American Federation of Government Employees, Local 987, AFL-CIO (Respondent) and John C. Leggette (Complainant) 



[ v04 p160 ]
04:0160(27)CO
The decision of the Authority follows:


 4 FLRA No. 27
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 LOCAL 987, AFL-CIO
 Respondent
 
 and
 
 JOHN C. LEGGETTE
 Complainant
 
                                            Assistant Secretary
                                            Case No. 40-9026(CO)
 
                            DECISION AND ORDER
 
    ON NOVEMBER 16, 1979, THE ADMINISTRATIVE LAW JUDGE ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING
 THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE 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 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS,
 5 CFR 2400.2.  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 (5 U.S.C. 7135(B)).
 
    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 THIS CASE, AND
 NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, 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. 40-9026(CO) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    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, GA 31093
 
    BEFORE:  JOHN H. FENTON
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, UPON AN UNFAIR
 LABOR PRACTICE COMPLAINT FILED BY MR. JOHN C. LEGGETTE AGAINST LOCAL
 987, AFGE.  IN SUBSTANCE, THE COMPLAINT ALLEGED THAT LOCAL 987 VIOLATED
 SECTION 19(B)(1) OF THE ORDER BY REFUSING TO ELEVATE HIS GRIEVANCE TO
 THE FIFTH STEP OF THE GRIEVANCE PROCESS, THUS EFFECTIVELY DEPRIVING HIM
 OF THE OPPORTUNITY TO PURSUE THE MATTER TO ARBITRATION, BECAUSE HE WAS A
 NONMEMBER AND AN OUTSPOKEN CRITIC OF LOCAL PRESIDENT EDWARD C. MADDOX.
 
                             FINDINGS OF FACT
 
    LOCAL 987 IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF APPROXIMATELY
 12,800 EMPLOYEES AT THE WARNER ROBINS AIR LOGISTICS CENTER, WARNER
 ROBINS, GEORGIA.  EDWARD MADDOX HAS BEEN ITS PRESIDENT FOR THE PAST SIX
 YEARS.  THE UNION HAS 150-175 STEWARDS AND EMPLOYS THREE CLERICALS, ONE
 FULL-TIME AGENT AND A CONSULTANT.  MR. LEGGETTE BECAME A STEWARD IN
 1976, AND WAS VERY ACTIVE AND AGGRESSIVE IN THAT ROLE.  HE BECAME
 DISSATISFIED WITH WHAT HE REGARDED AS AN INEFFECTIVE LOCAL 987 REGIME,
 AND ONE WHICH FAILED TO PROVIDE PROPER SUPPORT FOR ITS STEWARDS.  HE
 ASSERTS THAT HE WAS AN OUTSPOKEN CRITIC OF MADDOX, THAT IT WAS WIDELY
 KNOWN AMONG UNION OFFICIALS THAT HE SUPPORTED MADDOX'S OPPONENT IN THE
 LAST UNION ELECTION AND THAT HE HAD ANNOUNCED HE WOULD RESIGN IF MADDOX
 WAS REELECTED. ON MARCH 1, 1978, HE RESIGNED FROM MEMBERSHIP.
 
    ON MARCH 16, 1978, LEGGETTE RECEIVED AN EVALUATION OF HIS POTENTIAL
 FOR FIRST LEVEL SUPERVISORY POSITIONS.  HE WAS RATED OUTSTANDING IN FOUR
 OF SIX AREAS AND ABOVE AVERAGE IN THE OTHER TWO.  AT THE SAME TIME HE
 RECEIVED AN APPRAISAL OF HIS PERFORMANCE, IN WHICH HE WAS RATED
 OUTSTANDING IN 15 CATEGORIES AND ABOVE AVERAGE IN FIVE.  IT IS
 INTERESTING TO NOTE, AS A BACKDROP TO HIS RELATIONSHIP WITH THE UNION,
 THAT MANAGEMENT VIEWED HIM AS RELATIVELY WEAK IN SUPPORTING OR
 REFLECTING ORGANIZATIONAL POLICY, IN CREATING AND MAINTAINING GOOD
 INTERPERSONAL RELATIONSHIPS, IN SELLING IDEAS AND NEW CONCEPTS, AND IN
 WORKING CLOSELY WITH OTHERS AS A TEAM MEMBER.  NOTWITHSTANDING WHAT
 WOULD APPEAR TO HAVE BEEN RELATIVELY HIGH GRADES, MR. LEGGETTE FILED A
 GRIEVANCE IN THE BEHALF THAT HIS VIGOROUS STEWARDSHIP HAD TAINTED THE
 EVALUATIONS. HE APPROACHED HIS CHIEF STEWARD, MS. GRACE CRAIG, WHO WAS
 TOO BUSY TO REPRESENT HIM. THE TWO AGREED THAT HE SHOULD REPRESENT
 HIMSELF THROUGH THE FIRST FOUR GRIEVANCE STEPS AT THE DIRECTORATE LEVEL,
 AND THEN, IF NECESSARY, SECURE UNION REPRESENTATION AT THE FIFTH STEP,
 OR COMMAND LEVEL.  LEGGETTE TESTIFIED THAT THE TWO ALSO AGREED THAT
 THERE WAS, IN FACT, NO ONE BETTER QUALIFIED TO PRESENT HIS CASE.
 ACCORDINGLY, HE PROCEEDED UNSUCCESSFULLY TO PURSUE THE GRIEVANCE
 THROUGH
 THE FIRST FOUR STEPS.
 
