COMPLAINANT AND HER NEW UNION REPRESENTATIVE, MR. DONALD
 RANDALL, MET WITH MR. GERALD TOMPKINS, DEPUTY DIRECTORATE CHIEF.
 ACCORDING TO COMPLAINANT, MR. TOMPKINS AGREED THAT SHE WAS ENTITLED TO
 THE REQUESTED EXCHANGE OF REST DAYS, AND STATED THAT HE WOULD ARRANGE
 FOR HIS LABOR RELATIONS OFFICER TO MEET WITH MR. RANDALL, RESOLVE THE
 GRIEVANCE AND FORWARD HER A COPY OF THE RESOLUTION.  ON JUNE 23
 COMPLAINANT RECEIVED AN UNSIGNED COPY OF A LETTER FROM TOMPKINS TO
 RANDALL, WHICH SHE DESCRIBED AS FIRST INDICATING THAT THE GRIEVANCE WAS
 MERITORIOUS AND THEN DENYING THE REQUESTED RELIEF-- AN ACKNOWLEDGEMENT
 THAT THE POLICY WAS TO PERMIT SUCH AN EXCHANGE OF REST DAYS AND
 COMPENSATION FOR EIGHT HOURS LWOP.  /3/ COMPLAINANT BECAME SUSPICIOUS
 BECAUSE THIS DISPOSITION WAS A TOTAL REVERSAL OF HER UNDERSTANDING OF
 THE ORAL RESOLUTION MADE BY TOMPKINS AND BECAUSE THE LETTER WAS
 ADDRESSED TO RANDALL RATHER THAN TO HER.  UNTIL THAT POINT, ALL SUCH
 CORRESPONDENCE HAD BEEN ADDRESSED TO HER, WITH A COPY TO HER UNION
 REPRESENTATIVE.  SHE WAS ALSO, APPARENTLY, SUSPICIOUS OF THE FACT THAT
 SHE NEVER RECEIVED A COPY OF THE LETTER ELEVATING THE FACT THAT SHE
 NEVER RECEIVED A COPY OF THE LETTER ELEVATING THE GRIEVANCE TO THE
 FOURTH STEP.  IN THE ABSENCE OF DIVISION STEWARD RANDALL, SHE CALLED
 EXECUTIVE VICE-PRESIDENT JERRE HARVARD, TOLD HIM THAT SHE WISHED TO
 PURSUE THE GRIEVANCE TO THE COMMAND LEVEL, AND THAT SHE WISHED TO PURSUE
 THE GRIEVANCE TO THE COMMAND LEVEL, AND INFORMED HIM THAT THE COPY OF
 THE TOMPKINS LETTER WAS NOT OFFICIAL BECAUSE IT WAS UNSIGNED.  HARVARD
 REPLIED THAT HE WOULD CONTACT RANDALL AND THEY WOULD LOOK INTO THE
 MATTER AND TAKE THE NECESSARY ACTION.  AT SOME POINT IN TIME THERE WAS A
 CONVERSATION WITH RANDALL IN WHICH HE PROMISED TO SECURE A SIGNED COPY
 OF THE TOMPKINS LETTER AND WAS MADE AWARE OF COMPLAINANT'S DESIRE TO
 ELEVATE THE GRIEVANCE.  /4/
 
    THE CONTRACT PROVIDED 10 WORKING DAYS IN WHICH TO ELEVATE THE
 GRIEVANCE.  IF THE UNSIGNED LETTER ADDRESSED TO HER REPRESENTATIVE
 RATHER THAN HER WAS SUFFICIENT TO TRIGGER THE RUNNING OF THAT TIME, AND
 IF WEEKENDS AND JULY 4 ARE EXCLUDED, HER TIME EXPIRED ON JULY 10.
 BETWEEN JUNE 23 AND JULY 10, COMPLAINANT INQUIRED ABOUT THE STATUS OF
 HER GRIEVANCE ON AT LEAST SEVERAL OCCASIONS.  SHE WAS TOLD IT WAS UNDER
 CONSIDERATION.  ON JULY 11, OR 12 SHE RECEIVED A LETTER ADDRESSED TO
 RANDALL AND HER, FROM FRANKS, DATED JULY 10.  IN ESSENCE HE CONCLUDED
 THAT NO PROVISION OF ARTICLE 9 REQUIRES MANAGEMENT TO CHANGE AN
 EMPLOYEE'S REST DAY WHEN IT IS FOR THE EMPLOYEE'S PERSONAL BENEFIT, AND
 THAT THERE WAS NO BASIS FOR PURSUING THE GRIEVANCE UNLESS THERE WAS A
 REGULAR AND EXTENDED PRACTICE TO THE CONTRARY.  COMPLAINANT, WHO
 CALCULATED THE 10-DAY PERIOD AS EXPIRING ON JULY 7, TOOK NO FURTHER
 STEPS.  SHE HAD THE RIGHT, AS AN INDIVIDUAL, TO INVOKE THE FIFTH STEP,
 BUT DID NOT ADVANCE TO MANAGEMENT THE ARGUMENT THAT HER GRIEVANCE WAS
 NOT "OFFICIALLY" RESOLVED AT THE FOURTH STEP UNTIL SHE RECEIVED A SIGNED
 COPY OF TOMPKIN'S LETTER.  THUS THE ACTIVITY HAD NO OCCASION TO REJECT
 AS UNTIMELY AN EFFORT TO SECURE RESOLUTION OF THE GRIEVANCE BY THE BASE
 COMMANDER.
 
