American Federation of Government Employees, Local 2126, AFL-CIO, San Francisco, California (Respondent) and Julian J. Reimonenq (Complainant)
[ v01 p993 ]
01:0993(112)CO
The decision of the Authority follows:
1 FLRA No. 112
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2126, AFL-CIO,
SAN FRANCISCO, CALIFORNIA
Respondent
and
JULIAN J. REIMONENQ
Complainant
Assistant Secretary
Case No. 70-6211(CO)
DECISION AND ORDER
ON MARCH 29, 1979, ADMINISTRATIVE LAW JUDGE THOMAS SCHNEIDER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. /1/
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATION. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 70-6211(CO) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 20, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CURTIS TURNER
NATIONAL REPRESENTATIVE, AFGE
620 CONTRA COSTA BOULEVARD
SUITE 206
PLEASANT HILL, CALIFORNIA 94523
FOR THE RESPONDENT
WILLIAM EZZY
PAST PRESIDENT, AFGE LOCAL 2126
315 BALBOA COURT
ALAMEDA, CALIFORNIA 94501
FOR THE COMPLAINANT
BEFORE: THOMAS SCHNEIDER
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED; THE NOTICE OF HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR
OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES
DEPARTMENT OF LABOR; AND THE PROCEEDING WAS CONDUCTED BEFORE THE
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS. THIS DECISION,
PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44,
NO. 1, JANUARY 2, 1979, PAGES 708, IS ISSUED IN THE NAME OF THE
AUTHORITY AND, IN ACCORDANCE WITH SECTION 2400.2 (5 C.F.R. 2400.2) OF
THE TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE
AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL
REGULATIONS, PART 201, ET SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL
BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN THE
RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.
JULIAN J. REIMONENQ, ("COMPLAINANT") FILED A COMPLAINT AND AN AMENDED
COMPLAINT AGAINST LOCAL 2126 OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (THE "UNION") CHARGING THAT THE PRESIDENT OF THE UNION
VIOLATED EXECUTIVE ORDER 11491, AS AMENDED ("THE ORDER"), BY (1)
REFUSING TO REPRESENT HIM IN HIS "EEO CASE, COMPLAINT #1," (2) REFUSING
TO BE TECHNICAL ADVISOR IN HIS EEO COMPLAINT, AND (3) BY STATING THAT
HIS EEO CASE HAS NO MERIT.
THE REGIONAL ADMINISTRATOR, SAN FRANCISCO REGION, LABOR MANAGEMENT
SERVICES, AFTER INVESTIGATING, SET THE MATTER FOR HEARING. SAID HEARING
WAS HELD BEFORE ME IN SAN FRANCISCO, CALIFORNIA, ON NOVEMBER 16, 21 AND
22, 1978. COMPLAINANT WAS REPRESENTED BY MR. WILLIAM EZZY, A PAST
PRESIDENT OF THE UNION AND THE UNION WAS REPRESENTED BY MR. CURTIS
TURNER, NATIONAL REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES. BRIEFS WERE FILED BY BOTH PARTIES, THE LAST ONE BEING
RECEIVED ON DECEMBER 11, 1978.
FINDINGS OF FACT AND CONCLUSIONS
BACKGROUND
AT ALL RELEVANT TIMES THE UNION WAS ACCORDED EXCLUSIVE RECOGNITION BY
AND HAD ENTERED INTO A NEGOTIATED AGREEMENT WITH REGION 9, GENERAL
SERVICES ADMINISTRATION ("GSA"). COMPLAINANT WAS A CLERK (GS-4),
EMPLOYED BY GSA FOR TEN YEARS, AND A MEMBER OF THE UNION.