    THE TIME TO INVOKE THE FIFTH STEP PROCEDURES WAS DUE TO EXPIRE ON MAY
 2.  ON APRIL 24 LEGGETTE LEFT HIS GRIEVANCE FILE ON THE DESK OF MR.
 LARRY FRANKS, CONSULTANT TO LOCAL 987, WITH A REQUEST THAT IT BE
 REVIEWED AND ITS MERIT EVALUATED.  IN SUBSEQUENT PHONE CONVERSATIONS
 FRANKS SAID THAT HE VIEWED THE GRIEVANCE AS MERITORIOUS, AND SUGGESTED
 SOME WAYS OF STRENGTHENING IT.  THE TESTIMONY CONCERNING WHO WOULD
 "PRESENT" THE GRIEVANCE IS VERY CONFUSING, IN PART BECAUSE I HAD REAL
 DIFFICULTY IN SEPARATING LEGGETTE'S PRESENT ARGUMENTS AND OPINIONS ABOUT
 THE EVENTS IN DISPUTE FROM HIS TESTIMONY ABOUT WHAT IN FACT WAS SAID OR
 DONE AT RELEVANT TIMES.  HE ASSERTED THAT FRANKS ASKED HIM WHO WOULD
 HANDLE THE CASE, INDICATING THAT MADDOX WOULD NOT APPROVE FRANKS FOR
 THAT TASK.  THIS WAS THE IMPRESSION LEGGETTE RECEIVED, WHICH HE DID NOT
 BASE ON ANY WORDS ATTRIBUTED TO FRANKS.  IN FACT, HE SAID, FRANKS DID
 NOT VOLUNTEER A REASON NOR DID HE ASK OR, EVEN CARE.  LEGGETTE ALSO
 TESTIFIED (OR PERHAPS ARGUED) THAT HE DID NOT DESIRE FRANKS'
 REPRESENTATION BECAUSE HE KNEW IT WOULD BE DENIED HIM, THAT HE WOULD BE
 PERFECTLY WILLING TO REPRESENT HIMSELF PROVIDED IT WAS AUTHORIZED BY
 MADDOX, AND THUS NOT IMPOSE ON FRANKS' TIME, THAT HE WOULD BE PLEASED TO
 BE REPRESENTED BY SOMEONE ELSE DESIGNATED BY MADDOX, AND THAT MADDOX HAD
 A RESPONSIBILITY TO DESIGNATE A REPRESENTATIVE IF HE REQUESTED SUCH
 ASSISTANCE.  /2/ IN ANY EVENT, HE DID CLEARLY CLAIM TO HAVE ASKED THAT
 HIS GRIEVANCE BE ELEVATED ON UNION STATIONARY BEARING MADDOX'S SIGNATURE
 AND TO HAVE MADE KNOWN TO FRANKS HIS CONCERN THAT UNION "SPONSORSHIP" OF
 HIS GRIEVANCE WAS INDISPENSABLE TO ANY REAL HOPE OF ARBITRATION.  THUS,
 WHILE THE FIFTH STEP WAS AVAILABLE TO AN INDIVIDUAL, ARBITRATION WAS
 AVAILABLE ONLY TO THE UNION (ARTICLE 44, SEE F, STEP 5D.) AND ONLY AFTER
 A MEMBERSHIP VOTE.  LEGGETTE HELD STRONGLY TO THE VIEW THAT THE LATTER
 FORUM WAS FORECLOSED BECAUSE OF THE COSTS BORNE BY THE UNION, TO AN
 INDIVIDUAL WHO DID NOT PAY DUES.  HE POINTED TO NO PARTICULAR EVENT AS
 JUSTIFYING THIS VIEWPOINT, NOR DID HE DENY THAT THE UNION HAS IN FACT
 REPRESENTED A NUMBER OF NONMEMBERS IN VARIOUS LEGAL ACTIONS, INCLUDING
 ARBITRATION.  IN ANY EVENT LEGGETTE ASSERTED THAT IT WAS ESSENTIAL THAT
 HE HAVE, AS HE PUT IT, A "REPRESENTATION" ASSIGNMENT FROM THE UNION IN
 ORDER TO PROTECT HIS RIGHT TO ARBITRATION.
 