    COMPLAINANT PRESENTED NO EVIDENCE OF UNION ANIMOSITY AGAINST
 SUPPORTERS OF POLITICAL RIVALS OF THE CURRENT REGIME.  RATHER SHE ARGUES
 THAT THE EVENTS DESCRIBED HAVE NO SATISFACTORY EXPLANATION EXCEPT THAT
 PRESIDENT MADDOX MUST HAVE INSTRUCTED FRANKS DELIBERATELY TO MISCONSTRUE
 THE CONTRACT AND, PRESUMABLY, TO ALLOW THE APPEAL TIME TO ELAPSE.  YET
 HER REPRESENTATIVE, A POLITICAL OPPONENT OF MADDOX, GAVE TESTIMONY WHICH
 RATHER CLEARLY UNDERMINES ANY SUCH ASSUMPTION. WITH RESPECT TO THE
 MERITS OF THE GRIEVANCE, COMPLAINANT ADMITTED THAT HER REQUEST FOR THE
 CHANGE IN REST DAYS WAS THE FIRST ONE SHE HAD MADE SINCE HER BRANCH
 CHIEF DISTRIBUTED TO SUPERVISORS A MEMO STATING THAT NO MORE EXCHANGES
 GRANTED TO EMPLOYEES AND SHE FURTHER ADMITTED THAT, ON THE BASIS OF
 CONVERSATIONS WITH VARIOUS SUPERVISORS, THIS MAY HAVE BEEN THE REASON
 HER REQUEST WAS TURNED DOWN.  IN SHORT, COMPLAINANT'S CASE IS BASED ON
 SPECULATION AND SURMISE.  THERE IS NO HARD EVIDENCE THAT ANY OFFICIAL OF
 LOCAL 987 DELIBERATELY MISHANDLED HER GRIEVANCE BECAUSE SHE OPPOSED THE
 CANDIDACY OF ITS CURRENT PRESIDENT.  IN RESPONSE TO A MOTION TO DISMISS,
 I INDICATED THAT I WOULD DISMISS ON THE GROUND THAT COMPLAINANT HAD COME
 FORWARD WITH NOTHING MORE THAN SUSPICIOUS AND CONJECTURE, HAD
 ESTABLISHED NOTHING MORE THAN AN INNOCENT MISTAKE, AND THAT AN INNOCENT
 MISTAKE DOES NOT CONSTITUTE A VIOLATION OF THE DUTY OF FAIR
 REPRESENTATION.  RESPONDENT CHOSE TO CALL TO WITNESSES, ALTHOUGH INVITED
 TO DO SO.
 
                      CONCLUSIONS AND RECOMMENDATION
 
    A UNION MUST REPRESENT EMPLOYEES IN A BARGAINING UNIT "WITHOUT
 DISCRIMINATION, FAIRLY, IMPARTIALLY, AND IN GOOD FAITH", /5/ AND WITH
 "HONESTY OF PURPOSE".  /6/ THAT OBLIGATION IS VIOLATED WHERE THERE IS
 "SUBSTANTIAL EVIDENCE OF FRAUD, DECEITFUL ACTION OR DISHONEST CONDUCT",
 /7/ OR WHERE A UNION IS SHOWN TO HAVE "ARBITRARILY IGNORED A MERITORIOUS
 GRIEVANCE OR PROCESSED IT IN A PERFUNCTORY MANNER".  /8/
 
    AS NOTED BY THE FORMER GENERAL COUNSEL OF THE NATIONAL LABOR
 RELATIONS BOARD, /9/ COURTS AND THE BOARD HAVE ELABORATED ON THIS THEME,
 AND PARTICULARLY THE ELASTIC CONCEPT OF "UNFAIRNESS", TO THE POINT WHERE
 SOME COURTS HAVE VIRTUALLY IMPOSED UPON UNIONS THE OBLIGATIONS THAT
 ATTEND THE ATTORNEY-CLIENT RELATIONSHIP.  I TOTALLY SUBSCRIBE TO HIS
 VIEW THAT THE DUTY MUST BE MORE NARROWLY DEFINED, AND THAT NO BREACH
 SHOULD BE PREDICATED MERELY UPON PROOF THAT A UNION WAS "INEPT,
 NEGLIGENT, UNWISE, INSENSITIVE OR INEFFECTUAL".  RATHER, SUCH BREACHES
 SHOULD BE FOUND ONLY WHERE THE UNION'S CONDUCT WAS IMPROPERLY MOTIVATED
 BY SECTION 1(A) CONSIDERATIONS OR BY IRRELEVANT OR INVIDIOUS
 CONSIDERATIONS SUCH AS SEX, RACE OR PERSONAL ANIMOSITY, OR WHERE IT WAS
 WHOLLY ARBITRARY OR GROSSLY NEGLIGENT.  A BROADER, MORE COMPREHENSIVE
 RULE PERMITTING THE AUTHORITY AND THE COURTS CONTINUALLY TO SECOND-GUESS
 A UNION'S EXERCISE OF ITS DISCRETION OR TO REVIEW AND REMEDY ITS
 ADMITTED MISTAKES IN THE HANDLING OF GRIEVANCES WOULD, I THINK, BE
 DESTRUCTIVE OF GOOD BARGAINING RELATIONSHIP, OF RESPONSIBLE
 REPRESENTATION AND EVEN, SOMETIMES, OF THE ORGANIZATION ITSELF.  IN IBEW
 V. FOUST, 99 U.S. 2121, 101 LRRM 2365(1979), THE SUPREME COURT, IN
 BARRING PUNITIVE DAMAGES IN A FAIR REPRESENTATION SUIT, REPEATEDLY
 INDICATED THE NEED TO PROTECT THE UNION'S FINANCIAL RESOURCES AND
 THEREBY ITS EFFECTIVENESS.  THIS FACTOR ACQUIRES EVEN GREATER WEIGHT IN
 THE FEDERAL SECTOR WHERE LABOR ORGANIZATIONS CANNOT COMPEL THE PAYMENT
 OF DUES OR SERVICE FEES AND WHERE THEY OFTEN REPRESENT UNITS WHICH DWARF
 THEIR DUES-PAYING MEMBERSHIP.
 
