24:0352(39)CO - IAM Local 39 and Roy G. Evans -- 1986 FLRAdec CO



[ v24 p352 ]
24:0352(39)CO
The decision of the Authority follows:


                 
 
 24 FLRA No. 39
 
 INTERNATIONAL ASSOCIATION 
 OF MACHINISTS AND AEROSPACE 
 WORKERS, LOCAL 39, AFL-CIO
 Respondent
 
 and
 
 ROY G. EVANS, AN INDIVIDUAL
 Charging Party
 
                                            Case No. 4-CO-20034
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that it be ordered to cease and desist from those practices and take
 certain affirmative action.  The Respondent and the General Counsel
 filed exceptions to the Judge's Decisions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision, the exceptions to that Decision, and the entire
 record, the Authority hereby adopts the Judge's findings, conclusions
 and recommended Order as modified.
 
    In National Federation of Federal Employees, Local 1453, 23 FLRA No.
 92 (1986), the Authority addressed 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 (slip op. at 6):
 
          (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.
 
    Though the Judge made his Decision prior to the issuance of our
 recent case, the basic standards he applied in making his final
 determination are the same.  Applying our standards to the circumstances
 of this case, we find that the General Counsel has established that the
 Union's actions viloated the Statute.
 
    In agreement with the Judge, we conclude that the Union's actions
 misled Evans into thinking that the Union was going to file the
 grievance, and Evans' reliance on the Union caused him to lose the right
 to file a timely grievance.  We agree with the Judge that the Union's
 actions amounted to more than mere negligence and conclude that the
 Respondent deliberately and unjustifiably failed to file a grievance on
 behalf of Evans.  We further conclude, in the absence of a showing to
 the contrary, that the Union treated Evans differently from other unit
 employees by failing to file his grievance.  By this conduct, the Union
 breached its duty of fair representation as required by section
 7114(a)(1) of the Statute and thereby violated section 7116(b)(1) and
 (8) of the Statute.  Compare National Federation of Federal Employees,
 Washington, D.C., 24 FLRA No. 37 (1986).  That case involved an employee
 who requested his union to provide him with a representative at a
 hearing before the Merit Systems Protection Board (MSPB).  While the
 union in that case had initially agreed to provide representation to the
 employee, the union failed to appear at the hearing, which had been
 rescheduled several times.  Based on the record in that case, we found
 that the union's failure to appear at the hearing constituted nothing
 more than mere negligence or miscommunication.  Moreover, unlike here,
 the union's failure to represent the employee in that case did not
 extinguish the employee's rights.
 
    We also agree with the Judge that the circumstances of this case
 weigh in favor of the remedy he recommended.  See Griffin v. UAW, 469
 F.2d 181 (4th Cir. 1972);  Dutrisac v. Caterpillar Tractor Co., 749 F.2d
 1270 (9th Cir. 1983).  We have modified the Order to conform to our
 findings in this case.  We have also modified the Notice to conform with
 like notices where similar violations have been found.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the International Association of Machinists and Aerospace Workers, Local
 39, AFL-CIO, shall:
 
    1.  Cease and desist from:
 
          (a) Failing to fairly represent Roy G. Evans, or any other unit
       employee, as required by section 7114(a)(1) of the Federal Service
       Labor-Management Relations Statute.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing any employee in the exercise of their
       rights by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Fairly represent all employees in its unit of exclusive
       recognition, as required by section 7114(a)(1) of the Statute.
 
          (b) Seek permission from the Naval Air Rework Facility,
       Norfolk, Virginia, to file a late grievance concerning the May 27,
       1982 suspension of Roy G. Evans, and pursue the grievance with
       good faith and all due diligence.
 
          (c) If the Naval Air Rework Facility, Norfolk, Virginia,
       refuses permission to file a late grievance concerning the May 27,
       1982 suspension of Roy G. Evans, pay Evans the amount of earning
       lost during the period of his suspension (June 7, 1982 through
       June 11, 1982).
 
