23:0686(92)CO - NFFE Local 1453 and Kenneth A. Crawford; NFFE Local 1453 and Clara Mae Dixon -- 1986 FLRAdec CO



[ v23 p686 ]
23:0686(92)CO
The decision of the Authority follows:


 23 FLRA No. 92
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1453
 Respondent
 
 and
 
                                            Case No. 4-CO-20022
 
 KENNETH A. CRAWFORD, AN INDIVIDUAL
 Charging Party
 
 
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1453
 Respondent
 
 and
 
                                            Case No. 4-CO-30012
 
 CLARA MAE DIXON, AN INDIVIDUAL
 Charging Party
 
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This consolidated unfair labor practice case is before the Authority
 on exceptions filed by the General Counsel to the attached Decision of
 the Administrative Law Judge.  The Respondent filed an opposition to the
 General Counsel's exceptions.  The consolidated complaint alleged that
 the Respondent (the Union) breached its "duty of fair representation" as
 required by section 7114(a)(1) of the Federal Service Labor-Management
 Relations Statute (the Statute) and thereby violated section 7116(b)(1)
 and (8) of the Statute.
 
                      II.  Facts and Judge's Findings
 
    Case No. 4-CO-20022 (Kenneth A. Crawford).  Employee Crawford was
 being assisted by the Union in a grievance about his proposed
 suspension.  Without Crawford's knowledge, the agency (Veterans
 Administration) had returned an attempted "third step" grievance request
 to the Union, advising it that the proper procedure to follow was to
 refile the grievance at step one.  The Judge found that the Union failed
 to inform Crawford of the status of his grievance, but that the evidence
 did not support a finding that the Respondent "refused" to provide such
 information.  The Judge stated that "there is no refusal because there
 was no specific request actually communicated to the Union." The Union
 took no further action on the grievance.
 
    Case No. 4-CO-30012 (Clara Mae Dixon).  Employee Dixon was informed
 that she was to be terminated and asked the Union President to help her.
  She was referred to the Chief Steward.  At their first meeting, the
 Chief Steward asked Dixon to come back once she received her letter of
 discharge.  When Dixon came back with her letter, the Chief Steward
 asked Dixon to get her personnel file and come back later.  Dixon came
 back, but the Chief Steward was not in the office.  On her last day of
 work, Dixon went to the Union President's office.  Following the
 President's offer to review "quite a few papers" and "quite a few
 serious charges" against her, Dixon replied that she had more papers to
 get from home and would return.  She did not return and did not
 specifically request that the Union file a grievance on her behalf.  The
 Judge did not credit Dixon's claim that the Union stated that there was
 nothing it would do.
 
                          III.  Judge's Decision
 
    The Judge noted that while the Authority has addressed the question
 of an exclusive representative's duty under section 7114(a)(1) of the
 Statute to represent employees "without regard to labor organization
 membership," it has not addressed the duty under that section to
 represent employees "without discrimination."
 
    The Judge analyzed at length the private sector experience under the
 general provisions of the National Labor Relations Act (the NLRA), as
 amended.  The Supreme Court in Vaca v. Sipes, 386 U.S. 171 at 190
 (1967), stated that:
 
          A breach of the statutory duty of fair representation occurs
       only when a union's conduct toward a member of the collective
       bargaining unit is arbitrary, discriminatory, or in bad faith.
 
    As the Judge pointed out, the Federal Courts and the National Labor
 Relations Board (NLRB) have differed widely in interpreting what
 constitutes conduct that is "arbitrary, discriminatory, or in bad
 faith."
 
    The Judge rejected the proposed standard advanced by the General
 Counsel that mere negligence or ineptitude is sufficient to establish
 that a union has been "arbitrary" and thus breached its duty.  He also
 rejected as imprecise the NLRB's standard that "something more than
 negligence" must be shown to establish a breach of duty.  The Judge
 concluded that in order to show that a union has breached its duty of
 fair representation under the Statute, the General Counsel must prove
 that the union has "deliberately and unjustifiably refused or failed to
 represent a bargaining unit employee." The Judge applied this standard
 to the facts of each case.
 
    Crawford.  As to employee Crawford, the Judge found that while the
 Union may be faulted as ineffective or inept in its actions regarding
 Crawford's grievance, the General Counsel failed to prove that the Union
 deliberately and unjustifiably failed or refused to represent him.  The
 Judge thus found no breach by the Union of its duty of fair
 representation and no violation of the Statute.
 
    Dixon.  As to employee Dixon, the Judge found that Dixon had not
 fully cooperated with the Union in an effort to grieve her case and that
 she did not in fact request the Union to file a grievance on her behalf.
  He found that the Union had not failed or refused to represent Dixon
 and thus did not breach its duty or violate the Statute.
 
                       IV.  Positions of the Parties
 
    The General Counsel excepts to the standard used by the Judge to
 determine the extent of the Union's duty of fair representation under
 the Statute and to the Judge's application of this standard to the
 facts.  The General Counsel maintains that negligence alone is
 sufficient grounds for finding a violation.
 
    The Respondent Union generally supports the standard applied by the
 Judge.  It points also to the fact that, while the Union took no action
 to refile Crawford's grievance, Crawford knew in sufficient time before
 his suspension that the grievance had to be refiled, but did not do so.
 
                               V.  Analysis
 
    We are in substantial agreement with the Judge's rationale and with
 his ultimate conclusions.  /1/ For the reasons that follow, we find that
 the Union did not violate the Statute in the circumstances of either of
 these consolidated cases.  While the Authority has addressed an
 exclusive representative's alleged breach of its duty of fair
 representation based on union membership considerations, /2/ we have not
 yet fully addressed the nature of an exclusive representative's duty of
 fair representation where union membership is not a factor.  /3/ We must
 first determine what standard to apply in deciding whether the duty has
 been met.
 
    The duty of an exclusive representative to fairly represent all unit
 employees arises under the second sentence of section 7114(a)(1) of the
 Statute.  See Appendix.  While the first sentence of section 7114(a)(1)
 is comparable to section 9(a) of the NLRA, under which the concept of
 the duty of fair representation developed in the private sector, that
 sentence sets forth certain rights of representatives which must be
 accorded to a labor organization which has achieved the status of
 exclusive representative for an appropriate bargaining unit.  The second
 sentence of section 7114(a)(1) -- which has no counterpart in the NLRA
 -- imposes certain duties upon a labor organization when it acquires the
 right of an exclusive representative set forth in the first sentence.
 /4/
 
    The second sentence of section 7114(a)(1) is virtually identical to
 the second sentence of Section 10(e) of Executive Order 11491, as
 amended (see Appendix), which was interpreted as "imposing certain
 obligations upon a labor organization when it acquires the rights of an
 exclusive representative." See, for example, United States Department of
 the Navy, Naval Ordnance Station, Louisville, Kentucky, 3 FLRC 686, 690
 (1975).  Since the provisions of the Statute and the Executive Order are
 virtually identical, and when Congress enacted the Statute it adopted
 the language of the Executive Order without comment, the Executive Order
 case law is relevant.  In American Federation of Government Employees,
 Local 2126, AFL-CIO, San Francisco, California, 1 FLRA 993 (1979), the
 Authority held that the exclusive representative, by refusing a request
 to act as an advisor, "did not act arbitrarily or perfunctorily or in
 bad faith, and thus did not breach its duty of fair representation." In
 American Federation of Government Employees, AFL-CIO, Local 987, 3 FLRA
 715 (1980), it was held that "mere negligence will not support a finding
 that the duty (of fair representation) has been breached." In Local
 R7-51, National Association of Government Employees (NAGE), A/SLMR No.
 896, 7 A/SLMR 775 (1977), the Assistant Secretary held that the "duty of
 fair representation is breached only when the exclusive representative's
 conduct is arbitrary, discriminatory, or in bad faith."
 
    Under the Executive Order, therefore, a union's duty of fair
 representation included not only the prohibition on discrimination
 expressly set forth in section 10(e), but also the obligation to
 represent employees without arbitrariness or bad faith implicit in that
 section.  In our view, Congress intended the Authority to apply a
 similar standard under the analogous provision in section 7114(a)(1) of
 the Statute.  The Eleventh Circuit's decision in Warren v. Local 1759,
 American Federation of Government Employees, 764 F.2d 1395, 1396, 1399
 n.5 (11th Cir.), cert. denied, 106 S.Ct. 527 (1985), supports our
 conclusion that the second sentence of section 7114(a)(1) is the source
 of the duty of fair representation in the Federal sector.  But see Pham
 v. Local 916, American Federation of Government Employees, 799 F.2d 634,
 638-39 (10th Cir. 1986), petition for rehearing filed (October 8, 1986).
 
    Based upon the clear language of the Statute and the applicable
 legislative history, /5/ we find that where union membership is not a
 factor, the standard for determining whether an exclusive representative
 has breached its duty of fair representation under section 7114(a)(1) is
 whether the union deliberately and unjustifiably treated one or more
 bargaining unit employees differently from other employees in the unit.
 That is, the union's actions must amount to more than mere negligence or
 ineptitude, the union must have acted arbitrarily or in bad faith, and
 the action must have resulted in disparate or discriminatory treatment
 of a bargaining unit employee.  As discussed above, this standard is
 consistent with that used in Executive Order cases and with that used by
 the National Labor Relations Board in deciding similar cases.  See
 Office and Professional Employees International Union, Local No. 2,
 AFL-CIO, 268 NLRB 1353 (1984).
 