    HERE, THE EVIDENCE ESTABLISHES AT MOST AN INNOCENT MISTAKE WHICH MAY
 HAVE TERMINATED A MERITORIOUS GRIEVANCE.  VIEWED MOST FAVORABLY TO
 COMPLAINANT, THE FACTS ARE NOT UNLIKE THOSE OF FOUST, EXCEPT THAT THERE
 THE CONSEQUENCE WAS LOSS OF A JOB AS OPPOSED TO A DAY'S PAY HERE.  AS
 NOTED, IT ISN'T EVEN CLEAR THAT THE ACTIVITY WOULD HAVE REJECTED THE
 GRIEVANCE AS TIME-BARRED AT THE FIFTH STEP, HAD COMPLAINANT PRESENTED
 IT.  IT IS DIFFICULT TO CONCLUDE THAT SHE HAS BEEN HARMED WHERE SHE HAS
 FAILED TO MAKE THE EFFORT TO AVOID THAT HARM. ON THAT GROUND ALONE, I
 WOULD RECOMMEND THAT THE COMPLAINT BE DISMISSED.  HOWEVER, EVEN ASSUMING
 THAT THE UNION'S CONDUCT PRECLUDED CONSIDERATION OF THE GRIEVANCE AT THE
 FIFTH STEP, I WOULD FIND NO BREACH OF THE DUTY TO FAIRLY REPRESENT.
 THERE IS NO EVIDENCE THAT THE MISTAKE WAS OTHER THAN INNOCENT, AND UNTIL
 THAT POINT COMPLAINANT HAD RECEIVED REPRESENTATION AT THREE STEPS AND
 CONSIDERATION BY A SALARIED CONSULTANT.  THE WEIGHT OF AUTHORITY HOLDS
 THAT MERELY NEGLIGENCE WILL NOT SUPPORT A FINDING THAT THE DUTY HAS BEEN
 BREACHED.  /10/ WHILE I MIGHT FIND A SIMILAR OVERSIGHT TO CONSTITUTE
 GROSS AND THEREFORE ACTIONABLE NEGLIGENCE IF IT HAD VERY SERIOUS CAREER
 CONSEQUENCES, I CANNOT CONCLUDE THAT THIS MISTAKE, INVOLVING AS IT DID A
 RELATIVELY MINOR MATTER, VIOLATED THE DUTY TO FAIRLY REPRESENT.
 
                             RECOMMENDED ORDER
 
    HAVING CONCLUDED THAT NO VIOLATION OF SECTION 19(B)(1) OF EXECUTIVE
 ORDER OCCURRED, IT IS RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
 
                              JOHN H. FENTON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 30, 1979
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    RECOMMENDED DECISION AND ORDER ISSUED BY ADMINISTRATIVE LAW JUDGE
 JOHN H. FENTON WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                                LINDA ENOCH
 
    PETER BROIDA, ESQUIRE
 
    ASSISTANT GENERAL COUNSEL
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C. 20005
 
    JOHN C. LEGGETTE
 
    206 TODD CIRCLE
 
    WARNER ROBINS, GA
 
    JAMES GIBBS
 
    POST OFFICE BOX 601
 
    ROCHELLE, GA
 
    REGULAR MAIL:
 
    MR. KENNETH T. BLAYLOCK, PRESIDENT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C.  20005
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 "E" STREET, N.W., ROOM 7469
 
    WASHINGTON, D.C.  20424
 
    ONE COPY TO EACH REGIONAL DIRECTOR
 
    OFFICE OF THE GENERAL COUNSEL
 
    1900 "E" STREET, N.W., ROOM 7469
 
    WASHINGTON, D.C.  20424
 
    IN THE CASE OF
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL 987, AFL-CIO
 
                                RESPONDENT
 
    AND
 
    NEDRA T. BRADLEY
 
                                COMPLAINANT
 
                           CASE NO. 40-9386(CO)
 
                            POST HEARING BRIEF
 
                            ON BEHALF OF MRS.
 
                             NEDRA T. BRADLEY
 
    JUDGE, WE FEEL THAT YOU MUST RULE IN FAVOR OF MRS. BRADLEY BECAUSE
 THE ONLY EVIDENCE YOU HAVE TO RELY ON IS THE FACTS THAT WERE BROUGHT OUT
 THROUGH TESTIMONY EITHER BY ONE OR BOTH MRS. BRADLEY OR MR. GIBBS.
 FOLLOWING IS A SUMMARY OF THIS EVIDENCE, A REFERENCE AS TO PAGES AND
 TESTIMONY PROVIDED AND A PRESIDENT CASE OR FAIR REPRESENTATION YOUR
 MENTIONED IN THE HEARING.
 
                            SUMMARY OF EVIDENCE
 
    YOU HAVE TESTIMONY FROM TWO WITNESSES THAT PROVIDES THAT MR.  FRANKS'
 INTERPRETATION OF THE LABOR AGREEMENT WAS THAT MANAGEMENT HAD TO ALLOW
 AN EMPLOYEE TO SWAP REST DAYS IF THEY REQUESTED AND IF THEY DID NOT
 PERMIT THE SWAP THE EMPLOYEE COULD GRIEVE.  OR YOU HAVE EVIDENCE OF THE
 PAST AND PRESENT POLICY OF THE DIRECTORATE OF DISTRIBUTION WHICH WAS
 THAT MANAGEMENT DID ALLOW THEIR EMPLOYEES TO EXCHANGE REST DAYS IF
 REQUESTED.  YOU HAVE EVIDENCE THAT JAMES GIBBS DID HELP NEGOTIATE THIS
 LABOR AGREEMENT AND HAS NOTES TO SUPPORT HIS INTERPRETATION OF ARTICLE
 9, SECTION I WHICH IS THAT IT WOULD PERMIT AN EMPLOYEE TO REQUEST A
 EXCHANGE OF A REST DAY AND IF NOT GRANTED, THEY COULD GRIEVE.  YOU HAVE
 EVIDENCE THAT THE FOURTH STEP (DIRECTORATE) WAS NOT SATISFACTORY TO MR.
 BRADLEY AND THAT SHE REQUESTED TO BOTH MR. HARVARD, EXECUTIVE
 VICE-PRESIDENT AND MR. DONALD RANDALL VICE-PRESIDENT FOR DISTRIBUTION
 THAT THE GRIEVANCE BE ELEVATED TO THE FIFTH STEP (COMMAND) LEVEL.  YOU
 ALSO HAVE EVIDENCE OF WHAT THE POLICY WITHIN THE UNION IS ONE EVALUATING
 GRIEVANCES WHICH IS, THE LAST REPRESENTATIVE HANDLES THE EVALUATION.
 YOU HAVE EVIDENCE THAT THE TIME LIMITS TO EVALUATE MRS. BRADLEY'S
 GRIEVANCE HAD EXPIRED PRIOR TO RECEIVING ANY WORD FROM THE UNION AND
 THAT SHE REPEATEDLY QUESTIONED THE STATUS OF IT.  YOU HAVE EVIDENCE THAT
 TELLS YOU THAT MR. FRANKS KNEW ABOUT THE TIME LIMITS IN THE LABOR
 AGREEMENT AND THAT HE KNEW MRS.  BRADLEY'S TIME LIMITS BECAUSE HE HAD
 HER GRIEVANCE FILE AND WAS STUDYING IT. MR. FRANKS KNOEW JAMES GIBBS HAD
 HELPED TO NEGOTIATE THE AGREEMENT AND HE ALSO KNEW WHAT HIS
 INTERPRETATION WAS ON THIS PARTICULAR ARTICLE AND SECTION YET HE
 INDICATED THAT HIS MEMO THERE WAS NO GRIEVANCE AND DID NOT ASK FOR
 ADVICE FROM MR. GIBBS, WHICH HE HAD SEVERAL TIMES IN THE PAST. ON
 OCCASION MR. FRANKS HAD RELIED ON MR. JAMES GIBBS AS A WITNESS.  SINCE
 MR. FRANKS KNEW ABOUT TIME LIMITS AND PARTICULARLY MRS. BRADLEYS' AND
 SHE CONSTANTLY QUESTIONED THE STATUS OF HER GRIEVANCE AND WAS NEVER
 INFORMED THAT IT HAD NO MERIT MR. FRANKS DELIBERATELY HELD THE GRIEVANCE
 FILE UNTIL THE TIME LIMITS EXPIRED.  YOU HAVE EVIDENCE THAT MRS. BRADLEY
 FELT THAT HER GRIEVANCE WAS NOT PROCESSED FOR POLITICAL REASONS DUE TO
 HER NEVER HAVING ANY PROBLEMS WITH GRIEVANCES PRIOR TO THIS CURRENT
 ADMINISTRATION AND THAT IT WAS PUBLIC KNOWLEDGE THAT SHE DID NOT SUPPORT
 MR. EDWARD C. MADDOX FOR PRESIDENT.
 
