31:1208(108)CO - AFGE Local 3529 and Jerry Cyncynatus -- 1988 FLRAdec CO



[ v31 p1208 ]
31:1208(108)CO
The decision of the Authority follows:


31 FLRA No. 108

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3529, AFL-CIO

                   Respondent

      and

JERRY CYNCYNATUS, AN INDIVIDUAL

                   Charging Party

Case No. 5-CO-60013

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to those exceptions.

The complaint alleged that the Respondent (the Union) violated section 7116(b)(1) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) when it failed to comply with section 7114(a)(1) of the Statute by failing to timely file a grievance concerning the suspension of Jerry Cyncynatus (the Charging Party) after assuring Cyncynatus that it would file the grievance.

We conclude, contrary to the Judge, that the Respondent did not breach its duty of fair representation under section 7114(a)(1). Accordingly, we will dismiss the complaint.

II. Facts

Jerry Cyncynatus, the Charging Party, is a member of a bargaining unit of employees of the Defense Contract Audit Agency, Chicago Region (DCAA). The bargaining unit is represented exclusively by the Union. His duty location is Cleveland, Ohio. Richard Lewinski was the Union President [PAGE] during the relevant time period and was located in Chicago, Illinois. The Union maintains an office in Chicago with a union telephone.

In November 1985, Cyncynatus received a letter from DCAA proposing his suspension for 5 days. Cyncynatus contacted Lewinski who agreed to come to Cleveland to investigate and discuss the case with him. Lewinski spent 3 days in Cleveland investigating the allegations set forth in the letter of proposed suspension. After returning to Chicago, Lewinski filed a reply to the letter of proposed suspension on behalf of Cyncynatus.

On February 4, 1986, Cyncynatus received from DCAA the decision to suspend him for 5 days beginning February 24, 1986. When Cyncynatus contacted Lewinski on February 4th, Lewinski told him that the Union would file "something on his behalf." ALJ Decision at 6. Cyncynatus attempted to contact Lewinski by telephone almost daily until the date of his suspension and spoke to him two or three times.

Lewinski was absent from work because of illness from February 19 until March 23, 1986. This period included February 24, the last day for timely filing a grievance over the suspension. On March 24, 1986, his first day back at work, Lewinski filed a grievance on behalf of Cyncynatus and stated in the grievance that it had been delayed by his (Lewinski's) illness. Lewinski believed that because of his illness, the timeliness of filing the grievance would not bar arbitration of the matter.

DCAA rejected the grievance as untimely filed. In May 1986, Lewinski informed Cyncynatus by letter that the Union had decided not to submit the grievance to arbitration because the grievance lacked merit.

In his almost 6 years as Union president, Lewinski handled approximately five formal grievances, and the disciplinary suspension of cyncynatus was the first grievance on employee discipline ever handled by him. Other Union officials were less experienced than Lewinski, and Lewinski usually handled representation matters himself because other Union officials normally were out of the office for work reasons. [ v31 p2 ]

III. Judge's Decision

The Judge stated that the Respondent offered two "tenable" reasons for failing to timely file the grievance: (1) Lewinski's illness, and (2) the belief that the timeliness problem would not bar arbitration of the matter. The Judge rejected both of these reasons. The Judge found that Lewinski was "not ill everyday" during the relevant period and that Lewinski was not the only Union representative who could have filed the grievance. ALJ Decision at 11. The Judge also found that the belief that the time limits would not affect the grievance did "not withstand scrutiny." ALJ Decision at 12.

The Judge concluded that the Respondent's failure to adequately explain its action created "an inference of intentional misconduct which it must overcome." ALJ Decision at 12. He then found that the Respondent offered no evidence to rebut the inference. Since the Respondent had no legitimate reasons for failing to timely file the grievance and did not rebut the inference, the Judge concluded that the Respondent's action constituted "deliberate and unjustifiable treatment of a bargaining unit employee." ALJ Decision at 12. On this basis, the Judge found that the Respondent had breached its duty of fair representation under section 7114(a)(1) of the Statute and had violated section 7116(b)(1) and (8) of the Statute.

The Judge recommended that the Respondent be ordered to take appropriate remedial action, including the requirement that the Respondent seek permission from DCAA to file a late grievance over Cyncynatus' suspension. If DCAA refuses permission to file a late grievance, the Judge's recommended order requires the Respondent to pay Cyncynatus for the amount of earnings lost because of the 5-day suspension.