                              VI.  Conclusion
 
    As to Kenneth A. Crawford, the Authority finds that the General
 Counsel has not established that the Union deliberately and
 unjustifiably treated him differently from other bargaining unit
 employees.  There is no showing that the Union's actions in failing to
 notify Crawford of the return of his grievance or to take any action to
 renew it at a different step constituted other than mere negligence or
 miscommunication.
 
    As to Clara Mae Dixon, the Authority also finds that the General
 Counsel has not established that the Union deliberately and
 unjustifiably treated her differently from other bargaining unit
 employees.  In this regard, there is no showing that the Union did
 anything other than express views on the nature of the evidence against
 Dixon.
 
    Accordingly, the Authority finds that the Union did not violate
 section 7114(a)(1) of the Statute, and did not violate section
 7116(b)(1) and (8) of the Statute.  Therefore, we shall dismiss the
 consolidated complaint.
 
                                   ORDER
 
    IT IS ORDERED that the consolidated complaint in Case Nos. 4-CO-20022
 and 4-CO-30012 be, and it hereby is, dismissed in its entirety.
 
    Issued, Washington, D.C., October 30, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                                APPENDIX
 
    Section 7114(a)(1) provides:
 
          Section 7114.  Representation rights and duties
 
          (a)(1) A labor organization which has been accorded exclusive
       recognition is the exclusive representative of the employees in
       the unit it represents and is entitled to act for, and negotiate
       collective bargaining agreements covering, all employees in the
       unit.  An exclusive representative is responsible for representing
       the interests of all employees in the unit it represents without
       discrimination and without regard to labor organization
       membership.
 
    Section 10(e) of Executive Order 11491, as amended, provided in
 pertinent part:
 
          Sec. 10.  Exclusive recognition.
 
                       .   .   .   .   .   .   .
 
 
          (e) When a labor organization has been accorded exclusive
       recognition, it is the exclusive representative of employees in
       the unit and is entitled to act for and negotiate agreements
       covering all employees in the unit.  It is responsible for
       representing the interests of all employees in the unit without
       discrimination and without regard to labor organization membership
       . . . .
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
        Respondent
 
                           and          Case No. 4-CO-20022
 
    KENNETH A. CRAWFORD, AN INDIVIDUAL
        Charging Party
 
 
 
 
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
         Respondent
 
                            and           Case No. 4-CO-30012
 
    CLARA MAE DIXON, AN INDIVIDUAL
         Charging Party
 
    Patrick J. Riley, Esq.
          For the Respondent
 
    Roy W. McIntosh
          For the Charging Party
 
    Barbara S. Liggett
          For the General Counsel
 
    Before:  FRANCIS E. DOWD
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. Section 7101 et seq.  It was instituted by the Regional Director
 of the Fourth Region of the Federal Labor Relations Authority.
 
    The charge in Case No. 4-CO-20022 was filed on August 5, 1982, by
 Kenneth A. Crawford, an individual (hereinafter referred to as
 Crawford), against the National Federation of Federal Employees, Local
 1453 (hereinafter referred to as the Union or Respondent.  The charge in
 Case No. 4-CO-30012 was filed on February 14, 1983, by Clara Mae Dixon,
 an individual (hereinafter referred to as Dixon), against the Union.  On
 May 18, 1983, an Order Consolidating Cases, Amended Consolidated
 Complaint and Amended Notice of Hearing issued, which was further
 amended at the hearing in this matter.  The complaint alleges that
 Respondent violated section 7116(b)(1) and (8) of the Statute, when it
 failed and refused to represent Crawford and Dixon, and thereby failed
 and refused to comply with the provisions of section 7114(a)(1) of the
 Statute.  Essentially, the issue is whether or not the Union breached
 its "duty of fair representation" to Crawford or Dixon, or both.
 
    A hearing was held in Miami, Florida at which time the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  Briefs
 filed by the Respondent and General Counsel have been duly considered.
 
    Upon the consideration of the entire record /6/ in this case,
 including my evaluation of the testimony and evidence presented at the
 hearing, and from my observation of the witnesses and their demeanor, I
 make the following findings of fact, conclusions of law, and recommended
 order.
 
                             Findings of Fact
 
    1.  The Veterans Administration, herein called VA, is an agency
 within the meaning of Section 7103(a)(3) of the Statute.  The VA Medical
 Center, Miami, Florida, herein called VAMC, is an administrative
 subdivision within the VA and an activity within the meaning of Section
 2421.4 of the Rules and Regulations of the Authority.
 
    2.  National Federation of Federal Employees and Local 1453 are labor
 organizations within the meaning of Section 7103(a)(4) of the Statute.
 Prior to October 1, 1981, NFFE, Local 1453 was the exclusive
 representative of certain VAMC employees.  On October 1, 1983 certain
 units at the VA were consolidated in Case No. 3-UC-11.  Local 1453
 became part of a consolidation of NFFE locals known as the Council of
 Veterans Administration Locals.
 
    3.  At all times material herein, the following persons were agents
 of Respondent:  Elnora B. Weaver (President), Mary Vanaman (Fourth Vice
 President and Secretary), Jeanette Cottle (Chief Steward), Benny Dykes
 and Preston Jackson (Area Stewards).
 
                 Case No. 4-CO-20022 (Kenneth A. Crawford)
 
    4.  Kenneth Crawford was employed at the VAMC as GS-16 Purchasing
 Agent from December 1979 through July 1982.  He is now employed by the
 U.S. Postal Service.  His immediate supervisor at the VAMC was Frank
 Tiano, Chief of Purchasing and Contracts.  Tiano reported to Walter
 Whittaker, Assistant Chief of Supply and to Wayne Hart, Chief of Supply.
  Hart reported to T. C. Doherty, the VAMC Director.
 
    5.  According to Crawford, Tiano had promised him a day off on
 Friday, March 5, 1982.  This was cancelled and at Crawford's request
 Union Chief Steward Cottle met with Tiano and Crawford on about March 3
 about the matter, together with Maggie Smith, Tiano's assistant.  The
 result was that management took the position it had a right to cancel
 days off for the good of the service when it was necessary to do so.
 The next day, Crawford became ill and reported to the VA hospital "in
 the evening" where he was able to obtain a "two week duty excuse"
 covering the period from March 5 through March 18 or 19.  Crawford
 described his illness as a "service-connected injury" which flares up
 from time to time.  He was not any more specific.  Crawford, whom I
 found to be intelligent, competent and aggressive, chose not to directly
 inform his supervisor about the reasons for his failure to report to
 work.  If credited, Crawford merely told the doctor to inform the
 administrative duty officer who would, in turn inform the service of his
 absence (Tr. 48).  When he eventually (at 11:30 the evening of March 4)
 called his supervisor he was told he was being placed on AWOL.
 Apparently his shift began at 8:00 p.m. and carried over to Friday,
 March 5.  It is not clear whether this is the shift he originally had
 been given off, or whether it is a shift actually beginning the evening
 of March 5.
 
    In any event, one thing led to another and Crawford's next dispute
 with the VA concerned his insistence on using sick leave and LWOP during
 his absence and VA's refusal to grant him LWOP in lieu of annual leave.
 Union steward Cottle assisted Crawford at some of his meetings with
 supervisory officials.
 
    6.  A different account of what happened may be gleaned from G.C.
 Exh. No. 5, a proposed suspension (for 15 days) dated March 29.  This
 document accuses Crawford of the following:
 
          a.  On March 3, 1982 you contacted Mrs. Maggie Smith, stating
       that you needed four hours of annual leave and that you would come
       to work by 12:30 PM or call.  You did not report for work or call
       and were charged 4 hours of Absence Without Leave (AWOL).
 
          b.  You did not follow proper procedures in requesting sick
       leave on March 5, 1982 in that you did not request sick leave
       until 1:00 PM and Medical Center Policy 05-36-77 dated August 10,
       1977 requires you to call in within two hours of the beginning of
       your tour of duty.  You were therefore charged 5 hours of Absence
       Without Leave (AWOL).
 
          c.  You did not follow proper procedures in requesting leave
       for March 5, 1982 through March 12, 1982 in that you have failed
       to submit an SF-71 covering this period of time as requested by
       Mr. Tiano, your immediate supervisor, and as required by Medical
       Center Policy 05-36-77 dated August 10, 1977.
 
          d.  You were charged Absence Without Leave for the period of
       March 5, 1982 through March 12, 1982 for failing to properly
       request leave.
 
    On the second page of the proposed suspension notice, Crawford
 indicated that he desired the Union to be given a copy of the letter.
 On the same day, March 29, he sent a second memo to the Union requesting
 its assistance but failed to indicate the reason for his request.
 (Having previously obtained the assistance of Cottle by merely
 telephoning her, it appears to me that Crawford was attempting to
 "document" his attempt to obtain Union assistance by these memos.) In
 any event, he talked to Chief Steward Cottle and Mary Vanaman (a paid
 secretary of the Union) on April 6 and Vanaman typed a request for an
 extension of time in which he responded to the proposed suspension.
 Hart replied on April 26 granting an extension of time until close of
 business on April 30.  Crawford's rebuttal dated April 30 was prepared
 by himself and typed by Vanaman.  I credit Cottle's testimony that she
 did not review it.
 