    FRANKS, ON THE OTHER HAND, SAID THAT LEGGETTE NEVER REQUESTED
 REPRESENTATION AND WAS NOT TOLD THAT FRANKS WOULD NOT REPRESENT HIM, BUT
 RATHER SAID HE WOULD REPRESENT HIMSELF.  HE FURTHER TESTIFIED THAT HE
 COULD RECALL NO SPECIFIC REQUEST BY LEGGETTE THAT HIS GRIEVANCE BE
 ELEVATED ON THE UNION'S STATIONARY, OVER THE SIGNATURE OF A UNION
 OFFICIAL, NOR COULD HE RECALL THAT LEGGETTE HAD EVER ASSERTED HIS
 OVERRIDING CONCERN THAT THESE STEPS WERE NECESSARY TO ANY REALISTIC HOPE
 OF ARBITRATION.  WHILE NOT DENYING THAT SUCH A STATEMENT MAY HAVE BEEN
 MADE, HE ASSERTED THAT IT WAS ABSOLUTELY ROUTINE TO ELEVATE A GRIEVANCE
 WITH A LETTER BEARING MADDOX'S SIGNATURE, WHERE, AS HE BELIEVED WAS THE
 CASE, LEGGETTE WAS A UNION STEWARD WHO WISHED TO PRESENT HIS OWN CASE.
 HE THEREFORE, ON MAY 1, DRAFTED A LETTER FOR MADDOX'S SIGNATURE,
 DESIGNATING LEGGETTE AS THE UNION'S REPRESENTATIVE IN THE PROSECUTION OF
 HIS GRIEVANCE AT STEP 5 (COMPLAINANT'S EXHIBIT NO. 2).  LEGGETTE
 ACCEPTED FRANKS' ASSERTION THAT HE WAS AT THAT TIME UNAWARE OF
 LEGGETTE'S RESIGNATION TWO MONTHS EARLIER.
 
    LATER IN THE DAY, MADDOX ASKED FRANKS IF HE HAD TALKED TO LEGGETTE
 ABOUT THE GRIEVANCE.  FRANKS REPLIED THAT LEGGETTE WISHED TO REPRESENT
 HIMSELF.  MADDOX THEN POINTED OUT THAT, AS LEGGETTE WAS NOT A MEMBER, IT
 WAS IMPROPER AS A MATTER OF AFGE POLICY TO DESIGNATE HIM AS THE LOCAL'S
 REPRESENTATIVE.  FRANKS EXPLAINED THAT THE DRAFT WAS BASED ON THE
 OPPOSITE ASSUMPTION, AND THAT HE WOULD NOT HAVE USED UNION STATIONARY
 NOR WOULD HE HAVE DESIGNATED LEGGETTE AS THE UNION REPRESENTATIVE HAD HE
 KNOWN OF HIS NONMEMBERSHIP.  MADDOX THEN CAUSED A LETTER TO BE PREPARED
 SIMPLY ELEVATING THE GRIEVANCE ON PLAIN STATIONARY FOR LEGGETTE'S
 SIGNATURE.  FRANKS THEN TELEPHONE LEGGETTE, INFORMED HIM THAT MADDOX
 REFUSED TO SIGN THE LETTER, AND TOLD HIM TO COME BY THE UNION OFFICE TO
 PICK UP THE FILE AND TO SIGN A LETTER WHICH HAD BEEN PREPARED ON PLAIN
 STATIONARY FOR HIS OWN SIGNATURE.  ACCORDING TO FRANKS HE TOLD LEGGETTE
 THAT MADDOX WOULD NOT SIGN THE DRAFT BECAUSE LEGGETTE WAS NO LONGER A
 MEMBER OR STEWARD AND HE HAD ASKED TO REPRESENT HIMSELF.  ACCORDING TO
 LEGGETTE, FRANKS SAID HE DID NOT KNOW WHY MADDOX REFUSED TO SIGN, AS HE
 HAD GIVEN NO REASON.  LEGGETTE DID NOT INSIST ON AN EXPLANATION, ON THE
 GROUND THAT THERE WAS NO TIME TO ARGUE OR INQUIRE.  HE SAW NO POINT IN
 DISCUSSING THE MATTER WITH MADDOX INASMUCH AS HE HAD "SEEN FIT TO USE
 HIS DISCRETION TO REFUSE TO SIGN."
 