IV. Positions of the Parties

The Union first contends that the complaint should be dismissed because it does not adequately set forth facts sufficient to establish a violation. The Union also contends that the record does not establish a violation under the Authority's standard for determining when a union breaches its duty of fair representation. The Union argues that the Judge erroneously concluded that a clear inference 6f intentional misconduct by the Union existed and that such an inference was not rebutted. [ v31 p3 ]

The Union maintains that this case is distinguishable from International Association of Machinists and Aerospace Workers, Local 39, AFL - CIO, 24 FLRA 352 (1986), where the only evidence offered by the union to explain its failure to file a grievance was a hearsay assertion that the union was never requested to provide representation. The Union maintains that here it provided the Judge with a detailed explanation of its failure to timely file the grievance.

The Union further contends that if the violation of the Statute is sustained, the recommended remedy should be modified. The Union argues that the backpay award is inappropriate because there is no evidence that the suspension of Cyncynatus was not justified.

In its opposition, the General Counsel maintains that the complaint was adequate and that the Judge correctly found a violation and appropriately remedied the violation.

V. Analysis

A. Adequacy of the Complaint

We find, contrary to the Respondent's contention, that the contents of the complaint were adequate and sufficient. Under section 2423.12 of our Regulations, a complaint must include a clear description of the acts which are claimed to constitute unfair labor practices, including, when known, the approximate dates and places of such acts and the names of the Respondent's agents or representatives who committed the acts. The complaint alleges that Respondent violated the Statute by the following acts and conduct:

Since on or before February 24, 1986, Respondent, by Richard Lewinski, failed to file a grievance concerning the suspension of Jerry Cyncynatus, within the time limits provided in the negotiated grievance procedure after assuring Jerry Cyncynatus that Respondent would file such grievance.

We find that this allegation sufficiently describes the acts claimed to constitute a breach of the duty of fair representation and that the contents of the complaint otherwise satisfy our Regulations. Accordingly, we will consider the Respondent's other exceptions to the Judge's decision. [ v31 p4 ]

B. Breach of the Duty of Fair Representation

We conclude, contrary to the Judge, that the Respondent did not breach its duty of fair representation under section 7114(a)(1) of the Statute.

In National Federation of Federal Employees, Local 1453, 23 FLRA 686 (1986), we addressed the nature of an exclusive representative's duty of fair representation where union membership is not a factor. We 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.

23 FLRA at 691.

We find that the record fails to establish that the Union acted arbitrarily or in bad faith in this case. Accordingly, under the standard set forth in NFFE, Local 1453, we conclude that the Union did not violate the Statute.

The Union's president travelled from Chicago to Cleveland to investigate the proposed suspension of Cyncynatus and spent 3 days conducting that investigation. The investigation encompassed interviews with Cyncynatus, his co-workers, and his supervisors. Subsequently, the Union prepared a reply to the proposed suspension. The Union's president, who represented unit employees in most representation matters, had handled only approximately five grievances prior to the Cyncynatus suspension. The suspension was the first disciplinary action he had handled.

After receipt of DCAA's decision to suspend Cyncynatus, the Union's president was absent from work for approximately 4 weeks. This absence included the [ v31 p 5 ] date--February 24--by which a timely grievance challenging the suspension had to be filed. The president filed the grievance on his first day back at work and stated in the grievance that it was filed late because of his illness.

As found by the Judge, the Union's president believed that the late filing of the grievance would not bar reconsideration of the matter because the delay was due to illness. The Judge concludes that this belief does not "withstand scrutiny," that the president was "not ill everyday" during the relevant period, and that the Union's failure to timely file the grievance was "unexplained." ALJ Decision at 11-12. We disagree with these conclusions.

It is clear that the Union's president did not timely file the grievance. It is also clear that a better course of action would have been for the president to ask another representative to file the grievance during his illness or to request an extension of time for the filing. Contrary to the Judge's conclusion, however, we find nothing in the record on which to base a conclusion that the president acted arbitrarily or in bad faith or deliberately and unjustifiably treated Cyncynatus differently from other unit employees.