    7.  By memo dated May 6, Hart informed Crawford that he was being
 suspended for 7 days, May 12 through to May 18.  He was also told he had
 a right to file a grievance which "must be submitted through your
 supervisor not later than fifteen (15) calendar days after you receive
 this suspension." (Under the current agreement, then in effect, an
 employee had 30 days.) I credit Crawford's testimony, and discredit
 Cottle, that she suggested to Crawford that he file his grievance at the
 Step Three level with the Director.  (See last paragraph of G.C. Exh.
 No. 9.) By memo dated May 20, Crawford prepared and signed a grievance
 which was submitted with a cover letter from the Union to Director T. C.
 Doherty.  By memo dated May 26, Doherty returned the grievance to the
 Union but did not notify Crawford of this fact.  The memo advised the
 Union that the proper procedure was to file the grievance at Step One
 with the Chief of Supply Service.
 
    8.  Crawford testified that in June and July he attempted to contact
 Cottle, and she acknowledges these attempts.  Except for Crawford's own
 testimony, the evidence does not establish that his purpose was to
 inquire about the status of his grievance.  He never really stated in
 any phone calls that this is all he was seeking;  he didn't leave any
 message at the Union office;  and he didn't memorialize in writing his
 intended purpose.  He could have been seeking help in connection with
 more serious problems he was having at the same time, as noted in the
 next paragraph.  Nevertheless, it was logical and quite natural for him
 to be inquiring about his grievance, so I accept his testimony that this
 was his purpose.  More importantly, during this period no Union official
 attempted to contact Crawford and tell him about Doherty's refusal to
 accept the grievance at Step Three.
 
    9.  By memo dated June 24, Crawford was notified by Hart that VAMC
 proposed to remove him based on a number of incidents, including
 insubordination and AWOL, occurring between May 7 and June 1 (G.C. Exh.
 No. 10).  The testimony does not indicate that Crawford sought the
 Union's assistance with these incidents until after his removal was
 proposed.  On about July 5 or 6 he found Cottle in the Union office.
 She said Vanaman was on vacation so she couldn't provide clerical help.
 She suggested he submit a handwritten response to Doherty, which he did
 on July 7.  On July 22 Doherty issued a decision to remove Crawford
 (G.C. Exh. No. 12).  Although his decision made reference to the prior
 suspension, I believe the General Counsel is mistaken when suggesting
 inferentially that but for the prior suspension perhaps the penalty here
 would be something less than removal.  To suggest this conclusion is to
 ignore the allegations of insubordination contained in the proposed
 removal letter.
 
    10.  On an unspecified date, Vanaman told Crawford that Weaver had
 received a reply from Doherty.  On July 26, 1982, Crawford went to the
 Union office and confronted Weaver about the letter from Doherty that
 Vanaman had mentioned to him.  Crawford asked if she was aware of the
 letter and if she had a copy of it.  Weaver looked through several files
 and found the letter dated May 26, 1982.  Crawford read the letter and
 asked why someone had not informed him so that they could go back to
 Steps One and Two.  Weaver replied that the Union had followed the
 correct procedure, and that if Crawford believed what Doherty was saying
 in the letter, then he should not be in the Union office he should be
 downstairs with management.  Weaver threw the file folder designated
 "Kenneth Crawford" to Crawford and told him to get out, that there was
 nothing the Union could do.  I am unable to credit Weaver's testimony
 that she never discussed Doherty's letter with Crawford.
 
    11.  The Complaint alleges in paragraph 9 that on several occasions
 in June and July after the grievance was filed, (1) Crawford attempted
 unsuccessfully to contact the Union for the purpose of inquiring about
 the status of his grievance, and (2) that the Union officials failed and
 refused to provide him with such information, and (3) took no further
 action with respect to the grievance.  As to (1) I credit Crawford's
 testimony and conclude that this allegation is supported by the
 evidence.  As to (2) I find that the Union failed to inform Crawford of
 the status of his grievance;  however, the evidence does not support a
 finding that Respondent refused to provide such information.  There is
 no refusal because there was no specific request actually communicated
 to the Union.  As to (3), there is no dispute that the Union took no
 further action on the grievance.  No attempt was made to refile at Step
 One or to ask Doherty to reconsider his Step Three decision.
 
    12.  Factually, Respondent's defense is simply to explain what
 happened from its viewpoint and to attempt to rebut some of Crawford's
 assertions.  To this end, Counsel for Respondent produced two witnesses:
  Union President Weaver and Chief Steward Cottle.  (Mary Vanaman was out
 of the state and unavailable to testify.) Except where there testimony
 was in direct conflict with Crawford's, I found them both to be
 basically honest and forthright.  Although I have accepted Crawford's
 testimony that he was attempting to contact Cottle, I do not find that
 she was intentionally avoiding any contact with him.  A careful review
 of the entire record, including the exhibits, shows that whenever
 Crawford really wanted to get ahold of a Union official he was able to
 do so.  The fact remains, however, that the Union officials failed to
 communicate with him.  I am unable to accept Weaver's explanation that
 she didn't tell Crawford because she didn't see him.  What is more
 likely, as her counsel suggests, is that she never even thought to
 contact Crawford.  Weaver also testified that she didn't go back to the
 Director because she thought that would have been futile.  What is more
 likely is either that she too readily accepted management decisions in
 order to avoid confrontations, or she really thought it was correct to
 file at Step Three.  But, she did not request arbitration and offered no
 explanation as to why she didn't refile the grievance at Step One.
 Finally, as to Weaver's testimony that she made "an honest mistake," I
 do not accept her own characterization of the Union's inaction.  Her
 repetition of this phrase seemed more contrived -- for the purpose of
 this hearing -- than genuine.  (When she threw Crawford's file at him
 and told him to get out, she certainly was not admitting any mistake.)
 With respect to Cottle, her testimony was more confused than evasive and
 in many respects more believable than Weaver or Crawford.  I accept her
 explanation that she assumed Crawford received a copy of Doherty's reply
 because he signed his grievance and because he did all his own writing
 and kept copies of all the pertinent documents.  I believe this
 describes Crawford accurately.  I do not believe she was aware of
 Doherty's reply until preparing for this hearing.  I do not agree with
 the General Counsel that her testimony (Tr. 194-198) was contradictory.
 Even Crawford appeared to believe that Cottle was unaware of the Doherty
 response (Tr. 68, lines 10-12).
 
                            Case No. 4-CO-30012
 
    13.  On December 8, 1982, Dixon, an employee at the VAMC since
 February 8, 1982, was informed by Assistant Chief of Nursing Elizabeth
 Hamlet, that her performance as a nursing assistant was unsatisfactory
 and that she would be terminated on January 25, 1983.  The following
 day, Dixon went to see Weaver who was on duty at the time.  Dixon told
 Weaver she was going to be discharged, and asked Weaver if she could
 help her.  Weaver told her this was Chief Steward Cottle's job and told
 her to see Cottle (Tr. 102, lines 19-20).  Dixon went to Cottle and
 explained her situation.  Cottle told Dixon to come back when she had
 received the letter of discharge.
 
    14.  On January 14, 1983, Dixon received a notice of discharge (G.C.
 Exh. No. 14).  After receiving the notice Dixon met Cottle on or about
 January 21 enroute to the bathroom and followed her into the bathroom
 where she showed Cottle the discharge notice.  I credit Cottle that she
 told Dixon to get her file from personnel and meet Cottle later in the
 Union office (Tr. 102, lines 15-16).  Cottle went to the Union office
 and waited but Dixon did not appear.  I do not credit Dixon's version
 that Cottle reviewed her "papers" and said there's nothing she could do.
  /7/
 
    15.  On January 25, her last day of work, Dixon came to Weaver's
 office accompanied by Queenie Johnson.  Dixon had quite a few papers
 with her which Weaver examined and then commented that "you have quite a
 few serious charges here against you." According to Weaver, Dixon
 replied, "Well, they are all lies." Weaver then offered to get together
 and see what could be done to get the matter resolved, but Dixon said
 she had more materials at home which she would obtain and then return in
 a few days.  She did not return.  Again, I do not credit Dixon's version
 that Weaver merely responded (allegedly like Cottle) that there was
 nothing she could do.  /8/
 
    16.  I also find, based upon my review of Dixon's testimony, that
 while she sought the assistance of the Union, she did not specifically
 request the Union officials to file a grievance as alleged in the
 Complaint.
 