    WHEN LEGGETTE APPEARED AT THE UNION OFFICE TO PICK UP THE FILE,
 FRANKS WAS NOT THERE.  HE STATED THAT MADDOX OVERHEARD HIS CONVERSATION
 WITH A CLERICAL EMPLOYEE AND CALLED HIM INTO HIS OFFICE.  THERE MADDOX
 ALLEGEDLY SAID, IN THE PRESENCE OF EXECUTIVE VICE PRESIDENT JERRE
 HARVARD AND VICE PRESIDENT HERBERT SHIPLEY:  "LOOKS LIKE YOU NEED SOME
 HELP WITH THAT FILE UNDER YOUR ARM-- I GOT AN APPLICATION HERE THAT YOU
 CAN SIGN." MADDOX WAVED AN APPLICATION AS HE MADE THE STATEMENT IN A WAY
 DESCRIBED AS SARCASTIC OR SARDONIC.  LEGGETTE RECEIVED THE REMARK, HE
 SAID, AS AN INDICATION THAT NONMEMBERSHIP WAS AT THE ROOT OF HIS
 TROUBLE, AND THAT EXECUTION OF AN APPLICATION WOULD YIELD FURTHER UNION
 ASSISTANCE.  HE NEVERTHELESS RESPONDED THAT HE WAS NOT PREPARED TO SIGN
 AN APPLICATION-- THAT HE WOULD HAVE TO REPRESENT EMPLOYEES WHO
 CONTINUALLY ASK HIM TO ASSUME THAT BURDEN.  AS NOTED, THERE WAS NO
 DISCUSSION OF MADDOX'S REFUSAL TO SIGN THE LETTER OR OF ITS IMPACT UPON
 ARBITRATION AS PERCEIVED BY LEGGETTE.  LEGGETTE MAKES NO PRETENSE THAT
 HE WAS TOO TIMID TO DO SO;  RATHER HE SAID THAT THE ANSWER WAS PERFECTLY
 CLEAR TO HIM, GIVEN MADDOX'S ATTITUDE AND ACTIONS, AND THAT FACT THAT HE
 DID NOT HAVE THE COURTESY TO CALL HIM OR EVEN TO CALL MS. CRAIG (HIS
 CHIEF STEWARD).  MADDOX ADMITTED THAT HE SAW LEGGETTE IN THE UNION
 OFFICE AROUND THE TIME OF THE LETTER INCIDENT, AND THAT HE SAID TO HIM,
 "JACK, AREN'T YOU ABOUT READY TO COME BACK ABOARD?" LEGGETTE RESPONDED
 THAT IF HE DID PEOPLE WOULD "HOUND HIM TO DEATH" TO REPRESENT THEM.
 WHEN ASKED WHETHER HE MADE A STATEMENT ABOUT LEGGETTE'S NEED FOR HELP,
 MADDOX SAID THAT HE DID NOT RECALL MAKING SUCH A STATEMENT.  HE WAS NOT
 ASKED WHETHER HE WOULD, IN FACT, DENY THE STATEMENT ATTRIBUTED TO HIM.
 /3/ HOWEVER, BOTH MR. HARVARD AND MR. SHIPLEY CREDIBLY DENIED ANY
 RECOLLECTION OF SUCH REMARKS BY MADDOX.
 
    PRESIDENT MADDOX APPOINTED MS. CRAIG AS UNION OBSERVER AT THE FIFTH
 STEP HEARING.  AGAIN, LEGGETTE LOST.  HE DID NOT REQUEST, ALTHOUGH HE
 HAD THE RIGHT, THAT THE COMMANDER'S ADVERSE DECISION BE REFERRED TO THE
 GRIEVANCE COMMITTEE FOR A DECISION AND RECOMMENDATION TO THE GENERAL
 BODY RESPECTING THE ADVISABILITY OF ARBITRATION.  AGAIN, LEGGETTE
 EXPLAINED HIS FAILURE TO ASK ON THE GROUND THAT THE REQUEST WOULD HAVE
 BEEN FUTILE.  THUS, HE KNEW THAT, IF THE UNION DID NOT SPONSOR ELEVATION
 OF HIS GRIEVANCE TO STEP 5, THE GRIEVANCE COMMITTEE WOULD NOT RECOMMEND
 ARBITRATION BECAUSE IT HAS A NATURAL OBJECTION TO EXPENDING UNION FUNDS
 IN REPRESENTING AN EMPLOYEE WHO DID NOT CONTRIBUTE TO THE ORGANIZATION.
 WHEN I ASKED WHETHER HE FAILED TO MAKE THE REQUEST BECAUSE HE
 ANTICIPATED A NEGATIVE RESPONSE, HE ANSWERED IN THE NEGATIVE, EXPLAINING
 THAT HE FELT IT WAS THE UNION'S RESPONSIBILITY TO TAKE THAT ACTION
 IRRESPECTIVE OF WHETHER HE ASKED FOR IT.  ON CROSS-EXAMINATION HE
 REITERATED THAT HE DECIDED NOT TO TAKE THE MATTER TO THE COMMITTEE, OR
 EVEN TO FIND OUT HOW A MATTER IS TAKEN TO ARBITRATION, BECAUSE HE
 THOUGHT IT WAS INCUMBENT UPON MADDOX TO FIRST ADVISE HIM OF THE ACTION
 HE INTENDED TO TAKE. /4/
 