                             NEDRA T. BRADLEY
 
    1.  ON PAGES 35 AND 36 MRS. BRADLEY'S TESTIMONY ESTABLISHED THAT MR.
 FRANKS INTERPRETATION OF THE LABOR AGREEMENT IN REGARDS TO SWAPPING REST
 DAYS WAS THE SAME AS HERE.
 
    2.  ON PAGE 18 LINES 16 THROUGH 24 MRS. BRADLEY'S TESTIMONY PROVIDED
 THAT THE DIRECTORATE OF DISTRIBUTION'S POLICY WAS TO PERMIT SWAPS OF
 REST DAYS.
 
    3.  ON PAGES 21 THROUGH 26 MRS. BRADLEY'S TESTIMONY ESTABLISHED THAT
 SHE CONTACTED MR. JERRE HARVARD, EXECUTIVE VICE-PRESIDENT AND MR. DONALD
 RANDALL, VICE-PRESIDENT FOR DISTRIBUTION REQUESTING THAT HER GRIEVANCE
 BE ELEVATED TO THE NEXT LEVEL, WHICH WAS COMMAND LEVEL.
 
    4.  ON PAGE 27 MRS. BRADLEY'S TESTIMONY ESTABLISHED THAT SHE WAS
 NEVER GIVEN HER GRIEVANCE FILE.
 
    5.  ON PAGES 28 THROUGH 32 MRS. BRADLEY'S TESTIMONY ESTABLISHED THAT
 SHE ATTEMPTED SEVERAL TIMES TO FIND OUT THE PROGRESS OF HER GRIEVANCE BY
 PERSONAL CONTACT WITH MR.  FRANKS AND MR. JERRE HARVARD, EXECUTIVE
 VICE-PRESIDENT AND WAS ALWAYS INFORMED IT WAS UNDER STUDY OR REVIEW
 UNTIL SHE RECEIVED A LETTER OR MEMO IN THE MAIL FROM MR. FRANKS STATING
 HIS POSITION ON THE CASE BUT AFTER THE TIME LIMITS HAD EXPIRED WHICH WAS
 THEN TOO LATE FOR HER TO ELEVATE THE GRIEVANCE HERSELF.
 
    6.  ON PAGES 36 THROUGH 38 MRS. BRADLEY'S TESTIMONY ESTABLISHED THAT
 IN ALL HER ATTEMPTS TO FIND OUT THE STATUS OF HER GRIEVANCE FROM MR.
 FRANKS, SHE WAS NOT TOLD THAT THE GRIEVANCE DID NOT HAVE ANY MERIT UNTIL
 SHE RECEIVED THE LETTER OR MEMO FROM MR. FRANKS.  THIS INDICATES THAT HE
 DID NOT CHANGE HIS MIND ABOUT HIS INTERPRETATION UNTIL THE LAST MINUTE
 AND POSSIBLY BY SOMEONE'S ELSE TELLING HIM TO.
 
    7.  ON PAGE 39 LINES 7 THROUGH 14 MRS. BRADLEY'S TESTIMONY
 ESTABLISHED THAT SHE FELT THAT THE UNION DID NOT ELEVATE HER GRIEVANCE
 BECAUSE OF POLITICAL REASONS DUE TO THE FACT THAT SHE HAD NEVER HAD ANY
 PROBLEMS IN GETTING A GRIEVANCE ELEVATED BEFORE THIS CURRENT
 ADMINISTRATION.
 
    8.  ON PAGES 40, 42, AND 43 MRS. BRADLEY'S TESTIMONY ESTABLISHED THE
 FACT THAT SHE SUPPORTED JAMES GIBBS FOR PRESIDENT AGAINST MR. EDWARD
 MADDOX IN THE PRIMARY ELECTION AND MR. JOHN BROOKS IN THE RUN OFF AND
 THAT THIS WAS PUBLIC KNOWLEDGE TO EVERYONE.
 
                              JAMES L. GIBBS
 
    1.  ON PAGES 187 LINE 10 THROUGH 191 IT ESTABLISHED JAMES GIBBS
 INVOLVEMENT IN THE NEGOTIATION OF THE LABOR AGREEMENT AND HIS
 QUALIFICATIONS TO BE ABLE TO INTERPRET IT.
 
    2.  ON PAGES 193 LINE 20 THROUGH 194 LINE 9 IT ESTABLISHED THE FACT
 THAT JAMES GIBBS ADVISED MRS. BRADLEY AND THE TIME ADVICE WAS GIVEN.
 
    3.  ON PAGE 194 LINE 10 THROUGH 24 IT ESTABLISHED THE INTERPRETATION
 OF THE LABOR AGREEMENT AND ALSO THE PAST AND PRESENT POLICY OF
 PERMITTING EMPLOYEES TO EXCHANGE THEIR REST DAYS.
 
