[ 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 GRANTED RESPONDENT'S MOTION TO
DISMISS THE COMPLAINT. THERE IS NO EVIDENCE OF HOSTILITY TOWARD
COMPLAINANT BY THE OFFICERS OR EMPLOYEES OF LOCAL 987. NOR IS THERE
EVIDENCE THAT THE UNION ACTED IN AN ARBITRARY, PERFUNCTORY, OR BAD FAITH
FASHION IN PROCESSING COMPLAINANT'S GRIEVANCE. COMPLAINANT HAS FAILED
TO ESTABLISH THAT THE TIME PERIOD FOR ELEVATION OF HER GRIEVANCE EXPIRED
BEFORE SHE RECEIVED FRANKS' LETTER. EVEN ASSUMING SHE PROVED THE PRIOR
EXPIRATION OF HER GRIEVANCE, THE MOST THAT COULD BE SAID IS THAT THE
UNION MADE AN INADVERTENT ERROR. PROOF OF NEGLIGENCE IS NOT SUFFICIENT
TO DEMONSTRATE A BREACH OF THE DUTY OF FAIR REPRESENTATION. THE
COMPLAINT SHOULD BE DISMISSED.
RESPECTFULLY SUBMITTED,
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, AFGE LOCAL 987
/1/ 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 PROVISION IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUE RATHER THAN THE EXECUTIVE ORDER.
/2/ NEITHER THE CONTRACT NOR MANY OTHER DOCUMENTS RELEVANT TO THIS
CONTROVERSY WERE INTRODUCED INTO EVIDENCE.
/3/ THIS DOCUMENT IS NOT IN EVIDENCE.
/4/ COMPLAINANT TESTIFIED ON DIRECT THAT ON THE DAY RANDALL DELIVERED
A SIGNED COPY OF THE LETTER TO HER, SHE ASKED HIM "TO PLEASE REVIEW THE
CASE AND HAVE IT ELEVATED OR, YOU KNOW, RESEARCHED . . .", AND THAT HE
PROMISED TO GET TOGETHER WITH LARRY FRANKS AND JERRE HARVARD AND TAKE
THE NECESSARY ACTION. (T. 25 & 26). ON CROSS SHE SET THE DATE OF SUCH
DELIVERY AND CONVERSATION AS JULY 13, AFTER THE UNION HAD REJECTED THE
GRIEVANCE. (T. 70). OBVIOUSLY EARLIER COMMUNICATION HAD TAKEN PLACE.
/5/ STEELE V. LOUISVILLE AND NASHVILLE RAILROAD, 323 U.S. 192(1944).
/6/ FORD MOTOR COMPANY V. HOFFMAN, 345 U.S. 330(1953).
/7/ HUMPHREY V. MOORE, 375 U.S. 335, 348(1964).
/8/ VACA V. SIPES, 386 U.S. 171(1967).
/9/ SEE HIS MEMORANDUM 79-55, FROM WHICH THIS ANALYSIS DRAWS VERY
HEAVILY.
/10/ GREAT WESTERN UNIFREIGHT SYSTEM, 209 NLRB 446; CF. ROBESKY V.
GENERAL MOTORS CORP., 573 F.2D 1082 (9TH CIR. 1978).