    17.  From June 16, 1978 until June 4, 1982, a collective bargaining
 agreement (G.C. Exh. No. 21) between the Union and VAMC (herein called
 the Local Agreement) governed the rights and obligations of the parties.
  An Interim Agreement (G.C. Exh. No. 22) defined the rights of the
 parties between June 4, 1982 and January 12, 1983, the effective date of
 the current collective bargaining agreement (G.C. Exh. No. 20) between
 NFFE and the Veterans Administration (herein called the Master
 Agreement).  Each of these agreements contains a negotiated grievance
 procedure which was effective during the periods set forth above.  The
 grievance procedures in the Local Agreement and the Interim Agreement
 specifically provided that the grievance procedures did not apply to the
 termination or separation of probationary employees.  (G.C. Exh. No. 21,
 Article XII, Section 1;  G.C. Exh. No. 22, Grievance Procedure,
 Paragraph 2(f)).  However, the current Master Agreement is silent as to
 probationary employees.  Because they are not specifically excluded, the
 Union argues that they are included.  The VA, however, apparently argues
 that probationary employees are excluded in Article 6, Section 2 because
 they come within the category of statutory exclusions encompassed by
 Section 7121(c)(4) of the Statute which states that any negotiated
 grievance procedure shall not apply to grievances concerning "any
 examination, certification, or appointment."
 
                   Discussion of the Applicable Case Law
 
    Insofar as I have been able to determine, this is a case of first
 impression concerning a union's duty of fair representation under the
 Federal Service Labor-Management Relations Statute.  In my opinion, this
 straightforward facts presented here present the Authority with an
 opportunity to chart a course and enunciate the appropriate standard to
 be followed in future cases in which the exclusive representative is
 charged with negligence or ineptitude.  For this reason, I have elected
 to present a detailed analysis of the history surrounding the duty of
 fair representation.  To this end I have been assisted by an excellent
 brief submitted by Respondent's counsel, whose main thesis and detailed
 research have been incorporated herein to the maximum extent possible,
 as modified and expanded to reflect my own views.
 
             A.  Evolution of the Duty of Fair Representation
 
    In 1944, the Supreme Court held in a racial discrimination case
 arising under the Railway Act (45 U.S.C. Section 151 et seq.) that a
 bargaining representative had a "duty to exercise fairly the power
 conferred upon it in behalf of all those for whom it acts, without
 hostile discrimination against them." Steele v. Louisville & Nashville
 RR Co., et al., 323 U.S. 192 (1944);  see also Tunstall v. Brotherhood
 of Locomotive Firemen, 323 U.S. 210 (1944).  And, in The Wallace
 Corporation v. NLRB, 323 U.S. 248, 255, the Supreme Court observed that
 a union, by its selection as bargaining representative, became "the
 agent of all the employees, charged with the responsibility of
 representing their interests fairly and impartially." Subsequently, the
 Supreme Court extended this duty to unions certified under the National
 Labor Relations Act, as amended, (herein the NLRA) 29 U.S.C. Section 141
 et seq.  Ford Motor Co. v. Huffman, 345 U.S. 330 (1953).
 
    The National Labor Relations Board, hereinafter referred to as the
 NLRB, decided in 1962 that Section 7 of the NLRA gives employees the
 "right to be free from unfair or irrelevant or invidious treatment by
 their exclusive bargaining agent in matters affecting their employment."
 Miranda Fuel Company, Inc., 140 NLRB 181, 185.  Thus, the NLRB concluded
 that a breach of the duty of fair representation constituted an unfair
 labor practice.  The Miranda decision, however, was denied enforcement
 by a divided Second Circuit, 326 F.2d 172 (1963).
 
    In Humphrey v. Moore, 375 U.S. 325, 349 (1966), Moore, on behalf of
 other aggrieved employees, sought to enjoin the implementation of a
 decision by the Union and the Company to dovetail seniority lists.  The
 Supreme Court held that it was proper to institute such suit in a State
 Court under Section 301 of the NLRA, but that federal law governed.  In
 a passing reference to the NLRB's Miranda decision, the Court stated:
 
          Although there are differing views on whether a violation of
       the duty of fair representation is an unfair labor practice under
       the Labor Management Relations Act, it is not necessary for use to
       resolve that difference here.  Even if it is, or arguably may be,
       an unfair labor practice, the complaint here alleged that Moore's
       discharge would violate the contract and was therefore within the
       cognizance of federal and state courts, . . . subject, of course,
       to the applicable federal law.  (Footnotes omitted).
 
    In discussing a union's duty of fair representation the Supreme Court
 quoted from its earlier decision in Ford v. Huffman, as follows:
 
          A wide range of reasonableness must be allowed a statutory
       bargaining representative in serving the unit it represents,
       subject always to complete good faith and honesty of purpose in
       the exercise of its discretion.  Id., at 338.  Just as a union
       must be free to sift out wholly frivolous grievances which would
       only clog the grievance process, so it must be free to take a
       position on the not so frivolous disputes.
 
    As to the merits, the Supreme Court held that (1) "the union acted
 upon wholly relevant consideration, not upon capricious and arbitrary
 factors," and (2) "the union took its position honestly, in good faith
 and without hostility or arbitrary discrimination." Accordingly, the
 Supreme Court found no breach of the duty of fair representation.
 
    In 1967 the Supreme Court had an opportunity to further elaborate on
 the duty of fair representation in its landmark decision of Vaca v.
 Sipes, 386 U.S. 171 (1967).  A principal issue resolved by the Court was
 that the NLRB's Miranda decision did not preempt the State Court from
 jurisdiction over suits by individuals under Section 301, and that the
 NLRB's "tardy assumption of jurisdiction" over the duty of fair
 representation cases by virtue of its Miranda decision did not "oust the
 courts of their traditional jurisdiction to curb arbitrary conduct by
 the individual employee's statutory representative." Id. at 183.  In
 discussing the standard against which to determine whether a union has
 violated its duty of fair representation, the Court at (190) stated
 that:
 
          A breach of the statutory duty of fair representation occurs
       only when a union's conduct toward a member of the collective
       bargaining unit is arbitrary, discriminatory, or in bad faith.
       See Humphrey v. Moore, supra;  Ford Motor Co. v. Huffman, supra.
 
    Four years later in Motor Coach Employees v. Lockridge, 403 U.S. 274
 (1971), the Court reaffirmed the Vaca standard.  In order for an
 employee to make out a claim of breach by his union "(h)e must have
 proved 'arbitrary or bad-faith conduct' on the part of the Union." Id.
 at 299, citing Vaca, supra, 386 U.S. at 193.  While discussing
 preemption principles in Lockridge, the Court explained that "the duty
 of fair representation was judicially evolved . . . to enforce fully the
 important principle that no individual union member may suffer
 invidious, hostile treatment at the hands of the majority of his
 coworkers," and that "the very distinction . . . between honest,
 mistaken conduct, on the one hand, and deliberate and severely hostile
 and irrational treatment, on the other hand, needs strictly to be
 maintained." Id. at 301.  (Emphasis mine.)
 
        B.  Conflict Among the Federal Courts in the Application of
 
                the Vaca standard.
 
    As noted above, the Vaca standard is "arbitrary, discriminatory, or
 in bad faith." In this regard the Courts have had very little problem
 with determining when a union's conduct is discriminatory or in bad
 faith.  There is no question that the duty has been violated when the
 evidence demonstrates that the union did not pursue a grievance due to
 personal animosity, internal political rivalry, invidious discrimination
 or some other form of intentional misconduct.  The problem arises in
 determining when such conduct is "arbitrary." /9/ Unfortunately, there
 have been some conflicting opinions issued by lower federal courts
 concerning the type of conduct which comes within the meaning of
 "arbitrary." The reason for the conflict seems to stem from the fact
 that the Supreme Court in Vaca also used the word "perfunctory"
 elsewhere in its decision.  /10/ As a result, some courts consider
 perfunctory to be synonymous with arbitrary or at least included within
 the definition of arbitrary.  Ruzicka v. General Motors Corp., 523 F.2d
 306 (6th Cir. 1975) (Ruzicka I), clarified 649 F.2d 1207 (1981) (Ruzicka
 II);  Robesky v. Quantas Empire Airways, Ltd., 573 F.2d 1082, 1089-91
 (9th Cir. 1978).  While the courts agree that simple negligence is
 insufficient to give rise to a breach of duty claim, the courts differ
 with each separate set of facts on the amount or degree of negligence,
 if any, required to come within the meaning of "arbitrary" or
 "perfunctory." Compare Dutrisac v. Caterpillar Tractor Co., 511 F. Supp.
 719 (N.D. Cal. 1981) with Hoffman v. Lonza Inc., 658 F.2d 519 (1981).
 
    The 1981 Dutrisac decision essentially follows the Ruzicka principle
 that a showing of bad faith is not an essential element in any claim of
 unfair representation.  In Dutrisac, the union steward processed a
 grievance to the third step but then failed to timely file a request for
 arbitration for a discharged employee.  The court concluded that in a
 case of a terminated employee, where a determination had been made by
 the union that the grievance had some merit, "no matter how innocently
 the time limit was missed, such conduct cannot constitute 'mere'
 negligence." Id. at 727.  Since missing the deadline deprived the
 employee of his exclusive forum to challenge his discharge, the
 steward's failure to act was arbitrary conduct constituting a breach of
 the duty of fair representation.  /11/ On the other hand, a different
 result was obtained in Hoffman a case involving essentially the same
 facts.  There, the Seventh Circuit concluded that applicable law
 required proof of intentional misconduct on the part of the union.
 Since the union simply "forgot" to perfect the grievant's appeal to
 arbitration, a breach of duty had not been shown.  Citing Lockridge, at
 299, the Court concluded that the duty of fair representation was not
 breached "without substantial evidence of fraud, deceitful action or
 dishonest conduct." /12/ Accord, Graf v. Eglin, Joliet and Eastern
 Railway Co., 697 F.2d 771 (7th Cir. 1983);  Superczynski v. P.T.O.
 Services, Inc., 706 F.2d 200 (7th Cir. 1983);  Medlin v. Boeing Vertol
 Co., 620 F.2d 957, 961 (3rd Cir. 1980).  See also, Cannon v.
 Consolidated Freightways Corp., 524 F.2d 290 (7th Cir. 1975).
 