IT BECAME APPARENT AT THE HEARING THAT THERE WERE SOME PERSONAL
DIFFERENCES AT LEAST BETWEEN THE PRESIDENT OF THE UNION, LILA BELL, AND
ONE OF THE WITNESSES, A FORMER VICE-PRESIDENT OF THE UNION, ELIZABETH
TOR. MANY OF THE OTHER WITNESSES AND PARTICIPANTS IN THE CASE,
INCLUDING THE REPRESENTATIVES OF THE PARTIES, WERE ALLIED WITH ONE SIDE
OR THE OTHER. THIS FACTIONALISM CONTRIBUTED TO OBSCURING THE ISSUES
UPON WHICH THIS CASE TURNS. FOR EXAMPLE, NO COPY OF A COMPLAINT IN
COMPLAINANT'S "EEO CASE, COMPLAINT #1" WAS EVER INTRODUCED AND THERE WAS
SOME DISPUTE AS TO WHAT FACTS GAVE RISE TO SAID EEO COMPLAINT. IT
APPARENTLY ALLEGED DISCRIMINATION ON THE BASIS OF SEX AND RACE (TR.
172). /3/ COMPLAINANT IS MALE AND CONSIDERS HIMSELF LATIN (TR.
171-172). HE FEELS THAT GSA MANAGEMENT, AND IN PARTICULAR HIS
SUPERVISORS, ONE OF WHOM, MR. MILLER, IS BLACK, AND ANOTHER ONE OF
WHOM, MR. DEA, IS ORIENTAL, WILL BLOCK THE PROGRESS OF MALES WHO ARE
NEITHER ORIENTAL OR BLACK. MANAGEMENT'S ACT OF ALLEGED DISCRIMINATION
APPARENTLY WAS A LETTER OF INFRACTION COMPLAINANT RECEIVED (R-22) /3/
FOR ALLEGED RUDENESS TO SUPERVISOR DEA ON SEPTEMBER 8, 1977. /4/ THE
LETTER OF INFRACTION WAS ONE OF A SERIES OF DISCIPLINARY ACTIONS WHICH
GSA MANAGEMENT TOOK AGAINST COMPLAINANT, ULTIMATELY RESULTING IN HIS
TERMINATION IN JUNE OR JULY 1978. COMPLAINANT BELIEVES THAT ALL THE
DISCIPLINARY ACTIONS AGAINST HIM WERE SIMPLY PRETEXTS TO GET RID OF HIM.
HE HAS FILED A TOTAL OF FOUR EEO COMPLAINTS, ALL OF WHICH WERE STILL
PENDING IN AN UNSPECIFIED FORUM AT THE TIME OF THE HEARING.
THE UNION'S HANDLING OF THE FIRST OF THESE EEO COMPLAINTS WAS THE
FOCUS OF COMPLAINANT'S COMPLAINT AND OF THE HEARING. THERE WAS NO
HEARING ON THAT FIRST EEO COMPLAINT UNTIL JULY 19, 1978.
ON JANUARY 19, 1978, ELIZABETH TOR RESIGNED AS VICE-PRESIDENT OF THE
UNION. ON JANUARY 24 SHE ASKED PRESIDENT BELL BY LETTER WHETHER BELL
WOULD STILL ACT AS TECHNICAL ADVISOR IN COMPLAINANT'S EEO CASE. TOR HAD
BEEN REPRESENTING COMPLAINANT, BUT WANTED HELP. PRESIDENT BELL REPLIED
AS FOLLOWS:
"THE UNION HAS REVIEWED THE HISTORY OF THE CASE INVOLVED AND FEELS
THAT IT IS WITHOUT
MERIT. WE WOULD NOT PROCEED INTO THE FORMAL HEARING STAGE WITH THE
INFORMATION THAT HAS BEEN
DEVELOPED. IN ANSWER TO YOUR QUESTION, PARAGRAPH 4 OF YOUR LETTER
DATED JANUARY 24, 1978,
NO. I WOULD RECOMMEND YOU FIND ANOTHER PERSON TO ASSIST AS TECHNICAL
ADVISOR IF IT IS YOUR
DECISION TO MOVE FORWARD INTO THE HEARING." (C-D). /3/
BELL ALSO WROTE TO MANAGEMENT AS FOLLOWS:
"THIS IS TO NOTIFY YOU THAT MRS. ELIZABETH TOR (BETTY) IS NO LONGER
HOLDING OFFICE IN LOCAL
2126. SHE RESIGNED AS VICE PRESIDENT BY LETTER DATED JANUARY 19,
1978. THE EXECUTIVE BOARD
VOTED UNANIMOUSLY TO EXCEPT (SIC) THE RESIGNATION ON JANUARY 24TH,
EFFECTIVE TODAYS DATE.
