24:0320(37)CO - NFFE and Henry M. Thompson -- 1986 FLRAdec CO



[ v24 p320 ]
24:0320(37)CO
The decision of the Authority follows:


 24 FLRA No. 37
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, WASHINGTON, D.C.
 Respondent
 
 and
 
 HENRY M. THOMPSON, AN INDIVIDUAL
 Charging Party
 
                                            Case No. 4-CO-20019
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 to the attached Decision of the Administrative Law Judge filed by the
 General Counsel and cross-exceptions filed by the Respondent.  The
 Respondent also filed an opposition to the General Counsel's exceptions.
  The complaint alleged that the Respondent, the National Federation of
 Federal Employees, Washington, D.C. (NFFE National), breached its duty
 of fair representation under 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 when it failed to represent
 the Charging Party, Henry M. Thompson, in a proceeding conducted by the
 Merit Systems Protection Board (MSPB).
 
    We conclude, for the reasons discussed below, that the Respondent did
 not violate section 7116(b)(1) and (8) and therefore did not commit an
 unfair labor practice.
 
    II.  Facts
 
    Thompson was employed by the U.S. Coast Guard in Miami Beach, Florida
 in the collective bargaining unit represented by Local 1485 of the
 National Federation of Federal Employees, an affiliate of NFFE National.
  Following Thompson's removal from employment on September 11, 1981, he
 wrote to NFFE National and requested representation at his MSPB appeals
 hearing on his discharge.  NFFE National replied that its policy was not
 to provide such representation from the National Office level, but that
 it would in his case ask his Local Union (Local 1485) and a National
 Representative located in Florida to provide him assistance.
 
    On October 4, 1981, Thompson received an order from MSPB setting his
 hearing for November 24.  Through Local 1485, Thompson sought assistance
 from National Representative Bob Brown.  Brown, who worked out of
 Orlando, Florida, met with Thompson in Miami in late October, agreed to
 assist him in his MSPB hearing, and told Thompson that he would contact
 him the next day.  Brown did not contact Thompson, and on November 5
 Thompson wrote Brown that the hearing was set for November 24.  Brown
 was not able to be present at that time and suggested through Local 1485
 that Thompson ask for a postponement of his hearing.  Thereafter, MSPB
 scheduled the hearing for December 16 in Miami.  Brown told Thompson
 that he would be available for the hearing on that day.
 
    The hearing was later rescheduled by MSPB for Atlanta, Georgia, on
 February 24, 1982.  Thompson notified Brown of this rescheduled date and
 location by phone.  During the conversation, Brown told Thompson that
 the National Representative in Atlanta was being transferred.  Thompson
 asked if Brown would be present at his hearing.  Brown stated that if he
 could not attend the Atlanta hearing, another representative would.
 Unable to reach Brown by phone on several occasions in January, Thompson
 sent a letter to Brown on February 3, indicating that the MSPB hearing
 was set for February 18 in Atlanta and requesting representation by a
 qualified union representative.  Thompson received no further assistance
 nor did he have any further contact with anyone from the Union before
 the MSPB hearing, at which Thompson appeared on his own behalf.  The
 parties stipulated that NFFE National's conduct in this matter was not
 motivated by malice.
 
    III.  The Judge's Findings
 
    The Judge found that the case presented three issues:  (1) may NFFE
 National be held responsible for a violation of the duty to fairly
 represent an employee when it is not the recognized collective
 bargaining agent of the employee involved;  (2) if the National has the
 duty to represent the employee, does the duty extend to proceedings
 before the MSPB;  and (3) if the duty exists, what standard of conduct
 is to be used to ascertain whether that duty was breached.
 
    As to the first issue, the Judge found that since NFFE National was
 not the exclusive representative for the unit in which Thompson was
 employed, it had no duty under section 7114(a)(1) of the Statute
 notwithstanding the fact that Local 1485 is an affiliate of the
 National.  Second, the Judge found that, assuming that the National
 could be held responsible for the violations alleged in the complaint,
 it has no duty to represent employees in MSPB proceedings in any event
 and therefore could not have breached any duty to represent Thompson.
 The Judge stated that if the National agreed to volunteer, its services
 to Thompson, the matter was one of concern strictly between Thompson and
 the National and any question of the National's duty in that situation
 should not be resolved in this unfair labor practice forum.
 