          (d) Post at its business offices and its normal meeting places,
       including all places where notices to members, and to employees of
       the Naval Air Rework Facility, Norfolk, Virginia, are customarily
       posted, copies of the attached Notice on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the President of International
       Association of Machinists and Aerospace Workers, Local 39, AFL-CIO
       and shall be posted and maintained for 60 consecutive days
       thereafter, in conspicuous places, including bulletin boards and
       all other places where Union notices to members and unit employees
       are customarily posted.  Reasonable steps shall be taken to ensure
       that such Notices are not altered, defaced, or covered by any
       other material.
 
          (e) Submit appropriate signed copies of such Notice to the
       Commander of the Naval Air Rework Facility, Norfolk, Virginia, for
       posting in conspicuous places where unit employees are located,
       where they should be maintained for a period of 60 consecutive
       days from the date of the posting.
 
          (f) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IV, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply.
 
    Issued, Washington, D.C. December 5, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier, III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
                 NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
 
    We will not fail to fairly represent Roy G. Evans, or any other unit
 employee, as requried by section 7114(a)(1) of the Federal Service
 Labor-Management Relations Statute.
 
    We will not in any like or related manner interfere with, restrain,
 or coerce any employee in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    We will fairly represent all employees in our unit of exclusive
 recognition as required by section 7114 (a)(1) of the Federal Service
 Labor-Management Relations Statute.
 
    We will seek permission from the Naval Air Rework Facility, Norfolk,
 Virginia, to file a late grievance concerning the May 27, 1982
 suspension of Roy G. Evans, and pursue the grievance with good faith and
 all due diligence.
 
    We will, if the Naval Air Rework Facility, Norfolk, Virginia, refuses
 permission to file a late grievance concerning the May 27, 1982
 suspension of Roy G. Evans, pay Evans the amount of earnings lost during
 the perod of his suspension (June 7, 1982 through June 11, 1982).
 
                           (Labor Organization)
 
    Dated:  . . .
 
    By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IV, Federal Labor Relations Authority, whose address is
 :  1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367, and
 whose telephone number is:  (404) 347-2324.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 4-CO-20034
 
 INTERNATIONAL ASSOCIATION OF MACHINISTS AND 
 AEROSPACE WORKERS LOCAL 39, AFL-CIO
    Respondent
 
                                    and
 
    ROY G. EVANS, AN INDIVIDUAL
    Charging Party
 
    Barbara Liggett, Esq.
    For the General Counsel, FLRA
 
    Coet Combs
    For the Respondent
 
    Before:  SAMUEL A. CHAITOVITZ
    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, and the Rules and Regulations of the Federal
 Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et
 seq.
 
    The Charge in Case No. 4-CO-20034 was filed on August 26, 1982, by
 Roy G. Evans, an individual, against the International Association of
 Machinists and Aerospace Workers, Local 39, AFL-CIO (hereinafter
 referred to as the Union or Respondent).  A First Amended Charge was
 filed on November 18, 1982.  On December 10, 1982, the General Counsel
 of the FLRA, by the Director of Region IV, issued a Complaint and Notice
 of Hearing.
 
    The Complaint alleged that Respondent violated Sections 7116(b)(1)
 and (8) of the Statute by failing to fairly represent Evans in a
 grievance procedure.  An Amended Complaint issued August 4, 1983, added
 that Respondent acted arbitrarily, capriciously and in a grossly
 negligent manner.  Respondent filed a Motion for Summary Judgment on
 January 31, 1983, but the Chief Administrative Law Judge of the
 Authority denied the motion on March 10, 1983.  Respondent filed an
 Answer denying that it had violated the Statute.
 
    A hearing was held before the undersigned, in Norfolk, Virginia at
 which Respondent and the General Counsel of the FLRA appeared, adduced
 evidence, and examined and cross-examined witnesses.  Parties were given
 an opportunity to argue orally and briefs were filed by Respondent and
 the General Counsel of the FLRA which have been carefully considered.
 Based upon the record, my observation of the witnesses and their
 demeanor and from my evaluation of the evidence, I make the following:
 
                             Findings of Facts
 
    The Union is the exclusive collective bargaining representative of a
 unit of employees at the Naval Air Rework Facility, Norfolk, Virginia
 (hereinafter called NARF).  The collective bargaining agreement between
 the Union and NARF, which became effective on or about June 29, 1978,
 provides for a grievance procedure in Article XXV.  Evans, a member of
 the bargaining unit represented by the Union, worked as a machinists
 from April 20, 1981, until April 5, 1983, when he was removed from
 employment.
 