    Thus, we have the broad standard of Ruzicka and Dutrisac line of
 cases, and we have a more narrow standard as exemplified by the
 Lockridge and Hoffman line of cases.  More recently, we have another
 lower federal court decision which, in my opinion, is worthy of
 consideration and discussion.
 
    In Lewis v. American Postal Workers Union, 561 F. Supp. 1141 (W.D.
 Va. 1983), a steward processed a grievance at the early steps of a
 grievance procedure but failed to file timely at Step Three.  The
 Grievance was denied as untimely, and the union elected not to go to
 arbitration and so advised Lewis.  Chief Judge James C. Turk reviewed a
 number of court opinions on the duty of fair representation, including
 those applicable in the Fourth Circuit.  /13/ He also pointed to the
 lack of uniformity among the courts by citing certain other cases.  /14/
 He then concluded as follows:
 
          The court concludes, after having reviewed the foregoing
       authorities, that some degree of conscious misfeasance or
       dereliction is contemplated by the "arbitrary" standard as set
       forth in Vaca.  Thus, the courts' reluctance to find liability for
       purely negligent acts results from the attempt to implement this
       distinction.  The other two elements of Vaca -- bad faith and
       discrimination -- clearly contemplate distasteful action of the
       type noted before unions may be held liable.  "Arbitrary" or
       "perfunctory" treatment of grievances may also be condemned on
       such grounds, when it rests on indifference or slovenliness -- in
       short, when the union has completely abdicated its
       responsibilities to union members.  Thus, when a shop steward
       misses a deadline because he just does not care, his union may be
       liable for breaching the duty of fair representation.  Negligent
       handling of a grievance, however, when it results not from a total
       lack of interest therein, but from an honest mistake or
       carelessness, is not actionable.  Like the negligent tortfeasor in
       any other area of negligence law, the negligent shop steward has
       not committed a wrong of the sort contemplated by Vaca.
 
          Applying these principles to this case, the court concludes
       that (Steward) Morrison's failure to file the grievance resulted
       not from indifference or slovenliness, but from honest mistake or
       carelessness.  Plaintiff, when deposed, testified as to no facts
       which would suggest otherwise.  In fact, as the court already has
       noted, plaintiff testified at his deposition that he and Morrison
       were on good terms, and that the latter missed the deadline only
       because, at worse, he was unfamiliar with the grievance procedure.
        Further, the court has already held that no evidence supports
       plaintiff's contention that the grievance was handled against a
       general backdrop of perfunctoriness.
 
    It appears to me that what the Lewis court is saying is that the
 broad standard of Ruzicka and Dutrisca is incorrect because negligent
 acts are not intentional acts of misconduct.  At the same time, Lewis
 gives new meaning to the "arbitrary and perfunctory" language of Vaca by
 recognizing that there may be circumstances where intentional misconduct
 ought to be imputed to the union where it is shown that the union, by
 its conduct and behavior, has completely abdicated its responsibilities
 to its members.  By settling on the phrase "some degree of conscious
 misfeasance or dereliction," the Lewis court essentially is adopting the
 Lockridge and Hoffman line of cases requiring evidence of intentional
 misconduct.  In the process of reaching this result, however, the court
 has done the same thing as many other courts have done;  it has used new
 terminology and, in effect, new word-tests.
 
    In light of the foregoing, it seems clear that the "absence of clear
 standards and the extremely broad approach taken by some courts have
 operated to adversely affect national labor policy in several important
 ways" /15/ because "unions have considered it more prudent to process
 clearly nonmeritorious grievances all the way through the grievance
 procedure and on to arbitration, lest they be accused of breaching their
 duty of fair representation." /16/ Since we are living in a very
 litigious society these days, the result has been clogged grievance and
 arbitral channels, a proliferation of cases before the NLRB and the
 courts, and an expenditure of a substantial amount of time and financial
 resources by management and union officials.  It is these factors which
 the Authority should consider in deciding what test or standard should
 be followed in federal sector cases.
 
        C.  The NLRB's View that Something More Than Negligence is
 
                Required for Union Action or Inaction to be Considered
 
                "Arbitrary."
 
    In 1974, the NLRB issued a most significant decision in Great Western
 Unifreight /17/ in which it concluded as follows:
 
          From the above court and Board decisions, it is clear that
       negligent action or nonaction of a union by itself will not be
       considered to be arbitrary, irrelevant, invidious, or unfair so as
       to constitute a breach of the duty of fair representation
       violative of the Act.  Something more is required.  In the instant
       case, the modified complaint merely alleges only that the
       Respondent negligently failed and refused to timely process the
       meritorious grievance to the serious detriment of the Charging
       Party.  Nothing more is charged.  Absent an allegation showing
       something more than negligence alone, we conclude that the
       negligent conduct of the Respondent alleged herein does not
       constitute by itself a breach of the duty of fair representation
       in violation of Section 8(b)(1)(A) of the Act.
 
    In its discussion of prior cases the NLRB cited a case /18/ in which
 the union failed to refer for employment an employee whom it had
 neglected to register at the hiring hall.  "Mere forgetfulness or
 inadvertent error," the NLRB held, "is not the type of conduct that the
 principles of Miranda were intended to reach." Also cited by the NLRB
 was a First Circuit decision /19/ involving a union's negligence in
 failing to discover a defect in an employer's machine with the result an
 employee was injured.  The court held that the NLRA, as amended,
 "imposes upon the exclusive representative only a duty of good faith
 representation, not a general duty of due care."
 
    From the foregoing, it would appear that the NLRB -- whose decisions,
 of course, are not binding upon the Authority -- has chosen a narrow
 standard more in accord with the Lockridge-Hoffman-Lewis approach.
 
        D.  Decisions of the FLRA Interpreting the Federal Service
 
                Labor-Management Relations Statute.
 
    Section 7114(a)(1) of the Statute provides that a labor organization
 is "responsible for representing the interests of all employees in the
 unit it represents without discrimination and without regard to labor
 organization membership." To date, the cases issued by the Authority
 interpreting the Statute /20/ have only involved representing employees
 "without regard to labor organization membership." Tidewater Virginia
 Federal Employees Metal Trades Council/IAM, Local 441, 8 FLRA No. 47 8
 FLRA 217 (March 19, 1982);  /21/ American Federation of Government
 Employees, Local 1778, AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (October 8,
 1982);  National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 519
 (November 23, 1982);  and Overseas Education Association, 11 FLRA No.
 75, 11 FLRA 377 (1983).
 
    In only one case has the Authority had an opportunity to address the
 issue of whether negligence alone violates the duty of fair
 representation.  American Federation of Government Employees, Local 987,
 3 FLRA No. 115, 3 FLRA 717 (1980).  But that case sheds no light on the
 subject because the Authority adopted the Chief Judge's decision without
 comment, except to say that its decision "was based solely on the basis
 of E.O. 11491, as amended" and "does not prejudge in any manner either
 the meaning or application of related provisions in the new Statute or
 the result which would be reached by the Authority if the case had
 arisen under the Statute rather than the Executive Order." Accordingly,
 to the extent the General Counsel relies on this case as precedent, such
 reliance is misplaced.  /22/ However, as I indicated at the beginning of
 this decision the present case presents an opportunity for the Authority
 to establish its own standard.
 
           E.  The General Counsel's Position on the Applicable
 
                Standard.
 
    In her brief, Counsel for the General Counsel concedes that federal
 courts do not consistently agree on the essential elements of the duty
 of fair representation" and that "mere negligence by the union in
 processing a grievance does not rise to the level of misconduct
 necessary to support an action for a breach of the duty of fair
 representation . . . " She notes, however, that gross negligence by a
 union in processing a grievance is the type of "arbitrary" conduct
 needed to establish a breach of the duty of fair representation."
 (Citing, Robesky, Ruzicka, Dutrisac, supra.)
 
    With specific reference to Crawford (Case No. 4-CO-20022), the
 General Counsel's brief states:
 
          As the Sixth Circuit stated in Ruzicka, supra, "(W)hen a union
       makes no decision as to the merit of an individual's grievance but
       merely allows it to expire by negligently failing to take a basic
       and required step toward resolving it, the union has acted
       arbitrarily and is liable." /23/
 
    And, in reference to Dixon (Case No. 4-CO-30012), the brief states:
 
          Thus, Counsel for the General Counsel asserts that the Union's
       callous indifference to Dixon's plight is yet another example of a
       case where the individual interest at stake is strong and the
       union's failure to perform a ministerial act completely
       extinguishes the employee's right to pursue his claim.  Under the
       circumstances, there is no public policy to be furthered by
       shielding the Union from consequences of its failure to discharge
       its duty to fairly represent Dixon.  See, e.g., Dutrisac, and
       Robesky, supra.  Counsel for the General Counsel urges the
       Administrative Law Judge to conclude, as the court concluded in
       Dutrisac, supra "that the union should be responsible for a total
       failure to act that is unexplained and unexcused."
 