    Finally, the Judge found that in view of his conclusions as to the
 first two issues, he did not have to reach the question of what standard
 of conduct a union would be charged with in fulfilling its duty to
 represent employees in the collective bargaining unit and whether the
 National failed to meet that duty.  He went on to state, however, that
 such a duty under the Statute exists and, but for his earlier
 conclusions, he would find that the National's failure to be present at
 the MSPB hearing, after having agreed to represent Thompson and no good
 cause having been found which would excuse or explain the National's
 failure to appear, would constitute arbitrary and capricious conduct in
 violation of the Statute.
 
    In view of his findings and conclusions, the Judge recommended that
 the Authority dismiss the complaint.
 
    IV.  Positions of the Parties
 
    The General Counsel excepted to the Judge's conclusions as to the
 first and second issues and to his conclusion that the National was
 blameless in the circumstances of this case.  The Respondent, NFFE
 National, agreed with the Judge's decision except as to his conclusion
 on the third issue that the National's failure to appear at the MSPB
 hearing was arbitrary and capricious.
 
    V.  Analysis
 
    As to the first issue, we find, contrary to the Judge, that as a
 result of its actions in this case NFFE National may be held responsible
 for the violations alleged in the complaint.  While Local 1485 was the
 certified representative of the unit in which Thompson was employed,
 NFFE National acted as an agent for Local 1485 throughout the
 proceedings in this matter, and therefore was fully responsible for the
 duties it assumed on behalf of Local 1485.  See, for example, National
 Treasury Employees Union and National Treasury Employees Union Chapter
 204, 18 FLRA No. 36 (the Authority found that the local chapter acted as
 the agent for the exclusive representative, and held that both the local
 chapter and the exclusive representative violated section 7114(a)(1) and
 thereby violated section 7116 (b)(1) and (8).
 
    With respect to the second issue, we agree with the Judge that the
 Respondent had no statutory duty to represent employees in MSPB
 proceedings.  Although a union has no statutory obligation to represent
 employees in MSPB proceedings, it is our view that if a union chooses to
 do so, it must do so without discrimination and without regard to union
 membership.  National Treasury Employees Union and National Treasury
 Employees Union Chapter 121, 16 FLRA 717 (1984), enforcement denied,
 NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986).  In this case, the parties
 stipulated that Respondent's conduct was not motivated by malice, and
 nothing in the record indicates that Respondent's conduct was
 discriminatory or was undertaken with regard to union membership.
 
    Finally, as to the third issue, we find that even if Respondent had a
 duty to represent Thompson in the MSPB proceeding, Respondent's conduct
 did not constitute a breach of its duty of fair representation under
 section 7114(a)(1) of the Statute.  In National Federation of Federal
 Employees, Local 1453, 23 FLRA No. 92 (1986), the Authority recently
 addressed in detail for the first time the nature of an exclusive
 representative's duty of fair representation where union membership is
 not a factor.  The Authority set forth the following standard:
 
          (W)here 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.
 
 The Authority concluded in NFFE, Local 1453 that under the standard
 described the Respondent did not violate section 7114(a)(1) of the
 Statute and, therefore, did not violate section 7116(b)(1) and (8) as
 alleged in the complaint.
 
    Similarly, we find that the Union's actions in this case do not meet
 the standards set forth in NFFE, Local 1453 for finding an unfair labor
 practice.  While the General Counsel argues that the Union's failure to
 appear resulted from "internal Union disorganization" and "lax
 administration," the General Counsel has neither alleged nor established
 that the Respondent deliberately and unjustifiably treated Thompson
 differently from other bargaining unit employees.  The record does not
 establish that the Respondent acted arbitrarily or in bad faith.
 Rather, we find that the Union's failure to appear at the MSPB hearing
 constituted nothing more than mere negligence or miscommunication.
 
    VI.  Conclusion
 
    Accordingly, the Authority finds that the Respondent did not violate
 section 7114(a)(1) of the Statute, and consequently did not violate
 section 7116(b)(1) and (8) of the Statute.  Therefore, we shall dismiss
 the complaint.
 
                                   ORDER
 
    The complaint in Case No. 4-CO-20019 is dismissed.
 