    On April 6, 1982, NARF issued a notice of proposed suspension to
 Evans for unexcused tardiness, sleeping on duty, and delay in carrying
 out instructions of a supervisor.  The Union's Chief Steward, Johnnie
 Rascoe, prepared a memorandum dated April 21, 1982, to the Power Plant
 Division Director, Emory Dixon, which denied these charges and requested
 a meeting.  The memorandum also requested Rascoe's attendance at all
 meetings concerning the proposed suspension.
 
    NARF granted a hearing on the proposed suspension, to be held on
 April 23, 1982.  The afternoon or morning prior to the hearing, another
 Union steward, Mr. Scott, informed Evans that Rascoe was on leave and
 that he (Scott) would represent him at the hearing.  When Scott was
 unable to present the facts correctly at the hearing, Evans was granted
 permission to represent himself orally and with written statements and
 documents.
 
    By letter dated May 27, 1982, NARF informed Evans that it reduced the
 suspension from eight to five days and sustained the charges of
 unexcused tardiness and delay in carrying out instructions of a
 supervisor.  An attachment to the letter stated that Union members have
 thirty calendar days after receipt of the letter to file a grievance.
 /1/ Evans received the letter on June 4, 1982, the Friday before the
 Monday when his suspension was to begin;  thus, the deadline for filing
 the grievance was July 4, 1982.
 
    Upon receipt of the notice of the decision to suspend, Evans informed
 Rascoe that he wanted to appeal.  Rascoe replied that they would take
 care of the matter after the suspension.  Evans served his suspension
 from June 7 through June 11, 1982, and was out sick from June 14 through
 June 18, 1982.  On or about June 21 or 22, 1982, Evans saw Rascoe
 talking with another employee and asked him to stop at his work area to
 discuss the grievance.  He made this request on several subsequent
 occasions, but Rascoe never stopped by.  Evans later spoke with his
 Union steward, Lloyd Pickett, and asked him to make sure that the appeal
 had been filed, and if not, to file it.  Pickett replied that he would
 check.
 
    On or about July 6 or 7, 1982, Evans saw Rascoe during a break and
 asked him about the appeal.  Rascoe said "I have been meaning to talk to
 you on that," and asked about the letter of suspension.  Rascoe counted
 the thirty-two days that had passed and acknowledged that it was too
 late to file a grievance.  Evans was limited in his ability to contact
 Rascoe because Evans could not take off from work to find him, and
 because Rascoe worked unusual hours because of his Union activities.
 /2/
 
    NARF informed Evans in a notice of decision on proposed removal dated
 March 30, 1983, that he would be removed from employment, effective
 April 5, 1983.  Evans' previous disciplinary record, including the
 suspension presently at issue, was considered in this decision.
 
                        Discussion and Conclusions
 
    The record establishes that although Evans repeatedly sought
 assistance from the Union in appealing his suspension, the Union failed
 to file a timely formal grievance on his behalf.  In addition, the
 Union's assurances that it would handle the matter misled Evans so that
 he could reasonably conclude that the Union would file a grievance on
 his behalf.  The General Counsel argues that illegal motivation or other
 intentional misconduct is not necessary to establish a breach of the
 duty of fair representation.  I disagree with this contention, but
 conclude that Respondent did breach its duty of fair representation, in
 violation of Sections 7116(b)(1) and (8) of the Statute.
 
    In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court established
 that a union breaches its duty of fair representation when its conduct
 towards a member of its collective bargaining unit is arbitrary,
 discriminatory or in bad faith.  In declining to broaden the meaning of
 this standard, I adopt Judge Dowd's reasoning in National Federation of
 Federal Employees, Local 1453, OALJ-83-52, Case No. 4-CO-20022, March
 23, 1984, pending before the authority (hereinafter NFFE).  In NFFE,
 Judge Dowd found that the Union had not failed in its duty to fairly
 represent an employee because there was no evidence that the union
 "deliberately and unjusitifably" failed or refused to refile a
 grievance.
 