The Union's president had conducted an extensive investigation into the proposed suspension and had prepared a reply for Cyncynatus. On his first day back at work after his illness, the president filed a grievance over the suspension, acknowledged that it was filed late, and stated that the delay was due to his illness. These facts do not support the Judge's inference that the Union's president engaged in intentional misconduct. In our view, the president's illness and resultant absence from work--during the time period for timely filing of the grievance--combined with the inexperience of the president and other Union officials in these matters better supports the conclusion that the Union president was simply negligent in handling the grievance.

Our decision in IAM, Local 39, 24 FLRA 352, does not compel a different result. In IAM, we found that the union's failure to file a grievance on behalf of a bargaining unit employee violated the Statute. The judge had found that it was implausible that the union had inadvertently mishandled the grievance and concluded that the union officials had intentionally ignored the employee's requests to file a grievance. [ v31 p6 ]

In contrast to the situation in IAM, the Union in this case plausibly explained the failure to timely file the grievance. We find, therefore, that the Union did not violate the Statute.

VI. Conclusion

The Respondent did not breach its duty of fair representation under section 7114(a)(1) of the Statute. Accordingly, the Respondent did not violate section 7116(b)(1) and (8) of the Statute. Therefore, we will dismiss the complaint.

VII. Order

The complaint in this case is dismissed.

Issued, Washington, D.C., April 22, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p7 ]

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3529, AFL-CIO

              Respondent

    and

JERRY CYNCYNATUS,
AN INDIVIDUAL

              Charging Party

Case No. 5-CO-60013

Kevin M. Grile, Esq.
         For the Respondent

Sharon Bauer, Esq.
         For the General Counsel

Before: ELI NASH, JR.
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations 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. 2423.10, et seq.

The charge in this case was filed on May 15, 1986 by Jerry Cyncynatus, an individual, against American Federation of Government Employees, Local 3529, AFL - CIO (herein called the Union or the Local).

The Complaint, issued on July 10, 1986, alleges that the Union violated section 7116(b)(1) and (8) of the Statute by failing to file a grievance concerning the suspension of Jerry Cyncynatus, within the time limits provided in the negotiated grievance procedure after assuring Cyncynatus that Respondent would file such grievance. [PAGE]

Respondent filed an Answer denying the commission of any unfair labor practices.

A hearing was held before the undersigned, in Cleveland, Ohio at which Respondent and the General Counsel appeared, adduced evidence, and examined and cross-examined witnesses. Parties were given an opportunity to argue orally and briefs 1 were filed by Respondent and the General Counsel 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 fact, conclusions of law, and recommendation.

Findings of Fact

The Union is the certified exclusive representative of a unit of professional and a unit of non-professional employees of the Defense Contract Audit Agency, Chicago Region (hereinafter referred to as DCAA or management). At all times material, the Union and DCAA have been parties to a collective bargaining agreement covering the terms and conditions of employment of bargaining unit employees of DCAA. The collective bargaining agreement contains, inter alia, a grievance and arbitration procedure, which sets out time limits for the filing of grievances, Article 27, Section 13 of the agreement provides as follows:

"SECTION 13: All time limits in this Article may be extended by mutual consent. Failure of the Employer to observe the time limits shall entitle the Union to advance the grievance to the next step. Failure of the employee(s) or Union to observe the time-limits shall terminate the grievance. No additional issues may be added to the grievance once it is reduced in writing." (emphasis added).

Jerry Cyncynatus is employed by DCAA and is a member of the bargaining unit represented by the union. Cyncynatus' duty location is Gould Ocean Systems Division, Cleveland, Ohio where he is employed as an Auditor, GS-11, Step 10. Cyncynatus has never been a member of the Union and has never been an officer or steward of the Union. Further, he has [ v31 p2 ] never been involved in any negotiations or labor-management meetings and prior to March 1986 had never attempted to file a grievance. Richard Lewinski was President of the Union from 1980 to May 2, 1986 and was its vice-president for two years prior. He is an agent of Respondent acting on its behalf. In addition to Lewinski there are nine officers of the Union including five stewards and five alternate stewards. The Union maintains an office in Chicago, Illinois, with a Union telephone.