    THEREAFTER, LEGGETTE REJOINED THE UNION IN SEPTEMBER OR OCTOBER,
 1978, AND RESUMED HIS ROLE OF STEWARD IN NOVEMBER.  WITH RESPECT TO HIS
 APPOINTMENT HE ASSERTS THAT MADDOX HAD NO CHOICE BUT TO APPOINT HIM
 BECAUSE OF THE MEMBERSHIP'S DEMANDS.  ON THE OCCASION OF HIS
 APPLICATION, MADDOX ASKED, "WHAT HAPPENED, DID YOUR CONSCIENCE GET TO
 BOTHERING YOU?" AFTER LEGGETTE LEFT, MADDOX SAID TO CHIEF STEWARD CRAIG:
  "WHY COULDN'T I JUST HAVE ACCEPTED HIS APPLICATION AND WELCOMED HIM
 BACK INTO THE LOCAL?" AS MS. CRAIG TESTIFIED, MADDOX APPEARED TO REALIZE
 HIS REMARK WAS NO IN THE BEST OF TASTE.
 
                DISCUSSION, CONCLUSIONS, AND RECOMMENDATION
 
    THE FIRST DIFFICULTY CONCERNS THE PRECISE VIOLATION ALLEGED.  THE
 CHARGE WAS FILED ON MAY 12, 1978, BEFORE THE FIFTH STEP DECISION WAS
 ENTERED, AND FOCUSED ON THE EVENTS OF MAY 1, WHEN MADDOX CHANGED THE
 LETTER DRAFTED FOR HIS SIGNATURE.  THE GRAVEMEN OF LEGGETTE'S COMPLAINT
 SEEMS TO BE THAT HE WAS DENIED THE OPPORTUNITY TO REPRESENT HIMSELF AS A
 REPRESENTATIVE FOR THE UNION, AS HE STATES AT TRANSCRIPT PAGE 92.  YET
 ON THE SAME PAGE HE SEEMS TO SUM IT UP BY SAYING THAT MADDOX:
 
    1) DIRECTED HIM TO PROCESS HIS OWN GRIEVANCE UP TO THE GENERAL;
 
    2) OFFERED HIM NO ALTERNATIVE AND NO ASSISTANCE;
 
    3) TOOK NO INTEREST IN DETERMINING WHETHER HE WAS ENTITLED TO
 ARBITRATION;
 
    4) DID NOT ADVISE HIM IN ANY RESPECT WHAT HIS ENTITLEMENT WAS.
 
    ALTHOUGH LEGGETTE'S PROOF CENTERED ON THE ELEVATION OF THE GRIEVANCE
 TO STEP 5, AND HIS ARGUMENT WAS THAT LACK OF UNION SPONSORSHIP AT THAT
 LEVEL EFFECTIVELY FORECLOSED ARBITRATION, HE ALSO FOCUSED TO SOME EXTENT
 ON THE FAILURE OF THE UNION TO TAKE THE MATTER TO ARBITRATION.
 LIKEWISE, AND UNDERSTANDABLY, MUCH OF RESPONDENT'S BRIEF IS CONCERNED
 WITH LEGGETTE'S CLAIMS THAT HE WAS DENIED ARBITRATION, QUITE APART FROM
 THE ALLEGEDLY INEVITABLE CONSEQUENCES OF THE WAY IN WHICH THE GRIEVANCE
 WAS HANDLED AT STEP 5.  SUFFICE IT TO SAY THAT THIS ANALYSIS WILL DEAL
 WITH THE ELEVATION OF THE GRIEVANCE, AN EVENT WHICH LEGGETTE CONTENDS
 LED IRREVERSIBLY TO THE TERMINATION OF HIS GRIEVANCE AT STEP 5, AND WILL
 NOT DWELL ON WHAT HAPPENED THEREAFTER.  HIS OWN TESTIMONY WAS THAT HE
 WAS A HIGHLY EXPERIENCED AND SKILLED STEWARD.  I DO NOT ACCEPT,
 THEREFORE, HIS CONTENTION THAT IT SHOULD NOT HAVE BEEN NECESSARY FOR HIM
 TO REQUEST ARBITRATION, BUT THAT IT WAS INCUMBENT UPON UNION OFFICIALS
 TO PRESENT HIS CASE TO THE COMMITTEE WHICH WOULD CONSIDER ARBITRATION.
 I THEREFORE CONSIDER HIS FAILURE TO REQUEST ARBITRATION AS THE END OF
 THE INQUIRY CONCERNING THAT STAGE OF THE PROCESSING OF HIS GRIEVANCE.
 