    Issued, Washington, D.C. December 5, 1986.
 
                                       Jerry L. calhoun, Chairman
                                       Henry B. Frazier, III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 4-CO-20019
 
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES, 
    WASHINGTON, D.C.
         Respondent
 
                                    and
 
    HENRY M. THOMPSON, AN INDIVIDUAL
         Charging Party
 
    Catherine Waelder, Esq.
    For the Respondent
 
    Linda J. Norwood, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
 et seq.
 
    Upon an unfair labor practice charge filed by Henry M. Thompson, an
 individual, the General Counsel of the Authority, by the Regional
 Director for Region IV, issued a Complaint and Notice of Hearing
 alleging that National Federation of Federal Employees, Washington, D.C.
 (herein sometimes referred to as Respondent, NFFE or the National)
 violated section 7116(a)(1) and (8) of the Statute when it failed to
 represent Mr. Thompson in a proceeding conducted by the Merit Systems
 Protection Board (herein MSPB).
 
    A hearing on the Complaint was conducted at which time Respondent and
 the General Counsel were represented by counsel and afforded full
 opportunity to adduce evidence, call, examine and cross-examine
 witnesses and argue orally.  Briefs were filed by counsel and have been
 duly considered.  /1/
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein Local 1485 of the National Federation of
 Federal Employees (herein Local 1485) has been the exclusive collective
 bargaining representative of various employees of the U.S. Coast Guard
 including employees located in Miami Beach, Florida.  Local 1485 is
 affiliated with the National Federal of Federal Employees, Washington,
 D.C.  /2/
 
    Henry M. Thompson was employed by the U.S. Coast Guard in Miami
 Beach, Florida in the collective bargaining unit represented by Local
 1485 for approximately 6 years.  /3/ In June 1981 he received from the
 Coast Guard a notice of proposed removal.  The Coast Guard charged
 Thompson with unauthorized absences, falsification of his attendance
 record and attempting to deceive, through false written and oral
 statements.  Thereafter, Thompson, a member of Local 1485 throughout his
 employment with the Coast Guard, requested Local 1485 President Evan
 Miller to accompany him when Thompson made his oral reply to the prposed
 action before the agency.  Thompson and Evans appeared for the oral
 reply and during the meeting Miller made representations on Thompson's
 behalf.  However, the charges were upheld by the 7th Coast Guard
 District Commander and on September 4, 1981, Thompson was removed from
 employment.
 
    On September 11, 1981, Thompson wrote to James M. Peirce, President
 of the National Union, related the background of his discharge and
 requested that NFFE represent him at his MSPB appeals hearing on the
 discharge.  Thompson asked that a NFFE lawyer or qualified person
 familiar with removal appeals be supplied for this purpose.  By letter
 dated September 22, President Peirce responded to Thompson and informed
 him that assistance would be provided by the National.  The letter
 stated, in relevant part:
 
          "Ordinarily, all requests for assistance should be communicated
       through the Local President in writing.  Since this is such a
       short time frame here, however, we will not require the strict
       adherence to this policy.  The NFFE Executive Council has
       implemented criteria for making the determination when someone
       from the National Office will personally handle a pending matter.
       This policy is necessary due to our very limited resources and the
       size of the workload routinely received at the National Office
       regarding matters other than representation which affect our
       Locals nationwide.
 
          "Your appeal is indeed important to us.  However, it does not
       fall within the criteria outlined by the Executive Council to
       warrant National Office personnel exclusively handling the appeal,
       as it does not affect your Local nor NFFE as a whole.  This does
       not in any way mean that we will not be involved.
 
          "I recommend that both you and your Local President speak with
       the NFFE National Representative who services your Local.  His
       name is Bob Brown and he is quite knowledgeable in handling cases
       of this type.  We will notify Mr. Brown that your case will be
       pending and that his advice and expertise should be made available
       to you.
 
          "Staff Attorney Edwin Harvey has spoken with Local President
       Evans Miller regarding your situation.  He has advised Evans that
       you should submit an appeal to the Merit Systems Protection Board
       to preserve your right to appeal the separation action since you
       possess all the information which is necessary to do so and since
       you indicated to Evans your intent to file the appeal.  Should you
       require advice relating to the appeal prior to your being
       contacted by Mr. Brown, please talk with Mr. Miller and have him
       contact us at his earliest opportunity."
 