MRS. TOR WILL NOT BE ACTING ON BEHALF OF THE LOCAL IN ANY MATTER
UNTIL FURTHER
NOTIFICATION, THEREFORE, ANY TIME SHE MAY WISH TO SIGN OUT FOR IN ANY
REPRESENTATIONAL DUTIES
WILL HAVE TO COME UNDER REPRESENTATION AS A GSA EMPLOYEE AND UNDER
GSA ORDERS.
I WISH TO TAKE THIS OPPORTUNITY TO THANK YOU FOR ALLOWING BETTY TO
REPRESENT THE EMPLOYEES
IN THE PAST WITHOUT INTERFERENCE, IT HAS BEEN GREATLY APPRECIATED BY
THE LOCAL. THANK YOU.
SINCERELY,
(S) LILA BELL
LILA BELL, PRESIDENT, AFGE LOCAL 2126" (C-C)
COMPLAINANT CONTENDS THAT THESE LETTERS FORM LILA BELL PREVENTED
BETTY TOR FROM REPRESENTING, OR CONTINUING TO REPRESENT HIM. HE ALSO
CONTENDS THAT BELL HAD NO BASIS FOR SAYING THAT HIS CASE "IS WITHOUT
MERIT." HE CONTENDS THAT THE UNION HAS AN OBLIGATION UNDER SECTION 10(E)
OF THE ORDER TO REPRESENT ALL EMPLOYEES WITHOUT DISCRIMINATION, AND
THEREFORE HAD AN OBLIGATION TO REPRESENT HIM. COMPLAINANT ALSO IMPLIES
SOME IMPROPER COLLUSION BETWEEN LILA BELL AND GSA MANAGEMENT AGAINST
COMPLAINANT. NO EVIDENCE SUPPORTS THIS IMPLICATION.
THUS, THIS CASE TURNS UPON THE QUESTION WHETHER THE UNION BREACHED
ITS DUTY OF FAIR REPRESENTATION.
FAIR REPRESENTATION
THE UNION CONTENDS THAT IT HAD NO DUTY TO REPRESENT CLAIMANT IN AN
EEO COMPLAINT BECAUSE THAT IS A STATUTORY APPEALS PROCEDURE WHICH CANNOT
BE THE SUBJECT OF THE NEGOTIATED AGREEMENT BETWEEN THE UNION AND THE
AGENCY. ALTERNATIVELY, IT CONTENDS THAT IN FACT IT REPRESENTED HIM. IT
ALSO CONTENDS THAT ITS INVESTIGATION WAS THOROUGH. LASTLY THE UNION
CONTENDS THAT THE DEPARTMENT OF LABOR HAD NO JURISDICTION TO HEAR THIS
COMPLAINT SINCE EEO MATTERS WERE HEARD UNDER CIVIL SERVICE COMMISSION
PROCEDURES. OF COURSE, I WILL NOT DECIDE THE MERITS OF COMPLAINANT'S
EEO COMPLAINTS; THEY ARE BEING LITIGATED ELSEWHERE. I MUST, HOWEVER,
ADDRESS THE QUESTION WETHER THE UNION VIOLATED EXECUTIVE ORDER 11491.