    AS IS EVIDENT FROM THE RECITATION OF THE FACTS, I HAVE HAD UNUSUAL
 DIFFICULTY IN RESOLVING DISPUTED MATTERS.  DEMEANOR OF THE WITNESSES HAS
 NOT BEEN HELPFUL.  THE ENTIRE PRESENTATION WAS ENCUMBERED, AND CLOUDED,
 BY THE ARGUMENTATIVE STANCE TAKEN BY THE CHARGING PARTY AND RESPONDENT'S
 ATTORNEY, AND THE PERSONAL ANIMOSITY WHICH DEVELOPED.  AS A CONSEQUENCE,
 THE LINE BETWEEN FACTS AND FENCING WAS OFTEN BADLY BLURRED.  I HAVE NO
 REASON TO BELIEVE THAT ANY WITNESS DELIBERATELY LIED.  RATHER MY
 ULTIMATE FINDINGS PROCEED FROM THE SENSE OF THE SITUATION AS I
 UNDERSTOOD IT, AND ITS INHERENT PROBABILITIES.  I BEGIN WITH THE
 OBSERVATION THAT THIS IS A LARGE UNION IN AN ENORMOUS UNIT. LEGGETTE WAS
 ONE OF OVER 150 STEWARDS.  ALTHOUGH HE WAS RELATIVELY ACTIVE AND WAS AN
 OPPONENT OF THE MADDOX REGIME, I DO NOT ACCEPT HIS APPARENT CLAIM THAT
 UNION OFFICIALS WERE WELL AWARE OF, AND KEENLY INTERESTED IN SUCH
 MATTERS.  THERE IS NO EVIDENCE OF ANY STATEMENT MANIFESTING A PROCLIVITY
 TO DENY HIM HIS RIGHTS UNDER THE ORDER BECAUSE HE WAS A POLITICAL
 OPPONENT OF THE MADDOX GROUP.  AT MOST, THERE IS EVIDENCE SUSCEPTIBLE OF
 THE INTERPRETATION THAT NONMEMBERSHIP ALONE MAY HAVE CAUSED HIS
 DIFFICULTIES, I.E., THE CONVERSATION IN MADDOX'S OFFICE.
 