    On October 4, 1981, Thompson received an order from the MSPB which
 indicated that his hearing was set for November 24.  Thompson thereupon
 related this information to Local 1485 President Miller and Miller
 called National Representative, Bob Brown /4/ and informed him that
 while Thompson was not interested in having the Local Union represent
 him before the MSPB, he wished to meet with Brown.  Brown was scheduled
 to be in the Miami area in late October and agreed to meet with Thompson
 at that time.  Miller related the message to Thompson.
 
    Thompson met with Brown on October 29 or 30, 1981, in a Miami motel.
 /5/ During the approximately 45 minute meeting, Thompson explained the
 background of his situation to Brown and produced various documents
 related to his case and asked Brown to help him.  /6/ Brown reviewed the
 matter with Thompson and indicated that he had experience in handling
 this type of case and agreed to assist Thompson in his hearing before
 the MSPB.  /7/ Brown told Thompson he would contact him on the following
 day and meet to discuss the case further.
 
    Brown did not contact Thompson and on November 5, 1981, Thompson
 wrote to Brown.  His letter, a copy of which was sent to Miller, stated:
 
          "The appeal hearing on my removal is set for November 24, 1981,
       at 9 A.M.  I request that I be represented at this hearing by a
       Union attorney or a qualified and competent Union representative
       that is knowledgeable about the rules, regulations and procedures
       concerning a removal appeal hearing.  A place has not been set for
       this hearing as yet.  Please reply as soon as possible as time is
       of the essence."
 
    Thereafter, Thompson heard from Miller and was told that Brown was
 not able to be present at the November 24 MSPB hearing and Brown had
 suggested that Thompson ask the MSPB for a postponement of the hearing.
 Thompson contacted MSPB on November 10 and requested a ten-day
 postponement.  Subsequently the Coast Guard also sought a postponement
 and by Order dated December 4, 1981, the MSPB set the matter to be heard
 on December 16 in Miami, Florida.  Thompson called Brown and informed
 him of the December 16 hearing date and Brown replied that he would be
 available for the hearing on that day.
 
    Sometime before December 16, 1981, Thompson received notification
 from MSPB that the December 16 hearing date would be cancelled due to
 lack of funds.  In late December or early January 1982, Thompson
 received word from MSPB that his hearing would be held in Atlanta,
 Georgia on February 24, 1982.  Thompson called Brown and notified him of
 the new date and that the MSPB ordered the hearing for Atlanta.  /8/
 During the conversation Brown told Thompson that the Atlanta
 representative was being transferred to a better position in California.
  Thompson voiced concern as to how that might affect his case and asked
 if Brown would be present at his hearing.  Brown replied that if he
 could not be there, another representative would.  Thompson asked if the
 other person would be a qualified representative.  Brown responded:
 "Certainly."
 
    According to Thompson, during the month of January he attempted to
 reach Brown by telephone approximately five times but Brown's telephone
 went unanswered.  In early February 1982, Miller called Thompson with
 regard to Thompson paying his Union dues.  During the conversation
 Thompson indicated that he was having difficulties contacting Brown.
 Miller suggested Thompson contact Brown by mail.  On February 3,
 Thompson sent Brown a letter by certified mail which indicated that his
 MSPB hearing set for February 18, 1982 at 8:30 a.m. in the MSPB hearing
 room in Atlanta, Georgia.  As he did in his prior letter of November 4,
 1981, supra, Thompson requested that he " . . . be represented . . . by
 a Union attorney or qualified and competent Union representative that is
 knowledgeable about the rules, regulations and procedures at a removal
 appeal hearing." Thompson again sought a reply "as soon as possible"
 noting time was of the essence.
 
    Brown received the letter on February 5, 1982, or shortly thereafter.
  However, according to Brown, whose testimony on this matter I do not
 credit, he had a telephone conversation with Thompson on February 4,
 1982, and at that time indicated that a Union representative in Atlanta
 was on "standby" and, if she had no other hearing or election
 commitments, she would meet with Thompson prior to the hearing.
 Thompson was to let Brown know where he would be staying and Brown would
 contact the Atlanta representative as to where she should contact
 Thompson.  However, according to Brown, Thompson never again contacted
 him and, in any event, unknown to Brown, the Atlanta representative was
 transferred to California before February 18.
 