    There is no question, therefore, that the General Counsel is asking
 the Authority to adopt a more stringent and broader standard for federal
 employee unions than what the NLRB has adopted for unions representing
 employees in the private sector.
 
        F.  The Respondent's Position on the Applicable Standard.
 
    Respondent submits that the proper standard is intentional misconduct
 as stated by the Seventh Circuit in Hoffman, supra.  That circuit
 explicitly set forth the standard in Graf, supra, 697 F.2d at 778, as
 follows:
 
          The union has a duty to represent every worker in the
       bargaining unit fairly but it breaches that duty only if it
       deliberately and unjustifiably refuses to represent the worker.
 
    In his brief, Counsel for Respondent sets forth the following
 arguments:
 
          There are at least three reasons why a broader standard would
       be inappropriate.  First, a broader standard would permit the FLRA
       continually to impose what it would have done in the same
       situation.  Such intervention would be destructive of good
       bargaining relationships since an agency would never be sure that
       the negotiated grievance procedure was viable or final.  In
       addition, the union's representation would be undermined.  It
       would constantly act as if it were under review, causing inhibited
       exercise of its discretion.  Employees would turn to the FLRA in
       droves when dissatisfied with the outcome of their grievances.
       Eventually, the union would lose its significance and become too
       weak to act effectively or at all.  The unions must be permitted
       to exercise discretion freely, to review grievance procedure and
       policies routinely, and to correct admitted mistakes in grievance
       handling when they occur.  (There should be no naive or idealistic
       impression that mistakes will not occur.)
 
          Second, it is necessary to protect the union's financial
       resources and thereby its effectiveness.  Federal sector labor
       organizations cannot compel the payment of dues.  Often they
       represent units which dwarf their dues-paying membership.  A
       broader standard, that the General Counsel no doubt advocates,
       will deplete the union's meager coffers, especially when the
       General Counsel is seeking monetary relief for the charging
       parties as here.
 
          Finally, the CSRA explicitly states "without discrimination" in
       Section 7114(a)(1).  It does not say "arbitrary" as it could have
       since Vaca was decided well before the CSRA was enacted.  It is
       difficult to imagine "discrimination" in any sense other than
       intentional and deliberate.  The existing case law is helpful for
       sake of analysis but the private sector statutes are silent with
       respect to the duty.  The CSRA is not.  The statutory language
       itself should control the breach of the duty of fair
       representation in the federal sector.
 
    Counsel's brief also discusses the 1983 decision of the Seventh
 Circuit in Graf, supra, where the court reexamined and adhered to its
 1981 decision in Hoffman v. Lanza, inc.  Daniel Graf was a discharged
 employee who requested his union representative to file an appeal which
 had to be filed within 60 days in accordance with the grievance
 procedure.  The union representative wrote out the appeal by hand and
 stuck it in his pocket together with several others only to find after
 60 days had expired that it was still there in his pocket.  The union
 agent testified that his failure to submit the appeal was inadvertent.
 There was no evidence of bad motive.  It was clear to the court that the
 agent's failure to dig Graf's appeal out of his pocket was pure
 negligence.  But the court said that the union agent's "lapse of memory"
 does not signify such a "reckless indifference to Graf's interests that
 it can be called intentional misconduct." In its brief, Counsel also
 made these comments about the Graf decision:
 
          The appellate court also considered a few practical
       considerations in reaching a narrow standard of liability.  First,
       competence is in the union's self-interest.  Union officers "must
       render an adequate level of 'constituent service' to retain
       (their) position(s)." 697 F.2d at 778.  And in turn the union must
       have competent stewards if it expects to remain the exclusive
       representative of the employees.  Thus, both the stewards/officers
       and the union have incentives to exercise care and diligence in
       handling of grievances independent of incentives provided by the
       potential for liability.
 
          Secondly, union officers are not professional advocates.  They
       are hourly workers who perform the duties of stewards, on a
       part-time, unpaid basis.  They cannot be held to the same standard
       as attorneys.
 
    Finally, Counsel points out that under Section 7121(b)(3)(B) of the
 Statute, negotiated grievance procedures must provide federal employees
 with the right to present grievances on their own behalf. "If bargaining
 unit members cannot trust the Local to represent their interests, they
 will file their own grievances.  They will question whether they are
 receiving any value for their union dues.  If they conclude that they
 are not, they will elect new officers or seek to decertify.  Thus, it is
 in the union's best interest for its agents to do the best that it can
 for the bargaining unit."
 
                            Conclusions of Law
 
           A.  Rejecting the General Counsel's Broad Standard.
 
    I believe the Authority should reject, as I do, the broad standard of
 Ruzicka and Dutrisac whereby negligence may serve as a basis for
 concluding that a union's conduct is arbitrary.  First, such a standard
 misinterprets the Supreme Court's decision in Vaca and completely
 ignores Lockridge where the Supreme Court stated that "the very
 distinction . . . between honest, mistaken conduct, on the one hand, and
 deliberate and severely hostile and irrational treatment, on the other
 hand, needs strictly to be maintained." As the Lewis court stated:
 "some degree of conscious misfeasance or dereliction is contemplated by
 the 'arbitrary' standard as set forth in Vaca." As the First Circuit
 said in Brough, supra, the exclusive representative has a duty of good
 faith representation and not a "general duty of due care."
 
    Second, not all bargaining units in the federal sector are composed
 of employees at the higher GS-grade levels;  some are composed mainly of
 employees at the lower end of the GS-grade scale.  Similarly, not all
 employees are well-educated, intelligent and sophisticated.  Some
 bargaining units are composed primarily of employees of minority status,
 especially if located in certain geographical areas.  These are facts of
 life which have to be recognized because, as the court said in Graf,
 "union officers are not professional advocates.  They are hourly workers
 who perform the duties of stewards on a part-time, unpaid basis.  They
 cannot be held to the same standard as attorneys." With this in mind, I
 believe it would be unfair to impose such a broad standard and such a
 high duty of care upon federal employee union representatives.
 
        B.  Rejecting the NLRB's Standard for the Private Sector.
 
    With respect to the NLRB's test of proving "something more than
 negligence," I conclude that it has both advantages and disadvantages.
 On the one hand, it has the advantage of eliminating "mere negligence"
 cases from the NLRB's case flow while at the same time not precisely
 defining "something more" and leaving this to case-by-case litigation.
 On the other hand, it has the disadvantage of encouraging litigation to
 flesh out the meaning and the parameters of "something more" which by
 itself lacks specificity.  While the NLRB may conclude that its test is
 appropriate in the private sector, I am inclined to advocate an even
 narrow standard in the federal sector.
 
             C.  Adopting a Narrow Standard for Federal Sector
 
                Employees.
 
    As noted at the beginning of this decision, the Supreme Court has
 held that "federal law governs." Therefore, the Vaca standard followed
 by the courts and the NLRB is the applicable standard for cases arising
 under the Federal Service Labor-Management Relations Statute.  That
 standard requires finding a breach of the duty of fair representation
 where the union's conduct is arbitrary, discriminatory or in bad faith.
 /24/ To the extent that some confusion has arisen as to the kinds of
 conduct deemed "arbitrary," I agree with, and adopt, the excellent
 analysis of the Seventh Circuit Court of Appeals in its 1981 decision in
 Hoffman v. Lanza, 658 F.2d 519 (1981) where the court concluded that the
 Vaca standard required a finding of intentional misconduct before a
 union may be found to have breached its duty.  When the Seventh Circuit
 in Graf, supra, recently reconsidered its Hoffman decision, it restated
 the test as follows:
 
          The union has a duty to represent every worker in the
       bargaining unit fairly but it breaches that duty only if it
       deliberately and unjustifiably refuses to represent the worker.
 
    Respondent persuasively argues that the Authority should adopt this
 standard.  I agree for the following reasons.
 
    First of all, my reading of the Supreme Court decisions cited herein
 convinces me, as it did the Seventh Circuit and other courts, that the
 Supreme Court was speaking of intentional union misconduct.  In Graf the
 use of the word "deliberately" adds nothing to its previous Hoffman
 standard because this is a synonym for "intentionally." However, the use
 of the word "unjustifiably" is a helpful addition because it separates
 intentional acts into two categories:  justifiable and unjustifiable.
 In the former category may be included a union's decision, based upon a
 rational and reasonable exercise of judgment, not to file a grievance at
 Step One, to settle grievances at any stage, or not to go to arbitration
 on every grievance.  /25/ In the latter category may be included those
 cases where the courts have rejected the union's explanation for its
 conduct, instead finding the conduct or inaction was based upon
 invidious and irrelevant considerations, bad faith, hostility, fraud,
 deceitful action, dishonesty, or irrational treatment -- all of which
 come within the meaning of unjustifiable." /26/ Frankly, I don't think
 it should make too much difference whether the Authority adopts the
 Hoffman language of "intentional misconduct" or the Graf language of
 "deliberately and unjustifiably." I am inclined to prefer the latter
 simply because it is more specific and should be easier to apply.
 