    Absent the necessity of such a showing of intentional misconduct, the
 burden on labor organizations would be unreasonable.  Union officials
 are not professional advocates and should not be held to the same
 standard as attorneys.  See Tidewater Virginia Federal Employeees Metal
 Trade Council/International Association of Machinists, Local No. 44, 8
 FLRA 217, 231 (1982);  American Federation of Government Employees,
 AFL-CIO, Local 987, 3 FLRA 715, 721 (1980).  In the public sector, in
 particular, where unions cannot compel the payment of dues, a broad
 standard with respect to the duty of fair representation would imperil
 the very existence of labor organizations and ultimately defeat the
 purposes and policies of the Statute.  Employees dissatisfied with the
 quality of a union's representation can express this dissatisfaction by
 voting for new union officers or by decertifying the union.  In
 addition, federal employees have the right to present a grievance on
 their own behalf under Section 7121(b)(3)(B) of the Statute.  See NFFE,
 supra.
 
    In the instant case, however, Respondent's unexplained failure to
 file Roy G. Evans' grievance creates an inference of intentional
 misconduct.  Evans approached Chief Steward Rascoe, immediately after
 receiving the letter of suspension requesting that a grievance be filed
 and Rascoe reassured Evans but postponed further discussion until after
 the suspension.  After returning to work more than two weeks later,
 Evans asked Rascoe on several occasions to see him at his work station,
 so they could discuss the grievance.  Rascoe never contacted Evans.  In
 addition, Evans asked another Union steward to make sure the grievance
 had been filed and, if not, to file it.  That steward too did not
 re-contact Evans.  Finally, approximately two weeks after returning to
 work and continuously seeking Union assistance, Evans confronted Rascoe,
 who acknowledged that it was then too late to file the grievance.
 
    Under these circumstances, absent evidence to rebut the clear
 inference of intentional misconduct, I must conclude that Respondent's
 agents intentionally chose to ignore Evans' requests.  The record fails
 to establish that ignorance of the applicable grievance procedure
 explains the Union's idleness, as it did in NFFE, supra p. 4, at 24, fn.
 22.  /3/ In view of Evans' repeated attempts at securing assistance over
 approximately a four-week period, Rascoe is presumed to have known that
 the time limit for filing the grievance was approaching, even if he did
 not remember the exact date.  Yet, Rascoe failed to inquire about the
 date until it was too late, even though Evans, on a number of occasions,
 sought to talk to Rascoe about the grievance.  Further, I reject the
 contention that Rascoe simply forgot to stop by Evans' work area after
 each attempt by Evans at consultation.  After returning to work, Evans
 approached Rascoe several times during a two-week period.  Where it is
 implausible, as here, that the Union inadvertently mishandled a
 grievance, intentional misconduct should be imputed to the Union.  /4/
 
    In light of the foregoing, I conclude the Union breached its duty of
 fair representation under Section 7114(a)(1) of the Statute by handling
 Evans' grievance in an arbitrary and discriminatory manner and,
 accordingly, it violated Sections 7116(b)(1) and (8) of the Statute.
 
                                  Remedy
 
    The General Counsel urges that Respondent should be ordered to cease
 and desist its illegal activities, and to take affirmative action to
 make Evans whole for wages lost during his period of suspension.  The
 governing principle under Vaca v. Sipes, 386 U.S. at 197, is to
 apportion liability between the employer and the union according to the
 damages caused by the fault of each.  Unlike the court proceeding in
 Vaca, this proceeding does not resolve Evans' charges against NARF.
 Since NARF'S liability is uncertain due to the Union's mishandling of
 the girevance, the uncertainity must be resolved against the Union.
 Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 348 (5th Cir. 1980);
 see also Service Employees International Union, Local No. 579 AFL-CIO,
 (Beverly Manor Convalescent Center), 229 NLRB 692 (1977);  Contra
 Service Employees International Union, Local 556, AFL-CIO OALJ-83-59,
 Case No. 8-CO-37 and 38, February 28, 1983, pending before the
 Authority.  A party should not benefit from its own misconduct to the
 detriment of another.  Accordingly, it is recommended that the Authority
 order Respondent to seek permission from NARF to file a late grievance
 and pursue the grievance in good faith and with all due diligence;  /5/
 however, if NARF refuses to grant such permission, it is recommended
 that the Authority order Respondent to make Evans whole for the wages
 lost during his period of suspension.
 