THE CHARGE HERE IS AGAINST THE UNION. GSA IS NOT A PARTY. THEREFORE
I MAY NOT DETERMINE WHETHER MANAGEMENT WAS JUSTIFIED IN ITS ACTIONS
AGAINST COMPLAINANT OR WHETHER IT ACTED FROM IMPROPER MOTIVES OF RACE OR
SEX DISCRIMINATION. NOTHING IN THIS OPINION IMPLIES ANY OPINION OF THE
MERITS OF COMPLAINANT'S EEO COMPLAINTS. THE ISSUE OF FAIR
REPRESENTATION BY THE UNION IS ENTIRELY DISTINCT AND SEPARATE. VACA V.
SIPES, (1967) 386 U.S. 171, 192-193.
THE EVIDENCE SHOWS THAT, UNTIL SHE RESIGNED AS VICE-PRESIDENT OF THE
UNION ON JANUARY 19, 1978, ELIZABETH TOR DID, IN FACT, INVESTIGATE
COMPLAINANT'S COMPLAINTS; AND REPRESENTED HIM IN HIS DEALINGS WITH EEO
COUNSELORS AND INVESTIGATORS. THEREAFTER SHE FELT PRECLUDED FROM DOING
SO BECAUSE SHE WAS NEITHER VICE-PRESIDENT OF THE UNION NOR A SHOP
STEWARD. BUT, AS THE UNION POINTS OUT, SHE WAS FREE TO DO SO AS AN
INDIVIDUAL EMPLOYEE OF GSA. SHE TESTIFIED THAT SHE CONTINUED TO ASSIST
THE COMPLAINANT, EVEN AT THE EEO HEARING IN JULY, AT WHICH TIME HE WAS
FORMALLY REPRESENTED BY COUNSEL.
IT IS THE LAW THAT THE UNION, AS SUCH, HAD NO DUTY TO REPRESENT
COMPLAINANT IN HIS EEO COMPLAINT. FPM LETTER 713-29 (P. 8); EXECUTIVE
ORDER 11491, SECTION 13(A); P.O. 92-261, SECTION 11, 42 U.S.C.
2000E-16(1976). THUS, THE VICE-PRESIDENT UNDERTOOK ACTIVITY ON
COMPLAINANT'S BEHALF BEYOND THE CALL OF DUTY. COMPLAINANT DOES NOT
SUGGEST OTHERWISE; HIS COMPLAINT IS NOT DIRECTED AT FORMER
VICE-PRESIDENT TOR, BUT AT PRESIDENT BELL.
I FIND THAT PRESIDENT BELL ADEQUATELY INVESTIGATED COMPLAINANT'S
COMPLAINTS. IN THIS CONNECTION IT IS NOTE-WORTHY THAT GSA MANAGEMENT
TOOK A NUMBER OF ACTIONS AGAINST COMPLAINANT, WHICH HE CONSIDERED
"HARASSMENT," AND WHICH HE WANTED REMEDIED. IT IS NOT POSSIBLE FROM THE
RECORD MADE BEFORE ME TO PINPOINT EXACTLY WHICH ACTIONS RESULTED IN THE
"FIRST EEO COMPLAINT." SUCH GSA MANAGEMENT ACTIONS INCLUDED (AMONG MANY
OTHERS REFERRED TO BUT NOT INTRODUCED AS EXHIBITS) A POOR EMPLOYEE
PERFORMANCE RATING (C-A), AND A CHARGE OF ONE-HOUR AWOL ON MAY 3, 1977,
AS A RESULT OF COMPLAINANT ALLEGEDLY USING A PUBLIC PHONE FOR 1 HOUR AND
40 MINUTES (R-17, R-19), AS WELL AS THE AFOREMENTIONED (SUPRA, P. 3)
RECORD OF INFRACTION ALLEGING LOUD AND DISRESPECTFUL CONDUCT ON
SEPTEMBER 8 (R-22). BELL'S ACTIVITY ON BEHALF OF COMPLAINANT INCLUDED
MEETINGS WITH COMPLAINANT, AND WITH THE SUPERVISORS INVOLVED. IT IS
EVIDENT THAT BELL'S STYLE WAS TO ATTEMPT TO NEGOTIATE AND COMPROMISE
WITH MANAGEMENT. THUS, SHE TRIED TO GET THE AWOL CHANGED TO TIME
CHARGED AGAINST ANNUAL LEAVE, AND TO GET MORE TIME FOR COMPLAINANT TO
IMPROVE HIS POOR PERFORMANCE RATING, AS WELL AS UPDATING THIS "FORM
171," SO THAT HE WOULD BE ABLE TO APPLY FOR OTHER POSITIONS. THIS IS
HARDLY EVIDENCE OF A BREACH OF THE DUTY OF FAIR REPRESENTATION. SEE,
E.G. BREWERY WORKERS (MILLER BREWING CO.), 195 NLRB 772, 79 LRRM
1538(1972).