    The adoption of a narrow standard for federal employee unions is
 consistent with the trend today towards less regulation by the
 government.  It also reflects a desire to be sensitive to the peculiar
 problems of federal employee unions.  As Respondent points out, federal
 unions cannot compel the payment of dues and they often represent units
 which draw their dues-paying membership.  Utilization of grievance
 procedures requires a union to have competent representatives.  Resort
 to arbitration requires financial resources.  Not every bargaining unit
 provides either the manpower or the money.  For this reason, the
 Authority should limit its involvement in a federal employee union's
 internal affairs to determining only whether the union is representing
 all employees in unit fairly;  i.e., without discrimination.  If
 employees are not satisfied with how well they are being represented,
 they can vote for new officers or seek to decertify the union and,
 perhaps choose another union.  In my opinion the Authority should not
 follow the example of those courts which have become unnecessarily
 involved in looking over the shoulder of union representatives and
 second-guessing their judgment.  Rather, the Authority should limit its
 intervention to those cases where the General Counsel has proven that
 the union has deliberately and unjustifiably refused or failed to
 represent a bargaining unit employee.  It is this standard which I shall
 apply herein.
 
               D.  Case No. 4-CO-20022 (Kenneth A. Crawford)
 
    Section 7118 of the Statute provides that a "preponderance of the
 evidence" is required in order to find a labor organization has engaged
 in an unfair labor practice.  The Consolidated Complaint alleges in
 paragraph 9 that (1) on several occasions in June and July after the
 grievance was filed, Crawford attempted unsuccessfully to contact the
 Union for the purpose of inquiring about the status of his grievance,
 and (2) that the Union officials failed and refused to provide him with
 such information, and (3) that Respondent took no further action with
 respect to the grievance.
 
    As to (1) I credit Crawford's testimony and conclude that this
 allegation is supported by the evidence.  As to (2) I find that the
 Union failed to inform Crawford of the status of his grievance;
 however, the evidence does not support a finding that Respondent refused
 to provide such information.  There is no refusal because there was no
 specific request actually communicated to the Union.  As to (3) there is
 no dispute that the Union took no further action on the grievance.  No
 attempt was made to refile at Step One, or to ask Doherty to reconsider
 his Step Three decision, or to go to arbitration, or take any other
 action.  Rather, the Respondent's President simply took no action at
 all.  /27/ The issue, therefore, is whether the Union's undisputed
 failure to take any further action with respect to Crawford's grievance
 is the kind of conduct which constitutes a breach of duty of fair
 representation.
 
    As discussed and concluded above, the Vaca standard of "arbitrary,
 discriminatory, or in bad faith" is applicable here, and in order to
 prove a breach of the duty of representation the General Counsel must
 prove by a preponderance of the evidence that the union "deliberately
 and unjustifiably" failed or refused to represent an employee.  Applying
 this standard to the instant facts, the suggestion is why did the Union
 fail to take any action?  The answer, as suggested by Respondent's
 counsel, is quite clear.  This is a classic case of ineffective and
 inept representation, but even if the Union's conduct were characterized
 as negligence, it would not be actionable.  There is absolutely no
 evidence to suggest that the Union's inaction was malicious,
 discriminatory or in bad faith.  There is no evidence of hostility
 towards Crawford by Weaver, who hardly knew him, or by Cottle, who
 represented him in meetings and gave him assistance both with his
 suspension and his subsequent removal.  There is no evidence that the
 Union's failure to take any further action on the grievance was
 motivated by an intent to discriminate against Crawford or an intent to
 treat him unfairly.  In short, there is an absence of evidence to serve
 as a basis for imputing to the Union an intention on its part to
 deliberately and unjustifiably fail to represent Crawford properly.
 What happened here is that Union President Weaver received Doherty's
 denial of the grievance filed at Step Three and she simply concluded it
 was futile to "go back to the Director" (TR 132).  It apparently did not
 even occur to her to attempt to refile at Step One or to notify Crawford
 so that he could do so.
 
    On the basis of the foregoing and my review of the entire record, I
 conclude that the General Counsel has not proven by a preponderance of
 the evidence that Respondent deliberately and unjustifiably failed to
 inform Crawford or to take any further action on the grievance.  For
 this reason I do not find that Respondent breached its duty of fair
 representation.  Accordingly, I find and conclude that Respondent did
 not fail to comply with Section 7114(a)(1) in violation of Section
 7116(b)(8), and did not interfere with, restrain and coerce employees in
 the exercise of their rights guaranteed under the Statute, in violation
 of Section 7116(b)(1).
 
                   Case No. 4-CO-30012 (Clara Mae Dixon)
 
    Section 7118 of the Statute provides that a "preponderance of the
 evidence" is required in order to find that a labor organization has
 engaged in an unfair labor practice.  For the reasons set forth above in
 paragraphs 13-16, supra, I find that the General Counsel has not
 established by a preponderance of the evidence that Dixon asked the
 Union to file a grievance on her behalf.  Assuming, arguendo, that
 Dixon's request for "help" may be construed as a request to file a
 grievance, I do not find that the Union either failed or refused to file
 the grievance.  /28/ Cottle did not refuse to file a grievance but,
 rather, asked Dixon to return when she actually received a written
 letter of discharge.  Dixon did return but, after talking to Weaver,
 said she had to get more papers from home.  This time she did not return
 and, therefore, did not fully cooperate.  Weaver did not tell her there
 was nothing she could do.  On these facts, I find and conclude that
 Respondent did not fail or refuse to represent Dixon.  /29/ Therefore,
 Respondent did not breach its duty of fair representation and thereby
 violate Section 7116(b)(1) and (8) as alleged.
 
                           Ultimate Conclusions
 
    Having found that Respondent did not engage in any unfair labor
 practices by the actions and conduct described above, and therefore has
 not violated Section 7116(a)(1) and (8) as alleged in the Amended
 Consolidated Complaint, I recommend that the Authority issue the
 following:
 
                                   ORDER
 
    That the Complaints in Case Nos. 4-CO-20022 and 4-CO-30012 be, and
 they hereby are, DISMISSED.
 
                                       /s/ FRANCIS E. DOWD
                                       Administrative Law Judge
 
    Dated:  March 23, 1984
    Washington, D.C.
 
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) We find it unnecessary to, and do not, adopt the Judge's comments
 as to the comparative economic strength of Federal unions or the ability
 of their representatives.
 
    (2) See, for example, National Treasury Employees Union and National
 Treasury Employees Union Chapter 204, 18 FLRA No. 36 (1985);  National
 Treasury Employees Union and National Treasury Employees Union Chapter
 121, 16 FLRA 717 (1984), reversed sub nom. National Treasury Employees
 Union v. FLRA, No. 85-1053 (D.C. Cir. Sept. 2, 1986), petition for
 rehearing filed (October 17, 1986);  and National Treasury Employees
 Union, 10 FLRA 519 (1982), aff'd sub nom. National Treasury Employees
 Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983).
 
    (3) In a recent decision, American Federation of State, County, and
 Municipal Employees, Local 2477, AFL-CIO, 22 FLRA No. 85 (1986),
 petition for review filed sub nom. American Federation of State, County
 and Municipal Employees v. FLRA, No. 86-1450 (D.C. Cir. Aug. 12, 1986),
 the Authority adopted its Judge's finding that the union failed to
 comply with its duty of fair representation.  However, that case
 involved a union's admitted refusal to provide legal representation to
 an employee who had engaged in statutorily protected activity.
 
    (4) National Treasury Employees Union, 16 FLRA 717 at 733;  National
 Treasury Employees Union, 10 FLRA 519 at 533-4.
 
    (5) See National Treasury Employees Union v. FLRA, where the D.C.
 Circuit stated (721 F.2d at 1406):
 
          Section 7114(a)(1) . . . means exactly what it says.
       Furthermore, there is absolutely nothing in the legislative
       history or in any case law construing the Statute to support the
       Union position (interpreting section 7114(a)(1) to codify the duty
       of fair representation as it has developed in the private sector,
       and by interpreting 'fair representation' to be synonymous with
       'adequate representation.').
 
    (6) The General Counsel filed a Motion to Correct Transcript
 containing 103 proposed corrections.  The Respondent filed opposition to
 45 of the proposed corrections.  To the extent that the General
 Counsel's motion has been granted fully or partially, the transcript has
 been corrected accordingly.  To the extent that the motion has been
 denied, the transcript remains unchanged.  Counsel have been notified in
 writing of my rulings with respect to each of the proposed corrections.
 
    (7) If Cottle had said she could not do anything, I believe it is
 more likely she would have given a reason;  e.g., because you have a
 nonmeritorious case or because you are a probationary employee.
 
    (8) After Dixon filed an unfair labor practice charge on February 14,
 1983, Counsel for Respondent instructed the Union to file a grievance
 anyway and to request the VAMC to waive its untimeliness.  The VAMC
 denied the grievance as untimely on the ground that the current
 Agreement did not apply to probationary employees (See G.C. Exh. Nos. 16
 and 17).
 