On November 21, 1985, Cyncynatus received a letter from DCAA proposing his suspension for five workdays. The letter asserted that the proposed suspension was "for excessively engaging in nonwork related activities during working hours" and provided the following particulars:

During the last few months, you have engaged in nonwork related activities during work hours. These nonwork related activities have been both frequent and extensive in time. Specifically, during work hours, you have (i) made frequent personal telephone calls, some being long distance calls charged to the contractor; (ii) frequently read newspapers, magazines, and on at least one occasion, a paper back book, for extensive periods of time; (iii) on one occasion, spent a considerable amount of time preparing a "demographics map" and making derogatory comments regarding various groups of people, and (iv) frequently engaging in a trivial pursuit type game for varying lengths of time. These trivial pursuit type games were usually initiated by you.

The above activities have continued despite several oral and/or written attempts to correct these deficiencies.

On 23 July 1985 you were issued a written reprimand by Mr. Joel I. Greenberg, Supervisory Auditor, concerning your abuse of the telephone for personal calls. On 9 October 1985 you were issued another letter of reprimand by Mr. Greenberg for conducting personal activities during working hours. After Mr. Greenberg issued the latter letter of reprimand, we became aware that these abuses were far more extensive that originally thought. [ v31 p3 ]

Following Cyncynatus' receipt of the proposed suspension letter, he telephoned Lewinski at the Union's office in Chicago. In this telephone conversation, the proposed suspension and an EEO case initiated by Cyncynatus were both discussed. Lewinski concluded during this telephone conversation that the matter was not resolvable over the telephone and that he would have to visit Cyncynatus at the Gould plant to discuss the case.

During the first week of December 1985, Lewinski visited the Gould plant. On the first day of Lewinski's visit to Gould, he met with Cyncynatus until the end of the work day, reviewing the facts of his case. Following his meeting with Cyncynatus on Tuesday, Lewinski went to his hotel room and further reviewed documents provided to Cyncynatus by management in connection with the proposed suspension.

Included in the documents reviewed by Lewinski were statements provided to management by all non-supervisory DCAA employees working with Cyncynatus and management's notes of meetings held between these employees and management. According to notes taken by management of a meeting between DCAA employee Bill Weisheit and management, Weisheit admitted observing Cyncynatus reading books or magazines during working hours while the supervisor was gone, Cyncynatus making and receiving personal telephone calls and Cyncynatus playing a trivia-type game during working hours. According to these notes, Weisheit also attributed poor office atmosphere to Cyncynatus, suggesting that a strong enough stance had not been taken against Cyncynatus and asserting that Cyncynatus "has a way of running off at the mouth" and that Cyncynatus "continually complains." A statement provided by another DCAA employee, Fred Minear to management attributed deteriorating office morale to Cyncynatus because of his complaining about DCAA and to a disrespect on Cyncynatus' part toward co-workers. In the notes taken of a meeting between Minear and management, Minear also indicated that he observed Cyncynatus during working hours playing a trivia game, reading stamp magazines and talking to stamp dealers and collectors on the telephone. According to a statement provided by DCAA employee Carmen Johnson to management, Cyncynatus would, during working hours, play trivia games, engage in long personal telephone conversations, and read the newspaper sports section and stamp magazines. Johnson's statement, like the others, attributed deteriorating office morale to Cyncynatus' presence. According to management's notes of a meeting between Johnson and DCAA, Johnson expressed many of the deficiencies in Cyncynatus' work conduct later expressed [ v31 p4 ] in her statement. The statement provided by DCAA employee Melinda Way to management noted Cyncynatus' participation in trivia games and chronicled one work day in particular where, in the supervisor's absence, Cyncynatus read a newspaper and a book, played trivia games and spent at least an hour inserting names of groups of people onto a prepared map while making derogatory remarks about these groups, particularly homosexuals. DCAA's notes of a meeting held with Way also attributed a description of the work day later described in her statement to Way.

Among the statements by Cyncynatus' co-workers and management's notes of meetings held with these co-workers was a statement of a DCAA employee not stationed at Gould that he observed Cyncynatus reading newspapers and magazines in the supervisor's absence. Also included were previous memoranda of warning to Cyncynatus concerning personal activities during working hours.