    WHATEVER ELSE MAY HAVE BEEN SAID ABOUT THE INITIATION OF THE
 GRIEVANCE, IT IS CLEAR THAT LEGGETTE EXPRESSED A TOTAL WILLINGNESS IF
 NOT, INDEED, A PREFERENCE FOR THE HANDLING IT HIMSELF.  AT THE HEART OF
 HIS CASE IS THE CONTENTION THAT HE SOUGHT THE RIGHT TO PRESENT HIS OWN
 GRIEVANCE, AS A UNION REPRESENTATIVE, AT STEP 5, AND THAT LACK OF SUCH
 AN APPOINTMENT AND THUS OF UNION "SPONSORSHIP" OF THE GRIEVANCE MEANT
 THAT IT COULD NOT THEREAFTER PROCEED TO ARBITRATION.  IT IS
 UNDERSTANDABLE THAT THE SIGNIFICANCE OF SUCH A REQUEST WOULD BE LOST ON
 FRANKS, TO WHOM SUCH A DESIGNATION OF LEGGETTE WAS PURE ROUTINE, GIVEN
 HIS UNCHALLENGED ASSUMPTION THAT LEGGETTE WAS A STEWARD.  IT IS EVEN
 MORE UNDERSTANDABLE THAT MADDOX, AWARE OF LEGGETTE'S NONMEMBERSHIP,
 WOULD REFUSE TO SIGN A LETTER DESIGNATING HIM AS THE UNION
 REPRESENTATIVE IN THE PROCESSING OF THE GRIEVANCE.  THERE EXISTS, OF
 COURSE, NO REQUIREMENT THAT A UNION PERMIT ITSELF TO BE REPRESENTED BY
 PERSONS WHO OWE IT NO LOYALTY AND ARE BEYOND THE REACH OF ITS
 DISCIPLINE.  THERE IS NO EVIDENCE IN THIS RECORD THAT THE UNION HAS
 DISCRIMINATED AGAINST, OR DENIED FAIR REPRESENTATION TO NONMEMBERS OR TO
 MEMBERS VIEWED AS DISLOYAL, OR EVER THREATENED TO DO SO.  THERE IS, IN
 FACT, EVIDENCE TO THE CONTRARY.  THUS A FINDING THAT LEGGETTE HAS COME
 FORWARD WITH NOT EVEN A SCINTILLA OF EVIDENCE IN SUPPORT OF HIS CLAIM
 WOULD BE UNASSAILABLE BUT FOR TWO SUSPICIOUS CIRCUMSTANCES:  HIS CLAIM
 THAT MADDOX'S PROFESSED REASON FOR NOT ELEVATING HIS GRIEVANCE WAS NEVER
 GIVEN AT THE TIME, AND HIS TESTIMONY THAT MADDOX COUPLED HIS
 SOLICITATION OF LEGGETTE'S MEMBERSHIP WITH THE OBSERVATION THAT HE
 APPEARED TO NEED HELP WITH THE GRIEVANCE FILE THAT WAS UNDER HIS ARM.
 IF CREDITED, THE FIRST FACTOR WOULD SUGGEST THAT THE REASON GIVEN AT THE
 HEARING WAS AN AFTERTHOUGHT, A CLEVER COVER FOR A NAKED (AND THUS
 MEANINGFUL) REFUSAL TO ASSIST A NONMEMBER WITH HIS GRIEVANCE.  IT IS,
 HOWEVER, DIFFICULT TO BELIEVE THAT IT HAPPENED THIS WAY FOR A NUMBER OF
 REASONS.  FIRST THE EXPLANATION GIVEN WAS A GOOD AND SOUND ONE, BASED ON
 CLEAR UNION POLICY AND THE OBVIOUS FACT OF LEGGETTE'S NONMEMBERSHIP, AND
 THERE WOULD SEEM TO HAVE BEEN NO CAUSE TO WITHHOLD COMMUNICATION OF IT.
 SECOND, THERE WAS NO REFUSAL TO PROVIDE CLEARLY NECESSARY ASSISTANCE.
 FRANKS IN FACT HAD REVIEWED THE FILE AND OFFERED SUGGESTIONS, AND
 LEGGETTE WAS ENTITLED TO THE HEARING HE GOT ON HIS OWN REQUEST.  THERE
 WAS NO DEPRIVATION THEREFORE, UNLESS ONE ACCEPTS LEGGETTE'S CLAIM THAT
 LACK OF UNION "SPONSORSHIP" OF THE GRIEVANCE TO THE FIFTH STEP, THAT IS,
 ELEVATION OF THE MATTER OVER MADDOX'S SIGNATURE ON UNION STATIONARY, IN
 A LETTER DESIGNATING HIM AS UNION REPRESENTATIVE, WAS FATAL TO ANY HOPE
 OF ARBITRATION.  BUT AGAIN, THERE IS NO EVIDENCE THAT ARBITRATION IS
 UNAVAILABLE TO INDIVIDUALS WHO PURSUE THEIR OWN GRIEVANCES, AND, AGAIN,
 LEGGETTE FAILED TO REQUEST IT IN ANY EVENT.
 
    THE MATTER OF MADDOX'S STATEMENT IS MORE TROUBLESOME.  IF HE IN FACT
 REFERRED TO LEGGETTE'S NEED FOR HELP WHEN HE SOLICITED HIS MEMBERSHIP,
 THE STATEMENT IS CLEARLY SUSCEPTIBLE OF THE INTERPRETATION THAT SUCH
 ASSISTANCE WOULD BE FORTHCOMING ONLY IF THE MEMBERSHIP APPLICATION WAS
 EXECUTED.  SUCH A CONDITION WOULD, OF COURSE, BE UNLAWFUL.  MADDOX'S
 REMARK, HOWEVER, WAS MADE IN CIRCUMSTANCES WHERE LEGGETTE DID NOT APPEAR
 TO BE SEEKING HELP, UNLESS UNION "SPONSORSHIP" OF HIS GRIEVANCE, AS
 DEFINED ABOVE, IS CONSIDERED HELP AND AN UNDERSTANDING OF THAT IS
 ATTRIBUTED TO MADDOX.  ON THIS RECORD IT WOULD BE FARFETCHED TO DO SO.
 IT IS UNLIKELY THAT FRANKS EVER UNDERSTOOD, IF HE WAS TOLD, WHAT
 LEGGETTE SAYS HE WANTED AND WHY.  MADDOX'S CONDUCT WAS CONSISTENT WITH
 WHAT FRANKS TOLD HIM:  THAT LEGGETTE WISHED TO REPRESENT HIMSELF.  THERE
 IS NO EVIDENCE THAT HE DID, OR EVEN SHOULD HAVE, APPRECIATED THE HIGHLY
 UNORTHODOX REQUEST LEGGETTE CLAIMS TO HAVE MADE TO FRANKS, AND LEGGETTE
 NEVER MADE A DIRECT APPROACH TO MADDOX.  IN SUCH CIRCUMSTANCES, A
 REFERENCE TO LEGGETTE'S NEED FOR HELP WOULD SEEM BESIDE THE POINT, AND I
 CONCLUDE THAT LEGGETTE HAS NOT PROVED, BY A PREPONDERANCE OF THE
 EVIDENCE, THAT SUCH A STATEMENT WAS MADE.  MOREOVER, I WOULD FIND THAT
 EVEN ON EXPLICIT REFERENCE TO THE NEED FOR HELP WOULD NOT VIOLATE THE
 ORDER ON THIS RECORD.
 