    4.  ON PAGE 195 LINES 4 THROUGH 7 IT ESTABLISHED THAT MR. FRANKS DID
 NOT SEEK JAMES GIBBS' INTERPRETATION.
 
    5.  ON PAGE 199 LINES 6 THROUGH 14 AND 201 LINES 2 THROUGH 10 IT
 ESTABLISHED JAMES GIBBS EXPERIENCE AS CHIEF EXECUTIVE OF LOCAL 987 AND
 THAT MR. FRANKS DID COME TO HIM AND SEEK ASSISTANCE ON THE LABOR
 AGREEMENT OR CONTRACT.
 
    6.  ON PAGES 202 LINES 18 THROUGH 25 AND 203 LINES 1 THROUGH 10 IT
 ESTABLISHED THAT THE SUBJECT OF THE GRIEVANCE AND THE INTERPRETATION OF
 THE LABOR AGREEMENT WAS DISCUSSED WITH MR. FRANKS AND ALL WAS IN
 AGREEMENT WITH THE INTERPRETATION THAT AN EMPLOYEE CAN SWITCH REST DAYS
 AND THAT THIS DISCUSSION HAPPENED BEFORE THE FILING OF THE GRIEVANCE.
 
    7.  ON PAGES 20 LINES 3 THROUGH 7 AND 204 LINE 10 IT ESTABLISHED THAT
 JAMES GIBBS WAS VERY SURPRISED TO FIND OUT MR. FRANKS HAD REVERSED HIS
 POSITION FROM WHAT IT HAD BEEN EARLIER.
 
    8.  ON PAGE 206 LINES 6 THOUGH 12 IT ESTABLISHED THAT THE TIME LIMITS
 HAD EXPIRED ON MR. BRADLEYS' GRIEVANCE DUE TO THE TIME LIMITS TO
 EVALUATE WAS GONE.
 
    9.  ON PAGE 208 LINES 2 THROUGH 25 IT ESTABLISHED THAT MR. FRANKS
 KNEW ABOUT THE TIME LIMITS TO EVALUATE A GRIEVANCE FROM THE CONTRACT AND
 THAT HE SHOULD HAVE KNOWN THE TIME LIMITS OF THIS GRIEVANCE SINCE HE HAD
 THE FILE.  ALSO IT ESTABLISHED THAT MRS.  BRADLEY DID ASK SEVERAL TIMES
 ABOUT THE STATUS OF HER GRIEVANCE AND THAT HER RESPONSE FROM MR. FRANKS
 WAS ALWAYS THAT IT IS UNDER CONSIDERATION.
 
    10.  ON PAGE 210 LINES 1 THROUGH 25 IT ESTABLISHED THAT THE PAST
 POLICY OF THE UNION IN EVALUATING A GRIEVANCE WAS THE REPRESENTATIVES
 RESPONSIBILITY AND NEVER THE GRIEVANTS'.
 
    11.  ON PAGE 211 LINES 12 THROUGH 21 IT ESTABLISHED THAT ONLY THE
 VICE-PRESIDENT IN THE ABSENCE OF THE PRESIDENT OR THE GRIEVANT HAD
 AUTHORITY TO EVALUATE A GRIEVANCE TO THE FIFTH (COMMAND) STEP.
 
    12.  ON PAGE 228 LINES 1 THROUGH 25 IT ESTABLISHED THAT JAMES GIBBS
 DID HELP NEGOTIATE THE LABOR AGREEMENT AND DID HAVE NOTES ON THE
 INTERPRETATION OF ITS' CONTENTS AND ESPECIALLY ARTICLE 9.
 
    13.  ON PAGES 230 THROUGH 231 LINE 12 ESTABLISHED THAT HIGHER
 MANAGEMENT MANY TIMES TRIES TO JUSTIFY WHAT IS DONE BY LOWER MANAGEMENT
 IN A GRIEVANCE.
 
    14.  ON PAGE 234 LINES 2 THROUGH 4 IT ESTABLISHED THAT JAMES GIBBS
 HAD BEEN RELIED UPON TO INTERPRET THE LABOR AGREEMENT TO THE POINT OF
 TESTIFYING IN HEARING FROM MR. FRANKS.
 
    14.  ON PAGE 245 LIN3 13 THROUGH PAGE 247 LINE 17 IT ESTABLISHED THAT
 THE FIRST REPLY FROM DIRECTORATE HAD TO BE THE ONE THAT STARTED YOUR
 TIME LIMITS TO EVALUATE SINCE THE LABOR AGREEMENT ONLY ALLOWS SO MUCH
 TIME.
 
    15.  ON PAGES 252 LINES 7 THROUGH 16 AND 253 LINES 11 THROUGH 16 IT
 ESTABLISHED WHAT SHOULD BE DONE TO CORRECT THIS PROBLEM AND WHAT JAMES
 GIBBS WOULD HAVE DONE TO SETTLE IT WHICH IF IT WAS WE CERTAINLY WOULDN'T
 BE HERE TODAY IN THIS HEARING.
 
                      RESPONDENT'S POST-HEARING BRIEF
 
    PETER B. BROIDA
 
    ASSISTANT GENERAL COUNSEL
 
    OFFICE OF THE GENERAL COUNSEL
 
    AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, NW
 
    WASHINGTON, DC 20005
 
    (202) 737-8700
 
    ATTORNEY FOR RESPONDENT
 
                             I.  INTRODUCTION
 
    THIS IS A FAIR REPRESENTATION UNFAIR LABOR PRACTICE CASE BROUGHT BY
 COMPLAINANT, NEDRA T. BRADLEY, AGAINST LOCAL 987, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, UNDER SECTION 19(B)(1) OF EXECUTIVE ORDER 11491,
 INITIATED BY A COMPLAINT FILED ON OCTOBER 12, 1978.  THE MATTER WAS
 HEARD BY ADMINISTRATIVE LAW JUDGE JOHN H. FENTON ON MAY 23, 1979, AT THE
 U.S. COURTROOM, WARNER ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA.
 AT THE CONCLUSION OF THE HEARING, THE PARTIES WERE AFFORDED AN
 OPPORTUNITY TO SUBMIT BRIEFS.  THE FOLLOWING CONSTITUTES RESPONDENT'S
 POST-HEARING SUBMISSION.
 