The next day, a Wednesday, Lewinski began the day by spending an hour reviewing the case with Cyncynatus. Then Lewinski, with Cyncynatus present, spoke to Cyncynatus' co-worker Bill Weisheit. In this conversation, Weisheit apparently confirmed the accuracy of the statements given to, and recorded by, DCAA which were attributed to him. Weisheit never indicated that the statements he gave to management were made under duress. To the contrary, Weisheit repeated the assertions that Cyncynatus has a way of running off at the mouth and that the low level of office morale was attributable to Cyncynatus. Following the conversation with Weisheit, Lewinski next spoke to Cyncynatus' co-worker Fred Minear, again in Cyncynatus' presence. Minear similarly confirmed the accuracy of statements attributed to him and did not disavow any of those statements. Then, with Cyncynatus again present, Lewinski spoke to Cyncynatus' supervisor, a Mr. Greenberg, who expressed concern about Cyncynatus using the telephone of a co-worker and lying about it. Following that conversation, Lewinski met with Thomas Segroves, Cyncynatus' second-line supervisor. Cyncynatus was also present during this discussion. During Lewinski's visit at Gould, Lewinski did not speak to Way only because she was out of the office at a training session. Lewinski also did not speak to Carmen Johnson about Cyncynatus' case because Lewinski felt that she would not be helpful in refuting the charges against Cyncynatus.

On Thursday, Lewinski and Cyncynatus looked over telephone logs to respond to the allegation that Cyncynatus abused the telephone for personal matters. Lewinski also [ v31 p5 ] contacted a former co-worker of Cyncynatus for the purpose of providing a statement in support of Cyncynatus, but the co-worker apparently refused to provide a statement on Cyncynatus' behalf.

Upon leaving Gould, Lewinski allegedly had not reached a conclusion as to whether the potential suspension should be viewed as a grievance or a reprisal for an earlier EEO charge. Lewinski, however, had committed to Cyncynatus to respond to the proposed suspension. Lewinski then prepared a response to management's proposed suspension, dated December 19, 1985 and provided a copy to Cyncynatus. At no time did Cyncynatus complain to Lewinski about either the quality of the response provided by Lewinski or any alleged omission from the response prepared by Lewinski and apparently relied on Lewinski's expertise.

Beginning in January, 1986 and continuing through May, 1986 when he resigned from DCAA, Lewinski allegedly incurred an extended illness. According to Lewinski, he experienced fever, chills and extreme tiredness, evidenced by sleeping more than twelve hours per day. Lewinski states that he would work infrequently during the period of his extended illness and would be away from the office for weeks at a time. When Lewinski sought medical treatment he was simply told that there was a lot of flu around and that he should rest and take fluids. Official time and attendance records for Lewinski maintained by DCAA beginning with the two-week pay period ending February 8, 1986 and concluding with the two-week pay period ending May 3, 1986, do not totally confirm Lewinski's illness or even that he was on sick leave for this entire period.

On February 4, 1986, DCAA issued a letter to suspend Cyncynatus for five days on the basis of the facts asserted in DCAA's November 21 memorandum proposing a suspension. On the same day, Cyncynatus contacted Lewinski by telephone to inform him of the decision. At this time, Lewinski informed Cyncynatus that the Union would have to analyze the case to determine whether it should be handled as a reprisal for Cyncynatus' earlier EEO charges or whether a grievance should be filed. According to Lewinski he did not promise at this time that the Local would file a grievance. Nor did he express an opinion on the merits of the case. Lewinski did indicate to Cyncynatus that the Local would file something on his behalf, but denies that he told Cyncynatus that he would present the case to arbitration. Lewinski was at work on February 4, when Cyncynatus telephoned him, indicating that he was not ill, at a time he could either have acted on the [ v31 p6 ] grievance or told Cyncynatus that he was not going to process it any further.

On or about February 24, 1986, Lewinski was aware that the time limit for filing a grievance on Cyncynatus' matter was coming due. At that time, according to Lewinski, he did not believe that failing to file a grievance within the time period would be a problem. It was Lewinski's belief, he states, that because of his extended illness and management's knowledge that he was the only union representative used on grievance activities, that any issue of timeliness could be successfully dealt with as a threshold issue before an arbitrator, should the Local decide to submit the case to arbitration. Lewinski allegedly communicated this belief to Cyncynatus in a telephone conversation. Lewinski's belief, however, did not prove correct.