    Based on the foregoing, it is recommended that the Authority adopt
 the following:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Statute, it is ordered that the
 International Association of Machinists and Aeorspace Workers, Local 39,
 AFL-CIO:
 
    1.  Cease and desist from:
 
          (a) Affording on an arbitrary basis differing standards of
       employee representation to employees in units of exclusive
       representation.
 
          (b) Interfering with, restraining or coercing any employee in
       the exercise by the employee of any right under the Federal
       Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to carry out the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Represent all bargaining unit employees on an equal basis
       and with the same standard of representation.
 
          (b) Seek permission from the Naval Air Rework Facility,
       Norfolk, Virginia (NARF), to file a late grievance concerning the
       May 27, 1982 suspension of Roy G. Evans and pursue the grievance
       with good faith and all due diligence.
 
          (c) If NARF refuses permission to file a late grievance
       concerning the May 27, 1982 suspension of Roy G. Evans, pay Evans
       the amount of earnings lost during the period of suspension, June
       7, 1982 through June 11, 1982.
 
          (d) Post at the Naval Air Rework Facility, Norfolk, Virginia,
       copies of the attached notice marked "Appendix" on forms to be
       furnished by the Federal Labor Relations Authority.  Upon receipt
       of such forms they shall be signed by a responsible Union official
       and shall be posted and maintained for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices are customarily posted.  Reasonable
       steps shall be taken by the Union to ensure that such notices are
       not altered, defaced, or covered by any other material.
 
          (e) Pursuant to 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region IV, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  October 5, 1984
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) In its answer to the complaint, Respondent asserted that the time
 period for filing a formal grievance is three days from the date of the
 informal hearing.  At the hearing, the Union Business Representative
 admitted that the grievance processing information included in Evans'
 notice of suspension was correct.
 
    (2) I reject Repsondent's contention that Evans never approached it
 for representation after the April 23, 1982 hearing.  Respondent's only
 evidence on this point is testimony by Russell Hurdle, Business
 Representative for District Lodge 74 of the Machinists Union,
 Repsondent's representative in unfair labor practice cases.  According
 to Hurdle, Rascoe stated that he tried unsuccessfully on several
 occasions to contact Evans because "he wanted to make sure that the
 employee was not disturbed," and "to determine what he wanted to do with
 this case," and that Evans was never working.  These heresay statements,
 made during the investigation of this case, are insufficient to rebut
 Evans' firsthand detailed account of the events.  In addition,
 applications for leave, in evidence, reveal that Evans took no annual or
 sick leave between June 21 and July 1, 1982.
 
    (3) At the hearing, the only evidence adduce by Respondent was
 heresay testimony that Evans never approached Rascoe after the hearing.
 In its brief, however, Respondent argues that assuming, arguendo, that
 Evans did seek assistance, Rascoe forgot the deadline.
 
    (4) See National Federation of Federal Employees, Washington, D.C.,
 OALJ-84-84, Case No. 4-CO-20019, at pg. 8, July 5, 1984, pending before
 the Authority, wherein the Administrative Law Judge concluded that the
 union's failure to attend a Merit System Protection Board hearing would
 violate the duty of fair representation absent a showing of good cause
 to excuse or explain the absence.
 
    (5) In Tidewater Virginia Federal Employees Metal Trade
 Council/International Association of Machinists, Local No. 44, 8 FLRA at
 218, the Authority struck down, in part, such an order to seek
 permission to file a late grievance, but did not indicate that this
 relief would always be inappropriate.
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    We will not afford on an arbitrary basis differing standards of
 employee representation to employees in units of e