                              II.  THE FACTS
 
    COMPLAINANT, NEDRA BRADLEY, IS A WG-7 GENERAL EQUIPMENT EXAMINER
 EMPLOYED AT WARNER ROBINS AIR FORCE BASE, WARNER ROBINS, GEORGIA.  (NT
 48).  CIVILIAN EMPLOYEES AT THAT INSTALLATION ARE REPRESENTED BY THE
 RESPONDENT, AFGE LOCAL 987. THE EMPLOYER AND THE UNION HAVE A NEGOTIATED
 AGREEMENT CONTAINING A SIX STEP GRIEVANCE PROCEDURE.  THE FIRST STEP
 REQUIRES DISCUSSION BETWEEN THE EMPLOYEE AND THE SUPERVISOR;  STEP 2
 INVOLVES BRANCH-LEVEL DISCUSSIONS;  STEP 3 REQUIRES DISCUSSION AT THE
 DIVISION LEVEL;  STEP 4 INVOLVES CONSULTATION AT THE DIRECTORATE LEVEL;
 STEP 5 REQUIRES A HEARING AT THE COMMAND LEVEL;  THE FINAL STEP IS
 BINDING ARBITRATION.
 
    IN THE SPRING OF 1978, MS. BRADLEY, WHO WORKED A FIVE DAY WORK WEEK
 (MONDAY THROUGH FRIDAY), DESIRED TO EXCHANGE HER USUAL SATURDAY REST DAY
 FOR A FRIDAY, SO THAT SHE COULD MAKE AN APPEARANCE IN A STATE COURT.
 SHE REQUESTED HER SUPERVISOR TO SWITCH HER REST DAY, AND THAT REQUEST
 WAS DENIED.  (NT 81) MS. BRADLEY TOOK LEAVE WITHOUT PAY FOR THE FRIDAY
 ON WHICH SHE DESIRED TO APPEAR IN COURT.  (NT 82)
 
    DISSATISFIED WITH HER SUPERVISOR'S RESPONSE TO HER REQUEST FOR A
 CHANGE OF REST DAYS, BRADLEY FILED A GRIEVANCE UNDER ARTICLE IX(I) OF
 THE NEGOTIATED AGREEMENT, CONTROLLING LEAVE AND HOURS OF DUTY.  (NT 82)
 MANAGEMENT'S THIRD STEP RESPONSE WAS THAT HER REQUEST FOR A SWITCH OF
 REST DAYS WAS DENIED BECAUSE IF SHE HAD BEEN PLACED ON SATURDAY DUTY,
 TOO MANY PEOPLE WOULD HAVE BEEN SCHEDULED FOR WORK ON SATURDAY.  (NT 95)
 MS. BRADLEY WAS REPRESENTED AT THE THIRD STEP BY HER PRESENT
 REPRESENTATIVE, JAMES GIBBS.  (NT 98)
 
    SEEKING HIGHER LEVEL REVIEW OF HER GRIEVANCE, BRADLEY REQUESTED
 ANOTHER STEWARD OF LOCAL 987, MR. RANDALL, TO REPRESENT HER AT THE
 FOURTH STEP OF THE GRIEVANCE PROCEDURE, THE DIRECTORATE LEVEL.  (NT 98)
 SHE AND RANDALL MET WITH A DIRECTORATE REPRESENTATIVE, MR. TOMPKINS, WHO
 ISSUED A DECISION ON JUNE 23, 1978 DENYING HER GRIEVANCE.  (NT 98,
 114-15)
 
    THE DECISION BY MR. TOMPKINS THAT MS. BRADLEY RECEIVED WAS UNSIGNED.
 SHE COMPLAINED TO LOCAL 987 EXECUTIVE VICE PRESIDENT JERRE HARVARD THAT
 SHE DID NOT AGREE WITH THE DECISION OF TOMPKINS AND STATED THAT SHE FELT
 THAT THE DECISION WAS NOT PROPERLY ISSUED SINCE IT WAS UNSIGNED.
 HARVARD, IN TURN, SAID THAT HE WOULD CONTACT STEWARD RANDALL ABOUT THE
 MATTER.  RANDALL THEN TOLD MS. BRADLEY THAT HE WOULD GET A SIGNED
 DECISION FROM TOMPKINS.  (NT 22) MS.  BRADLEY RECEIVED A SIGNED RESPONSE
 FROM TOMPKINS ON JULY 13, 1978, IN THE SAME FORMAT AS THE DECISION THAT
 HE HAD ORIGINALLY ISSUED.  (NT 57, 61)
 
    BRADLEY HAD TEN WORKING DAYS, OR UNTIL JULY 10, 1978, IN WHICH TO
 ELEVATE HER GRIEVANCE FROM THE DIRECTORATE TO THE FIFTH STEP, OR
 COMMAND, LEVEL.  (NT 52-3, 79) AT SOME POINT BETWEEN JUNE 23 AND JULY
 10, SHE TOLD RANDALL THAT SHE DID NOT ACCEPT THE DENIAL OF THE GRIEVANCE
 BY TOMPKINS (NT 23) AND TOLD RANDALL THAT SHE WANTED HIM TO REVIEW THE
 CASE AND ELEVATE THE GRIEVANCE.  (NT 25, 123)
 
    AT SOME POINT AFTER BRADLEY FIRST LEARNED THAT TOMPKINS HAD ISSUED AN
 UNFAVORABLE DECISION, SHE WAS ADVISED BY RANDALL THAT HE WOULD TAKE THE
 GRIEVANCE PACKAGE AND REVIEW IT WITH PROFESSOR LARRY FRANKS, A
 LABOR-RELATIONS CONSULTANT TO LOCAL 987.  (NT 26) AFTER SHE SPOKE WITH
 RANDALL, SHE VISITED THE OFFICE OF LOCAL 987 SEVERAL TIMES.  ON EACH
 OCCASION WHEN SHE SAW FRANKS IN THE OFFICE, SHE INQUIRED AS TO THE
 PROGRESS OF THE CASE AND WAS TOLD HE WAS REVIEWING THE GRIEVANCE FILE.
 (NT 23, 30) ON JULY 11, 1978, MS. BRADLEY RECEIVED A LETTER DATED JULY
 10 FROM FRANKS, STATING THAT HER GRIEVANCE WOULD NOT BE PURSUED BY THE
 UNION SINCE IT LACKED MERIT. (NT 31, 37, 69) HER GRIEVANCE WAS NOT
 ELEVATED TO THE COMMAND LEVEL.  (NT 24-5)
 