By the time of the February 24, telephone conversation, Cyncynatus had already talked with Jim George in the DCAA Personnel Office who advised Cyncynatus that while the time limit had expired he might try writing a letter on his own behalf. Cyncynatus then filed a grievance individually over his suspension. The DCAA Regional Director, alleging that the grievance was untimely, denied Cyncynatus' grievance. At the time that Cyncynatus filed his grievance, Lewinski was under the mistaken impression that only the Union could file a grievance. Lewinski formed this impression based on an interpretation of Appendix C on page 87 of the collective bargaining agreement where he read the requirement that a representative's signature must appear on a grievance to mean that a union representative was required. Consequently, Lewinski filed a grievance on Cyncynatus' suspension, in his capacity as Union president, on March 24, 1986. The first page of the grievance package indicated that "(s)teps 1 and 2 are waived since the action was taken by the Branch Manager at Step 2." The first page of the grievance package submitted by Lewinski also stated that "(t)he advancement of the grievance was delayed due to the illness of myself the Union representative." According to the corrected time and attendance reports kept by DCAA management, Lewinski did not work from February 19, 1986 to March 24, 1986.

On March 25, 1986, the DCAA Regional Director denied the grievance asserting untimeliness as a basis. Lewinski informed Cyncynatus of the DCAA Regional Director's decision and also told Cyncynatus that the Union's next step would be to decide whether to take the case to arbitration, but denies telling Cyncynatus that the Union would go to arbitration. At the time following Lewinski's receipt of the DCAA Regional [ v31 p7 ] Director's denial, Lewinski allegedly still believed that the question of the untimeliness of the grievance was a matter that could be overcome in arbitration.

In regard to the processing of a grievance over his suspension, Cyncynatus had three telephone conversations with Allen Kaplan. While there is a question as to who initiated these phone calls there is no question that the conversation occurred. At the time of these telephone conversations, Kaplan was a National Vice - President of the American Federation of Government Employees. The first contact between the two was initiated by Kaplan, allegedly as a result of a telephone call he had received from Helen Washington, a Local officer, informing Kaplan that Cyncynatus had been calling the local threatening to sue the Union if his case was not properly handled.

Consequently, Kaplan telephoned Cyncynatus and told Cyncynatus that he would be getting in touch with Lewinski to see that the suspension matter was processed. Kaplan further stated that he had heard Lewinski was ill and, if Lewinski was unavailable, Kaplan would assign someone from his staff to follow up and see that the grievance was processed by the union. Apparently Kaplan had not reviewed the case file at the time, and had no knowledge of the issues or facts involving Cyncynatus' suspension. Based on the representations made to Kaplan in his conversation with Cyncynatus, Kaplan stated that it sounded like the case had merit. Kaplan further presumed that if a local had been involved in a case, there was merit in the case. Kaplan further, therefore, proffered to Cyncynatus that, based on Kaplan's personal experience, timeliness questions were generally not a bar to an arbitrator's ruling on the substance of the case.

In his second telephone conversation with Cyncynatus, Kaplan informed Cyncynatus that Lewinski was going to advance the grievance to the next step. Kaplan did not indicate that any arbitration, whether "unilateral" or otherwise, had been filed. Kaplan had also asked Cyncynatus if he was a union member and offered to send him a membership application. The third conversation was initiated by Cyncynatus. At this time, Kaplan allegedly advised Cyncynatus that he (Kaplan) was not involved in the decision of whether Cyncynatus' case should go to arbitration; rather, that was a decision for the Local. Kaplan and Cyncynatus also engaged in a heated discussion when Cyncynatus told Kaplan that Cyncynatus' joining the Union was conditioned on the Union winning his case. Kaplan took exception to Cyncynatus' [ v31 p8 ] comment because of Lewinski's going to Cleveland on his behalf and some of the efforts Kaplan knew Lewinski made in the case. Kaplan also informed Cyncynatus since it was the local Union and not his office which held the recognition for the bargaining unit, if Cyncynatus had any question of representation, Cyncynatus should direct everything to the local Union. No evidence was ever presented that Kaplan participated in either the representation of Cyncynatus or in the decision-making of how Cyncynatus' case should be handled by the local Union. However, the record shows that after Cyncynatus and Kaplan spoke, Lewinski filed a Step 3 grievance regarding the suspension on March 24, 1986. This action can only leave the impression that Kaplan had an active hand in the second filing.