    (9) Webster's Third New International Dictionary (1971) defines
 "arbitrary" as "depending upon choice or discretion . . . arising from
 unrestrained exercise of the will, caprice, or personal preference, . .
 . based upon random or convenient selection or choice rather than on
 reason on nature . . . (as) given to willful irrational choices and
 demands." Black's Law Dictionary (1979) defines "arbitrary" as "done
 capriciously or at pleasure;  without adequate determining principle;
 not founded in the nature of things;  nonrational;  not done or acting
 according to reason or judgment;  depending upon the will alone, . . . "
 In my opinion, a common thread running through the foregoing definitions
 is that an arbitrary act is a willful act and, therefore an intentional
 act.  I see nothing in these definitions to equate arbitrariness with
 negligence.
 
    (10) See the following language in Vaca (at p. 194):  "In a case such
 as this, when (the grievant) supplied the Union with medical evidence
 supporting his position, the Union might well have breached its duty had
 it ignored (his) complaint or had it processed the grievance in a
 perfunctory manner." Earlier (at p. 191) the Court used the word
 "arbitrarily" as a modifier when it stated as follows:  "Though we
 accept the proposition that a union may not arbitrarily ignore a
 meritorious grievance or process it in perfunctory fashion, we do not
 agree that the individual employee has an absolute right to have his
 grievance taken to arbitration regardless of the provisions of the
 applicable collective bargaining agreement." The same language was later
 repeated in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 568-59
 (1976) (which did not cite Lockridge), and in Electrical Workers v.
 Foust, 442 U.S. 42, 47 (1979).
 
    (11) Counsel for General Counsel relies on the Ruzicka and Dutrisac
 line of cases in arguing that gross negligence constitutes the type of
 "arbitrary" conduct needed to establish a breach of the duty of fair
 representation.  In her brief, counsel observed that the Dutrisac court
 acknowledged that fair representation suits would weaken the financial
 stability of unions, which might, in turn, impair their ability to
 function effectively.  Thus, the court stated:  "For this reason, we
 limit our holding that union negligence may breach the duty of fair
 representation of cases in which the individual interest at stake is
 strong and the union's failure to perform a ministerial act completely
 extinguishes the employee's right to pursue his claim."
 
    (12) Counsel for Respondent relies on the Lockridge and Hoffman line
 of cases in arguing for an "intentional misconduct" standard.
 
    (13) Griffin v. International Union, U.A.W., 469 F.2d 181, (4th Cir.
 1972);  Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th
 Cir. 1980);  Del Costello v. International Brotherhood of Teamsters, 510
 F. Supp. 716 (D. Md. 1981).
 
    (14) Ethier v. United States Postal Service, 590 F.2d 733 (8th Cir.)
 (union not liable when steward filed grievance one day too late due to
 misunderstanding of time requirement), cert. denied, 444 U.S. 826
 (1979);  Foust v. International Brotherhood of Electrical Workers, 572
 F.2d 710, 714-16 (10th Cir. 1978) (evidence would support jury finding
 that untimely filing of grievance was "arbitrary, unreasonable and a
 breach of duty." 572 F.2d at 716), reversed on other ground, 442 U.S. 42
 (1979);  Coe v. United Rubber, Cork, Linoleum and Plastic Workers of
 America, 571 F.2d 1349, 1350-51 (5th Cir. 1978) (careless or inadvertent
 misnumbering of employee's grievance by union, affording employer
 defense of untimeliness, held not "arbitrary");  Schum v. South Buffalo
 Railway Co., 496 F.2d 328 (2d Cir. 1974) (union breached duty of fair
 representation when, through "lack of diligence," it allowed time period
 for filing appeal to second step of grievance procedure to lapse);
 Baker v. Unit Parks Co., 487 F. Supp. 1313, 1315 (W.D. Okla. 1980)
 (union breached duty by its "total failure to act" after being apprised
 by employee of existence of grievance);  Ruggirello v. Ford Motor Co.,
 411 F. Supp. 758, 760-71 (E.D. Mich. 1976) (union breached duty when it
 never instituted formal grievance on employee's behalf, relying instead
 on informal adjustment methods, and grievance was ultimately rejected as
 being untimely).
 
    (15) NLRB General Counsel Memo No. 79-55, Labor Relations Yearbook --
 1979, at 341-342 (1979).
 
    (16) Id. at p. 2.
 
    (17) General Truck Drivers, Chauffeurs and Helpers Union, Local No.
 692, IBT (Great Western Unifreight System) and Marion Boyd Lee, 209 NLRB
 No. 52.  The current Board is also following the test that "something
 more than mere negligence" is required.  See Office and Professional
 Employees International Union, Local No. 2, AFL-CIO, 268 NLRB No. 207
 (Feb. 29, 1984).
 
    (18) Local 18, International Union of Operating Engineers, 144 FLRA
 1365 (1963).
 
    (19) Brough v. United Steelworkers of America, 437 F.2d 748.
 
    (20) For Authority decisions concerning Executive order 11491, see
 National Treasury Employees Union, Chapter 202, 1 FLRA No. 104, 1 FLRA
 910 (1979);  and Federal Aviation Science and Technological Assn. Div.,
 NAGE, 2 FLRA No. 103, 2 FLRA 802 (1982).
 
    (21) In Tidewater there was a brief discussion of negligence and
 perfunctoriness but the case really turned on the fact the union acted
 in bad faith in accord with its well-entrenched policy of not initiating
 grievances for nonunion members.  Absent such evidence of bad faith, it
 is a matter of speculation as to whether the Authority would have
 adopted the General Counsel's request to use the broad Ruzicka test.
 
    (22) Also misplaced is the General Counsel's reliance on Overseas
 Education Association, 11 FLRA No. 75, 11 FLRA 377 (1983), a case in
 which the Union refused to assist an employee, who was seeking
 information about a grievance, because of his nonmembership in the
 Union.  Because this case involved discriminatory conduct, and not
 negligence, it is inapposite.
 
    (23) But, see Journeyman Pipe Fitters Local 392 v. NLRB, 712 F.2d 225
 (6th Cir. 1983), a recent decision by the same Circuit Court which
 authored Ruzicka.  The Court found that a union which failed to maintain
 a list of job applicants as a means of referring employees through its
 exclusive hiring hall did not breach its duty of fair representation.
 The Court noted an absence of evidence of "hostility," "discriminatory
 motive," lack of "good faith," and concluded that, at worst, Sullivan
 (the business agent) exercised poor judgment.  The Court then said:
 "Negligence, poor judgment or ineptitude are insufficient, standing
 alone, to establish a breach of the duty of fair representation.  NLRB
 v. American Postal Workers, Union, 618 F.2d 1249, 1254 (8th Cir. 1980)."
 
    (24) Accordingly, I reject Respondent's argument, supra, that some
 significance should be placed in the fact that Section 7114(a)(1) does
 not use the word "arbitrary." Counsel cites no legislative history to
 support the contention that the phrase "without discrimination" in
 Section 7114(a)(1) was intended by Congress to narrow the Vaca standard
 in any way.  Moreover, Section 7114(a)(1) entitles a union which has
 been accorded exclusive recognition the right to act for all unit
 employees.  In Humphrey v. Moore, supra, 375 U.S. 335, 342, the Supreme
 Court noted that the duty of fair representation has its implied
 statutory basis in the union's role as "exclusive" bargaining agent with
 "exclusive power to represent all employees of a bargaining unit."
 
    (25) The Supreme Court has recognized that a union has such
 discretion.  See, for example, Vaca supra, at pp. 191-193.
 
    (26) Excluded from this category is union conduct or inaction
 resulting from gross or mere negligence, an honest mistake, ineptitude,
 poor judgment or carelessness.
 
    (27) Both VAMC and the Union demonstrated their ignorance of the
 applicable grievance procedure.  Thus, the suspension memo to Crawford
 (G.C. Exh. No. 8) erroneously instructed him that he had to file his
 grievance within 15 calendar days.  Actually the new Master Agreement
 then in effect provided a grievant with 30 days in which to file.  Thus,
 when Weaver received Doherty's May 26 memo she (or Crawford) still could
 timely file at Step One.  It's not clear from this record whether
 Weaver's decision not to refile at Step One was influenced by her
 unfamiliarity with the new contract which was not distributed until
 March (see G.C. Exh. No. 2 Attachment) or whether she may have been
 misled by the agency's erroneous instructions as to the 15-day filing
 period.
 
    (28) In view of this decision, I do not have to decide whether a
 Union may violate its duty of fair representation by refusing to file a
 grievance even though the Authority might later conclude that the
 grievance procedure is inapplicable because Congress did not intend
 grievance and arbitration procedures negotiated under the Statute to
 cover grievances concerning the termination of probationary employees.
 See U.S. Department of Labor, Labor-Management Relations Administration,
 Cleveland, Ohio, 13 FLRA No. 109 (Jan. 16, 1984) in which the Authority
 apparently acquiesced in the Circuit Court's decision in United States
 Department of Justice, Immigration and Naturalization Service, 709 F.2d
 724 (D.C. Cir. 1983).
 
    (29) Assuming, arguendo, that this record would support a factual
 finding that Respondent failed and refused to file a grievance for
 Dixon, I would nevertheless be unable, on this record, to impute to
 Respondent