    BRADLEY BELIEVES THE DECISION NOT TO PURSUE HER GRIEVANCE TO THE
 FIFTH STEP WAS MOTIVATED BY HOSTILITY BY THE LOCAL OR ITS OFFICIALS
 AGAINST HER.  SHE STATES THAT INITIALLY MR. FRANKS HAD ADVISED HER THAT
 THE GRIEVANCE HAD MERIT, AND LATER DETERMINED THAT THE CASE SHOULD NOT
 BE PURSUED.  SHE INFERS THAT HIS CHANGE OF MIND CONCERNING HER GRIEVANCE
 MUST HAVE BEEN MOTIVATED BY PERSONAL ANIMOSITY.  (NT 138-139) BRADLEY
 ADMITS, HOWEVER, THAT BETWEEN THE TIME SHE FIRST SPOKE WITH FRANKS AND
 THE TIME SHE RECEIVED HIS LETTER, HE TOLD HER HE DISCOVERED A PREVIOUSLY
 UNDISCLOSED LETTER OF AGREEMENT BETWEEN THE UNION AND AIR FORCE
 INDICATING THAT REST DAYS COULD NOT BE EXCHANGED IN THE MANNER SHE
 DESIRED.  (NT 157, 161-162, 169, 171, 173, 175)
 
    BRADLEY BELIEVES THAT FRANKS INTENTIONALLY MISCONSTRUED THE
 COLLECTIVE BARGAINING CONTRACT TO DENY HER FURTHER PROCESSING OF HER
 GRIEVANCE BECAUSE HE WAS AN EMPLOYEE OF LOCAL 987, THE PRESIDENT OF
 WHICH IS ED MADDOX, WHO WAS OPPOSED IN AN ELECTION DURING NOVEMBER, 1977
 BY JAMES GIBBS AND JOHN BROOKS, BOTH OF WHOM WERE SUPPORTED, AT VARIOUS
 TIMES, BY COMPLAINANT.  (NT 40, 42-43) THERE IS NO EVIDENCE OF HOSTILITY
 TOWARD MS. BRADLEY OTHER THAN HER SUPPOSITION RELATIVE TO HER OWN
 EFFORTS DURING THE NOVEMBER, 1977 ELECTION CAMPAIGN.  HER REPRESENTATIVE
 DURING THE UPL HEARING, MR.GIBBS, ONE OF THE INDIVIDUALS WHO SHE
 SUPPORTED DURING THE 1977 ELECTION, TESTIFIED THAT HE DID NOT FEEL THAT
 FRANKS WOULD HAVE INTENTIONALLY MISCONTRUED THE COLLECTIVE BARGAINING
 AGREEMENT AGAINST BRADLEY TO APPEASE MADDOX, EVEN ASSUMING THAT MADDOX
 HARBORED SOME TYPE OF POLITICAL ANIMOSITY TOWARD GIBBS, BRADLEY, OR
 BROOKS.  (NT 238-241)
 
    AN INFERENCE THAT BRADLEY APPEARS TO DRAW FROM THE EVIDENCE IS THAT
 THE UNION BREACHED ITS DUTY OF FAIR REPRESENTATION BY FAILING TO NOTIFY
 HER UNTIL JULY 10, 1978 OF ITS DECISION CONCERNING HER GRIEVANCE BEFORE
 THE TIME ELAPSED FOR PERFECTING AN APPEAL TO THE FIFTH STEP OF THE
 GRIEVANCE PROCEDURE.  HOWEVER, NEITHER MS. BRADLEY NOR HER
 REPRESENTATIVE, MR.  GIBBS, COULD TESTIFY WHETHER THE APPEAL PERIOD TO
 THE FIFTH STEP WAS INITIATED ON JUNE 23, 1978, WHEN MS. BRADLEY RECEIVED
 THE UNSIGNED "UNOFFICIAL" TOMPKINS LETTER (NT 114-15, 64, 66) OR ON JULY
 13, 1978 WHEN SHE RECEIVED THE "OFFICIAL" SIGNED LETTER FROM TOMPKINS.
 (NT 61, 248)
 
                             III.  DISCUSSION
 
                                  POINT I
 
                RESPONDENT DID NOT BREACH ITS DUTY OF FAIR
 
                 REPRESENTATION BY DECIDING NOT TO ELEVATE
 
                 COMPLAINANT'S GRIEVANCE TO THE FIFTH STEP
 
    VACA V. SIPES, 386 U.S. 171, 87 S.CT 903(1967), DEFINES THE
 OBLIGATIONS OF A UNION IN PROCESSING GRIEVANCES. THERE IS NO OBLIGATION
 ON THE PART OF A UNION TO PROCESS A GRIEVANCE THROUGH TO THE FINAL
 STAGE, USUALLY ARBITRATION.  UNIONS MUST BE FREE TO WEED OUT GRIEVANCES
 THAT LACK MERIT SO THAT THE ARBITRATION PROCEDURE IS NOT OVERBURDENED
 AND SO THAT THE TIME OF UNION AND MANAGEMENT OFFICIALS IS NOT CONSUMED
 OVER PROBLEMS THAT DO NOT MERIT THEIR ATTENTION.  TO SHOW THAT A UNION
 HAS ABUSED THE DISCRETION ALLOWED IT IN THE ADJUSTMENT OR ABANDONMENT OF
 GRIEVANCES, THE BURDEN IS UPON THE COMPLAINANT TO DEMONSTRATE THAT THE
 UNION ACTED IMPROPERLY, THAT IS, THAT THE UNION'S CONDUCT HAS BEEN
 ARBITRARY, IN BAD FAITH, OR THAT THE GRIEVANCE HAS BEEN PROCESSED IN A
 PERFUNCTORY MANNER.  IT IS SUFFICIENT IF COMPLAINANT CAN PROVE THAT
 PERSONAL HOSTILITY BY A UNION OFFICER PREVENTED THE EMPLOYEE'S GRIEVANCE
 FROM RECEIVING FAIR CONSIDERATION.  ID. 386 U.S. AT 194.
 