Sometime in mid-April of 1986, Lewinski gave his notice of resignation from DCAA. The decision apparently was based on Lewinski's belief that stress was a contributor to his extended illness. At the time that Lewinski had given his notice of resignation, he allegedly had not reached a conclusion about whether the propriety of Cyncynatus' five-day suspension should go to arbitration. However, Lewinski, testified that he believed by this time that the case could not be won on its merits before an arbitrator. Nor did he believe that the timeliness of the grievance was a problem for a union in any arbitration. Between mid-April and May 2, the day of Lewinski's resignation, Lewinski concluded that the Local would not go to arbitration on the question of the propriety of Cyncynatus' five-day suspension because of the merits.

Normally the decision as to whether the Local would take a case to arbitration would be made by Lewinski. Because of the difficulty of getting other unit employees together due to the nature of DCAA's work, it was easier for Lewinski to make the decision himself. Yet Lewinski contends that he would always confer with available employees on whether a case should go to arbitration and sometimes Lewinski's opinion would be influenced by the opinion of others.

With respect to possible arbitration of Cyncynatus' five-day suspension, Lewinski asserts that he discussed his conclusion on arbitration with Gene Koehler, then executive vice president of the Local and with the aforementioned Helen Washington, the Local's second vice president. Lewinski in particular chose to discuss the case with Koehler, because Koehler was to become acting-president and Lewinski wished to inform Koehler of the case for purposes of the transition of the presidency. The discussion between [ v31 p9 ] Lewinski, Koehler and Washington allegedly occurred spontaneously on May 1, 1986 at the Local's office in Chicago. Lewinski apparently did the majority of the talking in that meeting. According to his testimony he expressed his opinion that Cyncynatus' case would be difficult to win before an arbitrator on its merits because of the charges and prior warnings to Cyncynatus. Koehler and Washington concurred with Lewinski's conclusion. According to Lewinski's testimony at hearing, he had no recollection of telling Koehler and Washington that timeliness of the grievance was an issue in Cyncynatus' case. Lewinski's opinion that timeliness would not be a problem if Cyncynatus' case went to arbitration never changed. After this meeting, Lewinski signed and mailed to Cyncynatus a letter informing him that the Local had declined to take Cyncynatus' case to arbitration. Although Cyncynatus spoke with Koehler after he became President of the Local, Koehler never gave any reason why the Union decided not to go to arbitration on the grievance.

Conclusions

Since the hearing in this matter, the Authority has decided several cases in which it addressed the nature of an exclusive representative's duty of fair representation where union membership is not a factor. 2 In the Authority's view, the standard for judging whether the Union met its duty was set out as follows:

(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. [ v31 p10 ]

In making its argument in this case the General Counsel contends the Union breached its duty of fair representation, by ignoring the grievance and processing it in a perfunctory fashion. As evidence of the foregoing, the General Counsel asserts that the Union President assured Cyncynatus that he would file a grievance with the Regional Director and never told him that he would not file a grievance; that Cyncynatus repeatedly called the Union office to check on the status of his grievance; that Cyncynatus was deprived of his statutory and contractual right to file a grievance on his own behalf regarding serious discipline because he justifiably relied on the Union's assurance and representation; that no decision had been made by the Union that the grievance lacked merit, it in fact, must have determined that the grievance had merit, and the Union allowed the time limits to expire out of negligent and perfunctory conduct; and, finally that the Union offered no plausible reason to justify its conduct in failing to file a timely grievance with the Regional Director.

Respondent, also without Authority direction at the time its brief was filed, contended that the complaint failed to set forth a violation under the Statute; that the record showed no statutory violation and, that the remedy sought by the General Counsel was inappropriate.

In this case, the only tenable reasons offered by Respondent for its failure to timely file a grievance for Cyncynatus was that Lewinski, after telling Cyncynatus that he would "file something", failed to file anything under the collective bargaining agreement since he felt (a) the time limit was not important because it could be raised as a threshold question before an arbitrator and (b) that Lewinski experienced some illness from January through May 1986.