    THE DUTY OF FAIR REPRESENTATION REQUIRES THAT A UNION REPRESENT ALL
 EMPLOYEES IN A UNIT FOR WHICH IT IS THE EXCLUSIVELY RECOGNIZED
 REPRESENTATIVE WITHOUT HOSTILITY OR DISCRIMINATION, AND TO EXERCISE ITS
 DISCRETION IN SUCH MATTERS HONESTLY AND IN GOOD FAITH.  /5/ THUS, IT
 MUST CONSIDER AND PROCESS GRIEVANCES OF MEMBERS AND NONMEMBERS ALIKE,
 DRAWING NO DISTINCTION ON THAT OR ANY UNFAIR AND INVIDIOUS GROUND.  I
 CANNOT READ THAT OBLIGATION AS FORECLOSING AN APPEAL TO THE NONMEMBER TO
 JOIN AND AVOID THE FREE RIDE.  THE UNION OFFICIAL WHO UTTERS SUCH A
 STATEMENT OF COURSE INVITES SUSPICION, AND IF OTHER CIRCUMSTANCES
 FORTIFY THAT SUSPICION, HE RISKS AN UNFAIR LABOR PRACTICE FINDING.  THIS
 RECORD IS BARREN, HOWEVER, OF EVIDENCE THAT LOCAL 987 HAS NEGLECTED ITS
 OBLIGATION.  WHAT LITTLE EVIDENCE EXISTS IS TO THE CONTRARY, AND THE
 EVIDENCE BY LEGGETTE CONCERNING THIS GRIEVANCE IS HARDLY CONVINCING.  IN
 MY VIEW, HE CANNOT BUILD HIS CASE ON A SINGLE STATEMENT WHICH ALLEGEDLY
 ACKNOWLEDGED HIS NEED FOR THE UNION'S HELP AND MAY HAVE REMINDED HIM OF
 HIS OBLIGATION TO HELP THE UNION.  AS MADDOX CANDIDLY CONCEDED, THE
 UNION'S MEMBERSHIP DOES NOT CHEERFULLY SHOULDER THE BURDENS OF THE
 FREERIDER.  THE LAW DOES NOT AND CANNOT COMMAND THEM TO DO SO.  IT ONLY
 REQUIRES THAT THE UNION ASSUME SUCH BURDENS AND DISCHARGE ITS
 OBLIGATIONS TO ALL IT REPRESENTS WITHOUT RESPECT TO UNION MEMBERSHIP OR
 SUCH INVIDIOUS CONSIDERATIONS AS RACE OR SEX.  IF ANY SUSPICION OF A
 DISINCLINATION FAIRLY TO REPRESENT NONMEMBERS ARISES FROM THE STATEMENT
 ATTRIBUTED TO MADDOX, IT DRAWS NO STRENGTH FROM THE CONTEXT, BUT IS
 UNDERMINED BY IT.  A LABOR ORGANIZATION EXISTS TO PROSELETIZE, AND HAS
 EVERY RIGHT TO PERSUADE NONMEMBERS THAT ITS DUTY TO REPRESENT THEM
 CREATES A CORRESPONDING DUTY ON THEIR PART TO SUPPORT IT.  SUCCESS IN
 THIS EFFORT IS INDISPENSABLE TO ITS CAPACITY TO FUNCTION EFFECTIVELY AS
 A REPRESENTATIVE OF ALL EMPLOYEES.  ABSENT OTHER, RATHER CONVINCING
 EVIDENCE OF HOSTILITY TO NONMEMBERS, I CONCLUDE THAT SUCH AN APPEAL TO
 LEGGETTE IS NOT EVIDENCE OF AN UNWILLINGNESS TO DISCHARGE ITS
 OBLIGATION.  IN SUM, I CONCLUDE THAT NO VIOLATION OF SECTION 19(A)(1)
 HAS BEEN ESTABLISHED.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT PROHIBITED BY
 SECTION 19(A)(1) OF THE EXECUTIVE ORDER, IT IS HEREBY RECOMMENDED THAT
 THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                          JOHN H. FENTON
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOV 16 1979
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /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 (5 U.S.C. 7101-7135) HAD NOT BEEN
 ENACTED.  TH