    Thompson received no further assitance nor did he have any contact
 with anyone from the Union prior to his MSPB hearing in Atlanta on
 February 18, 1982, at which he appeared on his own behalf.  /9/ By
 decision of April 26, 1982, and final order of March 22, 1983, the MSPB
 affirmed Thompson's removal action.
 
                        Discussions and Conclusions
 
    Essentially three issues are presented in this case:  (1) May the
 National Union be held responsible for a violation of the duty to fairly
 represent an employee when it is not the recognized collective
 bargaining agent of the employee involved;  (2) If the National has the
 duty to represent the employee, does the duty extend to proceedings
 before the MSPB and;  (3) If the duty exists, what standard of conduct
 is to be used to ascertain whether that duty was breached.
 
    The National Union as Respondent
 
    Section 7114(a)(1) of the Statute provides:
 
          "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."
 
    It is clear from the language of section 7114(a) (1) that the Statute
 grants exclusive representation rights to the exclusive representative.
 In my view it follows, therefore, that it is only at the level of
 exclusive representation that the right to represent employees exists.
 Cf. Department of Health and Human Services, Social Security
 Administration, 6 FLRA 202 (1981), at 204 where the Authority stated:
 ". . . the mutual obligation to bargain as articulated in the Statute
 exists only at the level of exclusive recognition with respect to
 conditions of employment which affect any employees within the unit . .
 ." (Emphasis added).  Section 7114(a)(1) also imposes on the exclusive
 representative to duty to represent the interests of employees, but
 limits that duty to employees in the collective bargaining unit it
 represents.  Therefore, where a union is not the exclusive collective
 bargaining representative, it has neither the Statutory right to
 represent the employees in that unit nor the obligation or duty to
 represent those employees.  Thus, the duty to represent employees is
 co-extensive with a union's right to represent those employees.  Cf.
 Humphrey v. Moore, 375 U.S. 335, 342 (1964), where the Supreme Court,
 when considering a union's rights and obligations which arose under
 Section 301 of the National Labor Relations Act, stated:  "The undoubted
 broad authority of the union as exclusive bargaining agent in the
 negotiation and administration of a collective bargaining contracted is
 accompanied by a responsibility of equal scope, the responsibility and
 duty of fair representation . . ." (Emphasis added).
 
    Notwithstanding that Local 1485 is an affiliate of the National
 Union, forwards a portion of members' dues to the National and receives
 assistance from a National representative in various matters, Local 1485
 is the exclusive bargaining representative for the unit in which
 Thompson was employed.  The collective bargaining agreement covering
 that unit is between Local 1485 and the Coast Guard.  It is only Local
 1485, and not the National, which has the right to represent employees
 in the unit in matters which arise out of the employment relationship by
 virtue of its status as the exclusive representative.  Similarly, it is
 only Local 1485, and not the National, which has a correlative duty to
 represent unit employees in such matters.
 
    The National became involved in Thompson's case when it, upon request
 by Thompson, volunteered the services of National Representative Brown
 to make available his "advice and expertise" and Brown inidcated he
 would assist Thompson during the MSPB hearing.  However, any Statutory
 duty to represent owed to Thompson was owed by Local 1485 and not the
 National.  By volunteering Brown's services the National may have become
 the agent of the Local for the purpose of representing Thompson at the
 MSPB hearing, but this did not make the National Thompson's Statutory
 representative.  That right and duty remained with the Local, the
 exclusive representative.
 
    Accordingly, since the Complaint herein names only the National as
 the Respondent and the National was neither the exclusive representative
 nor a party to the collective bargaining agreement, I conclude that the
 National was not a proper respondent under the Statue and the Complaint
 herein must be dismissed.  See Baker et al, v. Newspaper and Graphic
 Communications Union, Local 6, et al., 628 F. 2d 156, 165 (D.C. Cir.
 1980).
 