With regard to the latter defense, the record reveals that while Lewinski suffered some undiagnosed illness during this period he was not ill everyday and indeed during this same period of time received calls from Cyncynatus, while he was at work. No mention was ever made to Cyncynatus that Lewinski's illness would prevent his filing a grievance on Cyncynatus' behalf. Furthermore, the record evidence does not establish that Lewinski was the only Union representative capable of handling the Cyncynatus grievance. If he were indeed ill during all this period, seemingly some of his work, particularly that with time constraints would have been handled by someone else. In fact, Lewinski subsequently filed a third step grievance for Cyncynatus which was found untimely by the DCAA Regional Director. Despite denials, the [ v31 p11 ] clear inference to be drawn from the filing was that the grievance was meritorious.

Lewinski's opinion that the time limit would not affect the grievance also does not withstand scrutiny. It appears that the Cyncynatus matter indeed was considered meritorious by Lewinski, who finally, without argument, filed the above-mentioned third step grievance for Cyncynatus. That grievance predictably was rejected as untimely filed and under the collective bargaining agreement was terminated.

Respondent's unexplained failure to file the grievance in a timely fashion creates an inference of intentional misconduct which it must overcome. Without question, Cyncynatus was in contact with Lewinski almost daily before he began serving the February 24, 1986 suspension. After almost three weeks of calling Lewinski, it is hard to believe that Lewinski would not articulate some of the reasons why no grievance was filed, which were given at the hearing, to Cyncynatus. Since the reasons given by Lewinski are rejected as valid explanations for not filing a timely grievance, and absent evidence to rebut, what I view as a clear inference of intentional misconduct, I must conclude that the Union President chose to ignore Cyncynatus' requests. Although the Union clearly investigated Cyncynatus' grievance, its failure to file a timely grievance herein appears deliberate and unjustifiable treatment of a bargaining unit employee. Such circumstances require a finding that the Union intentionally ignored Cyncynatus' requests thereby causing Cyncynatus to lose the right to file a timely grievance under th collective bargaining agreement in the suspension matter. 3

In light of the foregoing, I conclude that the Union breached its duty of fair representation under section 7114 (a)(1) of the Statute by handling Cyncynatus' grievance in an arbitrary and discriminatory manner and, accordingly, it [ v31 p12 ] violated section 7116(b)(1) and (8) of the Statute. 4 Therefore, it is recommended that the Authority adopt the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that American Federation of Government Employees, Local 3529, AFL - CIO shall:

1. Cease and desist from:

(a) Failing to fairly represent Jerry Cyncynatus, 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 employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations 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 Defense Contract Audit Agency, Chicago Region, to file a late grievance concerning the February 24, 1986 suspension of Jerry Cyncynatus, and pursue the grievance with good faith and all due diligence.

(c) If the Defense Contract Audit Agency, Chicago Region refuses permission to file a [ v31 p13 ] late grievance concerning the February 24, 1986 suspension of Jerry Cyncynatus, pay Cyncynatus the amount of earnings lost during the period of his suspension (February 24, 1986 to February 28, 1986).

(d) Post at its business offices and its normal meeting places, where notices to members, and to employees of the Defense Contract Audit Agency 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 a responsible official or a designee and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure 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 Defense Contract Audit Agency, Chicago Region, 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 V, Federal Labor Relations Authority, 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

ELI NASH, JR.
Administrative Law Judge

Dated: October 9, 1987
       Washington, D.C.

[ v31 p14 ]

                                  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 fail to fairly represent Jerry Cyncynatus, or any other unit employee, as required 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 employees 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 Defense Contract Audit Agency, Chicago Region, to file a late grievance concerning the February 24, 1986 suspension of Jerry Cyncynatus, and pursue the grievance with good faith and all due diligence.

WE WILL, if the Defense Contract Audit Agency, Chicago Region refuses permission to file a late grievance concerning the February 24, 1986 suspension of Jerry Cyncynatus, pay Cyncynatus the amount of earnings lost during the period of his suspension (February 24, 1986 to February 28, 1986).

                               ____________________________
                                     (Agency or Activity)

Dated: ___________________ By: ____________________________
                                 (Signature)

[PAGE]

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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, whose address is: 175 W. Jackson Blvd., Suite A-1359, Chicago, IL 60604, and whose telephone number is: (312) 353-6306. [ v31 p2 ]

FOOTNOTES

Footnote 1 Respondent's motion to strike the Charging Party's submission to the Administrative Law Judge dated October 6, 1986 is granted.

Footnote 2 National Federation of Federal Employees, Local 1453 23 FLRA 686 (1986); Nat