BELL ALSO TESTIFIED THAT COMPLAINANT ADMITTED BEING "A TELEPHONE
ECCENTRIC" AND COMING TO WORK LATE BECAUSE HE WAS NOT BEING PAID ENOUGH.
COMPLAINANT DENIED THESE ADMISSIONS. I BELIEVE COMPLAINANT TO THE
EXTENT THAT HE DID NOT COIN THE PHRASE "TELEPHONE ECCENTRIC" TO MEAN
SOMEONE WHO USES THE PHONE FOR UNDULY LONG PERIODS, BUT I BELIEVE BELL'S
TESTIMONY IN SUBSTANCE THAT COMPLAINANT ADMITTED USING THE PUBLIC
TELEPHONE FOR LONG PERIODS AND COMING TO WORK LATE.
IN ADDITION TO THESE ADMISSIONS BY COMPLAINANT, BELL WAS SHOWN
INFORMAL LETTERS BY GSA MANAGEMENT TO COMPLAINANT THAT SHOWED THAT GSA
MANAGEMENT HAD COMPLAINED ABOUT COMPLAINANT'S ATTITUDE ON MANY OCCASIONS
DATING BACK TO 1972, INCLUDING SEVERAL IN 1976. THESE LETTERS
CONTRADICTED COMPLAINANT'S ASSERTION THAT HE HAD GOTTEN ALONG FINE WITH
SUPERVISORS PRIOR TO MR. DEA. COMPLAINANT CONTENDS THAT THESE WERE
UNOFFICIAL LETTERS THAT WERE NOT PART OF HIS PERSONNEL FILE, AND THAT
GSA MANAGEMENT ACTED IMPROPERLY IN MAINTAINING THEM. EVEN IF GSA
MANAGEMENT ACTED IMPROPERLY IN THIS CONNECTION, THE IMPROPRIETY CANNOT
BE IMPUTED TO BELL. SHE BEHAVED REASONABLY IN ACCEPTING THIS EVIDENCE
TOGETHER WITH ALL OTHER KNOWLEDGE THAT SHE OBTAINED IN EVALUATING
COMPLAINANT'S PROBLEMS WITH GSA MANAGEMENT.
FROM THE FOREGOING, AS WELL AS FROM HER LETTER TO TOR OF JANUARY 25,
1978, (C-D) IT IS CLEAR THAT BELL REACHED THE CONCLUSION THAT
COMPLAINANT HAD NO CHANCE OF WINNING AT A FORMAL HEARING. COMPLAINANT'S
WITNESSES TESTIFIED, AND I CREDIT THEIR TESTIMONY DESPITE BELL'S DENIAL,
THAT BELL SAID TO MR. MILLER, COMPLAINANT'S SUPERVISOR, THAT
COMPLAINANT'S FIRST EEO COMPLAINT "HAD NO MERIT." IF COMPLAINANT AND
BELL HAD A CLIENT-ATTORNEY RELATIONSHIP AND THE UNION AND GSA MANAGEMENT
HAD A STRICTLY ADVERSARY RELATIONSHIP, THIS COMMENT MIGHT BE IMPROPER.