    The Duty to Represent at MSPB Proceedings
 
    Assuming arguendo that the National Union can be held responsible for
 the violations alleged in the Complaint, I would nevertheless conclude
 that no breach of any duty to represent Thompson occurred herein.  As
 stated above, the duty to represent is coextensive with the right to
 represent and, in my view, a union has no obligation to represent an
 employee in matters wherein the union has no right to represent the
 employee.  Thus, if a union does not have a specific statutory or
 contractual right to pursue a matter, it should not have any statutory
 obligation to act.  Such an approach would give a balanced meaning to
 the Supreme Court's usage of "equal scope" in Humphrey v. Moore, supra,
 when it discussed a union's representative responsibility vis a vis its
 authority in such matters.  Accordingly, where no right to pursue a
 matter in a particular forum exists, a union should not be found to have
 violated the Statute by its refusal to act, failure to act, or even by
 acting discriminatorily or improperly.  The situation would simply be
 outside the purview of Statutory considerations.  /10/
 
    In the case herein the Union has no independent right under the
 Statute or by contract to appear before the MSPB to argue or present a
 case.  /11/ The right to have his removal action brought before the MSPB
 was Thompson's and arose separate and apart from the rights granted to
 the Union by the Statute or negotiated into the collective bargaining
 agreement.  /12/ Accordingly, I would conclude that since access to the
 MSPB was Thompson's right and Thompson's right alone, the Union cannot
 be held to have violated the Statute by its actions or lack thereof in
 connection therewith.  If the Union agreed to volunteer its services to
 Thompson the matter was one of concern strictly between Thompson and the
 Union and any question of the Union's duty in that situation should not
 be resolved in this forum.
 
    In view of my conclusions herein I need not reach the question of
 what standard of conduct a union should be charged with in fulfilling
 its duty to represent employees in the collective bargaining unit and
 whether the Union herein failed to meet that duty.  /13/ However, it
 would appear that such a duty under the Statute exists and, but for my
 conclusions, supra, I would find that the Union's failure to be present
 at the MSPB hearing, after having agreed to represent Thompson and no
 good cause having been found which would excuse or explain the Union's
 failure to appear at the hearing, would constitute arbitrary and
 capricious conduct violative of the Statute.
 
    Nevertheless, I would reject Counsel for the General Counsel's
 request that, as part of the remedy, the Union should pay Thompson for
 expenses he incurred representing himself.  Since there is no showing
 that Thompson incurred any expenses additional to those incurred in
 connection with being present at the hearing, which hearing he would
 have attended in any event, I conclude such remedy would be punative and
 is therefore impermissible.  IBEW v. Foust, 99 U.S. 2121 (1979).
 
    Accordingly, in view of the entire foregoing, I recommend the
 Authority issue the following:
 
                                   ORDER
 
    It is hereby ordered that the Complaint in Case No. 4-CO-20019 be,
 and it hereby is, dismissed.
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  July 5, 1984
    Washington, D.C.
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Counsel for Respondent's unopposed Motion to Correct Transcript
 regarding minor matters is hereby granted.
 
    (2) As an affiliate, a portion of Local 1485 members' dues is
 forwarded to the National.
 
    (3) The unit is described in a collective bargaining agreement
 between Local 1485 and the Coast Guard which became effective in August
 1977.
 
    (4) Brown works out of Orlando, Florida and is employed by the
 National Union.  His official title is Division Director and he is
 responsible for the supervision of three National Representatives in the
 Civil Service Regions within his jurisdiction, as well as personally
 serving 22 local unions in Florida, including Local 1485 and one local
 in Alabama.  Brown's duties include giving assistance and aid to local
 unions in negotiations and other matters as requested.
 
    (5) Brown called Miller and had him notify Thompson of the time and
 place of the meeting.
 
    (6) In this and other testimony herein, where there is a variance in
 the testimony, for the most part I have relied on Thompson's testimony
 over that of Brown and Miller.  I found Thompson's testimony to be
 generally more plausible and more specific, direct, consistent and
 responsive to the questions asked.
 
    (7) Brown had never appeared at an MSPB hearing but had experience in
 other types of hearings.
 
    (8) This conversation is denied by Brown.
 
    (9) The parties stipulated that Repsondent's conduct in this matter
 was not motivated by malice.
 
    (10) This approach would comport with that taken by Judge Burton S.
 Sternburg in American Federation of Government Employees, AFL-CIO,
 3-CO-20003, OALJ-82-131 (Septemb