    THERE WAS NOTHING ARBITRARY ABOUT THE MANNER IN WHICH THE RESPONDENT
 HANDLED THE BRADLEY GRIEVANCE.  IT WAS PROCESSED BY TWO STEWARDS, MR.
 GIBBS AND MR.  RANDALL, AND WAS REVIEWED BY THE UNION'S LABOR RELATIONS
 CONSULTANT, PROFESSOR FRANKS, WHO DETERMINED THAT THE CASE SHOULD NOT BE
 PROCESSED TO THE FIFTH STEP BECAUSE OF A PRIOR AGREEMENT BETWEEN THE
 EMPLOYER AND THE UNION CONCERNING EXCHANGE OF REST DAYS.  IT IS POSSIBLE
 THAT MR. FRANKS MAY, IN THE OPINION OF MS. BRADLEY, HAVE BEEN IN ERROR
 IN HIS CONSTRUCTION OF THE CONTRACT, BUT THERE IS NO EVIDENCE THAT HIS
 DECISION WAS ARBITRARY.  NOR IS THERE ANY EVIDENCE THAT MR. FRANKS
 DETERMINED NOT TO PURSUE MS. BRADLEY'S GRIEVANCE ON THE BASIS OF
 PERSONAL HOSTILITY.  THE UNION'S DETERMINATION NOT TO PROCEED WITH THE
 GRIEVANCE WAS A RESULT OF A RESPONSIBLE REVIEW OF THE MERITS OF THE
 CASE.  THERE WAS NO BREACH OF THE DUTY OF FAIR REPRESENTATION TOWARD MS.
 BRADLEY.
 
                                 POINT II
 
                    RESPONDENT DID NOT BREACH ITS DUTY
 
                   OF FAIR REPRESENTATION IN THE MANNER
 
                    THAT IT NOTIFIED COMPLAINANT OF ITS
 
                     DETERMINATION AS TO HER GRIEVANCE
 
    FRANKS' LETTER TO BRADLEY, DATED JULY 10, WAS RECEIVED BY HER ON JULY
 11 OR JULY 12, 1978.  BRADLEY BELIEVES THAT HIS LETTER MAY HAVE REACHED
 HER AFTER HER TIME LIMITS EXPIRED FOR THE ELEVATION OF HER GRIEVANCE TO
 THE FIFTH STEP.  ON THAT BASIS, SHE ALLEGES THAT THE UNION BREACHED ITS
 DUTY OF FAIR REPRESENTATION BY FAILING TO NOTIFY HER IN A TIMELY FASHION
 OF ITS DECISION CONCERNING HER GRIEVANCE.
 
    NOTHING IN THE RECORD DEFINES THE TIME LIMITS GOVERNING THE ELEVATION
 OF COMPLAINANT'S GRIEVANCE.  HER OWN REPRESENTATIVE COULD NOT STATE
 WHETHER THE PERIOD FOR ELEVATION OF THE GRIEVANCE RAN FROM THE INITIAL,
 UNSIGNED, TOMPKINS LETTER OR WHETHER THE TIME PERIOD RAN FROM JULY 12 OR
 JULY 13, 1978, WHEN COMPLAINANT RECEIVED THE SIGNED "OFFICIAL" LETTER.
 SINCE IT IS COMPLAINANT WHO IS ALLEGING THAT SHE WAS IN SOME FASHION
 PREJUDICED BY THE LATE RECEIPT OF THE UNION'S DETERMINATION AS TO HER
 GRIEVANCE, SHE MUST PROVE THAT IN FACT HER GRIEVANCE EXPIRED PRIOR TO
 THE ISSUANCE OF THE UNION'S DETERMINATION.  SINCE SHE CANNOT ESTABLISH
 THE DATE UPON WHICH THE PERIOD FOR ELEVATION OF HER GRIEVANCE COMMENCED,
 SHE CERTAINLY CANNOT ESTABLISH THAT SHE WAS PREJUDICED BY ANY ACTIONS OF
 THE UNION.
 
    COMPLAINANT HAD BEEN A STEWARD AND OFFICER OF AFGE FOR A LONG TIME.
 (NT 11-13) SHE SHOULD HAVE BEEN AWARE OF CONTRACTUAL PROVISIONS
 GOVERNING HER GRIEVANCE. IF SHE WAS CONCERNED WITH THE PROGRESS OF HER
 GRIEVANCE, SHE COULD SIMPLY HAVE CALLED OR VISITED FRANKS TO ASCERTAIN
 WHAT ACTION, IF ANY, THE UNION WAS GOING TO TAKE WITH RESPECT TO HER
 CASE.  THE WORST THAT CAN POSSIBLY BE SAID FOR THE UNION'S CONDUCT,
 ASSUMING THAT MS.BRADLEY WAS ABLE TO ESTABLISH THAT THE TIME LIMIT FOR
 ELEVATION OF HER GRIEVANCE EXPIRED AT ABOUT THE SAME TIME SHE RECIEVED
 THE LETTER FROM FRANKS, WOULD BE THAT FRANKS HAD INADVERTENTLY FAILED TO
 SEND OUT HIS DETERMINATION CONCERNING HER GRIEVANCE A DAY OR TWO
 EARLIER, THAT IS, PRIOR TO THE DATE ON WHICH COMPLAINANT'S GRIEVANCE
 APPEAL MAY HAVE EXPIRED.
 
    THE DUTY OF FAIR REPRESENTATION REQUIRES EVIDENCE OF BAD FAITH,
 PERFUNCTORY HANDLING OF GRIEVANCES, OR DISCRIMINATORY CONDUCT BY UNIONS.
  THERE IS NO EVIDENCE OF THAT TYPE OF CONDUCT HERE.  THE CASE LAW IS
 CLEAR THAT EXCEPT FOR EXTREME CASES, NEGLIGENCE IS NOT A SUFFICIENT
 BASIS UPON WHICH TO PREDICATE A FINDING THAT A UNION HAS BREACHED ITS
 DUTY OF FAIR REPRESENTATION. SEE, E.G., COE V. UNITED RUBBERWORKERS, 571
 F. 2D 1349, 1350-51 (5TH CIR.  1978);  WHITTEN V. ANCHOR MOTOR FREIGHT,
 INC., 521, F. 2D 1335, 1341 (6TH CIR. 1975);  CANNON V.  CONSOLIDATED
 FREIGHT WAYS CORP., 524 F. 2D 290, 294 (7TH CIR. 1975);  BAZARTE V.
 UNITED TRANSPORTATION UNION, 429 F. 2D, 868, 872 (3RD CIR. 1970);
 BESEDICH V. MISSILE & SPACE DIV. OF LTD., 433 F. SUPP.  954, 959 (E.D.
 MICH. 1977).
 
                                CONCLUSION
 
    THE ADMINISTRATIVE LAW JUDGE CORRECTLY GR