BUT THE DUTY OF FAIR REPRESENTATION THAT A LABOR ORGANIZATION OWES TO
ALL UNIT MEMBERS UNDER SECTION 10(E) OF THE ORDER, IS NOT THE SAME DUTY
AN ATTORNEY OWES HIS CLIENT. SEE, SERVICE EMPLOYEES, LOCAL 579 (BEVERLY
MANOR CONVALESCENT CENTER), 229 NLRB 629, 95 LRRM 1156(1977). A LABOR
ORGANIZATION HAS NO DUTY TO "BLINDLY REPRESENT THE CAUSES" OF ITS
MEMBERS. LOCAL R7-51, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(NAGE) AND CHARLES A. QUILICO, A/SLMR 896, 7 A/SLMR 775, 782(1977). IN
REPRESENTING ALL MEMBERS OF THE UNIT, A UNION CANNOT AFFORD TO IMPAIR
ITS CREDIBILITY WITH MANAGEMENT BY CHAMPIONING CAUSES IT BELIEVES TO BE
FRIVOLOUS. EVEN A LATER DETERMINATION THAT THE CAUSE HAD MERIT WOULD
NOT PROVE A BREACH OF THE DUTY OF FAIR REPRESENTATION, SO LONG AS THE
UNION'S POSITION IS BASED ON GOOD FAITH. VACA V. SIPES, SUPRA (1967)
386 U.S. 171, 191-193. AN ATTORNEY, ON THE OTHER HAND HAS A DUTY TO
REPRESENT HIS CLIENT ZEALOUSLY TO THE LIMITS OF THE LAW REGARDLESS OF
HIS PERSONAL BELIEF. SEE ABA CODE OF PROF. RESPONSIBILITY, CANON 7
(1978). THUS, BELL'S STATEMENT THAT COMPLAINANT'S CASE HAS NO MERIT WAS
PERHAPS UNNECESSARY OR IMPRUDENT, BUT IT DID NOT VIOLATE HER DUTY AS
UNION PRESIDENT, NOR THE UNION'S DUTY OF FAIR REPRESENTATION. TO
ESTABLISH A BREACH OF THE DUTY OF FAIR REPRESENTATION, A MEMBER MUST
SHOW HE WAS TREATED DIFFERENTLY FROM OTHER MEMBERS. WHITTEN V. ANCHOR
MOTOR FREIGHT, 521 F.2D 1335, 90 LRRM 2161 (CA6, 1975). ALTHOUGH THAT
CASE AROSE IN THE PRIVATE SECTOR, THERE IS NO REASON FOR POSTULATING A
DIFFERENT STANDARD IN THE PUBLIC SECTOR. THERE IS NO EVIDENCE HERE THAT
BELL OR THE UNION WOULD HAVE TREATED DIFFERENTLY THE COMPLAINT OF ANY
OTHER MEMBER WHO WAS SIMILARLY SITUATED.
AFTER TOR RESIGNED AS VICE-PRESIDENT OF THE UNION IN JANUARY 1978,
COMPLAINANT ATTEMPTED TO ENLIST THE AID OF NUMEROUS OTHER SHOP STEWARDS
IN HIS ULTIMATELY LOSING BATTLE TO RETAIN HIS JOB. SOME, LIKE FRANK
MORENO WERE WILLING TO HELP, BUT COMPLAINANT WENT ELSEWHERE. MORENO
FELT THAT SOME OF COMPLAINANT'S COMPLAINTS AGAINST GSA MANAGEMENT WERE
VALID, BUT THAT HE BROUGHT OTHER PROBLEMS ON HIMSELF. MORENO COULD FIND
HARASSMENT BY GSA MANAGEMENT, BUT NO DISCRIMINATION. THIS LESS THAN
FULL SUPPORT FORM MORENO COOLED COMPLAINANT ON MORENO.
OTHER STEWARDS DECLINED TO HELP COMPLAINANT BECAUSE THEY WERE ADVISED
TO KEEP "HANDS OFF" BY PRESIDENT BELL AND NATIONAL REPRESENTATIVE
TURNER. BELL DENIED THAT SHE EVER SAID "HANDS OFF." I BELIEVE,
NEVERTHELESS, THAT SHE DID DISCOURAGE SEVERAL SHOP STEWARDS FROM GETTING
INVOLVED IN THEIR CAPACITY AS STEWARDS. HOWEVER, SUCH DISCOURAGEMENT
WAS PROPER SINCE THE UNION, AS SUCH, HAS NO DUTY TO REPRESENT AN
EMPLOYEE IN AN EEO COMPLAINT. SUPRA, P. 5. FURTHERMORE, BETTY TOR WAS
STILL OFFICIALLY REPRESENTING COMPLAINANT SINCE HER DESIGNATION (R-30)
HAD NEVER BEEN REVOKED.
BELL'S REFUSAL TO BE TECHNICAL ADVISOR
I CONCLUDE THAT BELL'S REFUSAL TO BE A TECHNICAL ADVISOR IN
COMPLAINANT'S EEO HEARING, WAS NOT A VIOLATION OF THE ORDER. THE UNION
INTRODUCED CONSIDERABLE EVIDENCE TO SHOW THAT, ABSENT SPECIAL
ARRANGEMENTS, IT WAS IMPERMISSIBLE TO HAVE BOTH A TECHNICAL ADVISOR AND
A REPRESENTATIVE AT A HEARING. BUT EVEN ASSUMING THAT SPECIAL
ARRANGEMENTS COULD HAVE BEEN MADE, THERE IS NOTHING TO COMPEL BELL IN
PARTICULAR TO SERVE AS TECHNICAL ADVISOR AGAINST HER WILL. FURTHER, THE
HEARING WAS NOT IMMINENT WHEN BELL DECLINED TO SERVE. IN FACT THE
HEARING DID NOT TAKE PLACE UNTIL ABOUT SIX MONTHS LATER.
CONCLUSION
IN SUMMARY, I CONCLUDE THAT THE RESPONDENT UNION DID NOT ACT
ARBITRARILY OR PERFUNCTORILY OR IN BAD FAITH, AND THUS DID NOT BREACH
ITS DUTY OF FAIR REPRESENTATION TO THE COMPLAINANT, UNDER ANY OF THE
POSSIBLE INTERPRETATIONS OF THAT DUTY. SEE BARHITTE V. KROGER CO., 99
LRRM 2663 (DC MICH. 1978) FOR A DETAILED REVIEW OF THE CASES.
ORDER
PURSUANT TO SECTION 6 OF EXECUTIVE ORDER, 11491, AS AMENDED, AND
SECTION 203.26(C) OF THE REGULATIONS (29 C.F.R. 203.26(C)) AND THE
TRANSITION RULES AND REGULATIONS, 5 C.F.R. PART 2400, 44 FED.REG. 7
(JANUARY 2, 1979), THE FEDERAL LABOR RELATIONS AUTHORITY HEREBY ORDERS
THAT THE COMPLAINT OF JULIAN J. REIMONENQ IS DISMISSED IN ITS ENTIRETY.
THOMAS SCHNEIDER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 29, 1979
SAN FRANCISCO, CALIFORNIA
TS:SCM
/1/ THE COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S DECISION AND ORDER WHICH WERE UNTIMELY AND THUS WERE NOT
CONSIDERED.
/2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224) THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/3/ THE RECORD IS REFERRED TO AS FOLLOWS:
R REFERS TO RESPONDENT'S EXHIBITS; C REFERS TO COMPLAINANT'S
EXHIBITS; TR. REFERS TO PAGES IN THE TRANSCRIPT.
/4/ R-22 SPECIFIES SEPTEMBER 9, BUT THE PARTIES AGREE THE EVENT
HAPPENED ON SEPTEMBER 8.