23:0686(92)CO - NFFE Local 1453 and Kenneth A. Crawford; NFFE Local 1453 and Clara Mae Dixon -- 1986 FLRAdec CO
[ v23 p686 ]
23:0686(92)CO
The decision of the Authority follows:
23 FLRA No. 92
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1453
Respondent
and
Case No. 4-CO-20022
KENNETH A. CRAWFORD, AN INDIVIDUAL
Charging Party
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1453
Respondent
and
Case No. 4-CO-30012
CLARA MAE DIXON, AN INDIVIDUAL
Charging Party
DECISION AND ORDER
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions filed by the General Counsel to the attached Decision of
the Administrative Law Judge. The Respondent filed an opposition to the
General Counsel's exceptions. The consolidated complaint alleged that
the Respondent (the Union) breached its "duty of fair representation" as
required by section 7114(a)(1) of the Federal Service Labor-Management
Relations Statute (the Statute) and thereby violated section 7116(b)(1)
and (8) of the Statute.
II. Facts and Judge's Findings
Case No. 4-CO-20022 (Kenneth A. Crawford). Employee Crawford was
being assisted by the Union in a grievance about his proposed
suspension. Without Crawford's knowledge, the agency (Veterans
Administration) had returned an attempted "third step" grievance request
to the Union, advising it that the proper procedure to follow was to
refile the grievance at step one. The Judge found that the Union failed
to inform Crawford of the status of his grievance, but that the evidence
did not support a finding that the Respondent "refused" to provide such
information. The Judge stated that "there is no refusal because there
was no specific request actually communicated to the Union." The Union
took no further action on the grievance.
Case No. 4-CO-30012 (Clara Mae Dixon). Employee Dixon was informed
that she was to be terminated and asked the Union President to help her.
She was referred to the Chief Steward. At their first meeting, the
Chief Steward asked Dixon to come back once she received her letter of
discharge. When Dixon came back with her letter, the Chief Steward
asked Dixon to get her personnel file and come back later. Dixon came
back, but the Chief Steward was not in the office. On her last day of
work, Dixon went to the Union President's office. Following the
President's offer to review "quite a few papers" and "quite a few
serious charges" against her, Dixon replied that she had more papers to
get from home and would return. She did not return and did not
specifically request that the Union file a grievance on her behalf. The
Judge did not credit Dixon's claim that the Union stated that there was
nothing it would do.
III. Judge's Decision
The Judge noted that while the Authority has addressed the question
of an exclusive representative's duty under section 7114(a)(1) of the
Statute to represent employees "without regard to labor organization
membership," it has not addressed the duty under that section to
represent employees "without discrimination."
The Judge analyzed at length the private sector experience under the
general provisions of the National Labor Relations Act (the NLRA), as
amended. The Supreme Court in Vaca v. Sipes, 386 U.S. 171 at 190
(1967), stated that:
A breach of the statutory duty of fair representation occurs
only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith.
As the Judge pointed out, the Federal Courts and the National Labor
Relations Board (NLRB) have differed widely in interpreting what
constitutes conduct that is "arbitrary, discriminatory, or in bad
faith."
The Judge rejected the proposed standard advanced by the General
Counsel that mere negligence or ineptitude is sufficient to establish
that a union has been "arbitrary" and thus breached its duty. He also
rejected as imprecise the NLRB's standard that "something more than
negligence" must be shown to establish a breach of duty. The Judge
concluded that in order to show that a union has breached its duty of
fair representation under the Statute, the General Counsel must prove
that the union has "deliberately and unjustifiably refused or failed to
represent a bargaining unit employee." The Judge applied this standard
to the facts of each case.
Crawford. As to employee Crawford, the Judge found that while the
Union may be faulted as ineffective or inept in its actions regarding
Crawford's grievance, the General Counsel failed to prove that the Union
deliberately and unjustifiably failed or refused to represent him. The
Judge thus found no breach by the Union of its duty of fair
representation and no violation of the Statute.
Dixon. As to employee Dixon, the Judge found that Dixon had not
fully cooperated with the Union in an effort to grieve her case and that
she did not in fact request the Union to file a grievance on her behalf.
He found that the Union had not failed or refused to represent Dixon
and thus did not breach its duty or violate the Statute.
IV. Positions of the Parties
The General Counsel excepts to the standard used by the Judge to
determine the extent of the Union's duty of fair representation under
the Statute and to the Judge's application of this standard to the
facts. The General Counsel maintains that negligence alone is
sufficient grounds for finding a violation.
The Respondent Union generally supports the standard applied by the
Judge. It points also to the fact that, while the Union took no action
to refile Crawford's grievance, Crawford knew in sufficient time before
his suspension that the grievance had to be refiled, but did not do so.
V. Analysis
We are in substantial agreement with the Judge's rationale and with
his ultimate conclusions. /1/ For the reasons that follow, we find that
the Union did not violate the Statute in the circumstances of either of
these consolidated cases. While the Authority has addressed an
exclusive representative's alleged breach of its duty of fair
representation based on union membership considerations, /2/ we have not
yet fully addressed the nature of an exclusive representative's duty of
fair representation where union membership is not a factor. /3/ We must
first determine what standard to apply in deciding whether the duty has
been met.
The duty of an exclusive representative to fairly represent all unit
employees arises under the second sentence of section 7114(a)(1) of the
Statute. See Appendix. While the first sentence of section 7114(a)(1)
is comparable to section 9(a) of the NLRA, under which the concept of
the duty of fair representation developed in the private sector, that
sentence sets forth certain rights of representatives which must be
accorded to a labor organization which has achieved the status of
exclusive representative for an appropriate bargaining unit. The second
sentence of section 7114(a)(1) -- which has no counterpart in the NLRA
-- imposes certain duties upon a labor organization when it acquires the
right of an exclusive representative set forth in the first sentence.
/4/
The second sentence of section 7114(a)(1) is virtually identical to
the second sentence of Section 10(e) of Executive Order 11491, as
amended (see Appendix), which was interpreted as "imposing certain
obligations upon a labor organization when it acquires the rights of an
exclusive representative." See, for example, United States Department of
the Navy, Naval Ordnance Station, Louisville, Kentucky, 3 FLRC 686, 690
(1975). Since the provisions of the Statute and the Executive Order are
virtually identical, and when Congress enacted the Statute it adopted
the language of the Executive Order without comment, the Executive Order
case law is relevant. In American Federation of Government Employees,
Local 2126, AFL-CIO, San Francisco, California, 1 FLRA 993 (1979), the
Authority held that the exclusive representative, by refusing a request
to act as an advisor, "did not act arbitrarily or perfunctorily or in
bad faith, and thus did not breach its duty of fair representation." In
American Federation of Government Employees, AFL-CIO, Local 987, 3 FLRA
715 (1980), it was held that "mere negligence will not support a finding
that the duty (of fair representation) has been breached." In Local
R7-51, National Association of Government Employees (NAGE), A/SLMR No.
896, 7 A/SLMR 775 (1977), the Assistant Secretary held that the "duty of
fair representation is breached only when the exclusive representative's
conduct is arbitrary, discriminatory, or in bad faith."
Under the Executive Order, therefore, a union's duty of fair
representation included not only the prohibition on discrimination
expressly set forth in section 10(e), but also the obligation to
represent employees without arbitrariness or bad faith implicit in that
section. In our view, Congress intended the Authority to apply a
similar standard under the analogous provision in section 7114(a)(1) of
the Statute. The Eleventh Circuit's decision in Warren v. Local 1759,
American Federation of Government Employees, 764 F.2d 1395, 1396, 1399
n.5 (11th Cir.), cert. denied, 106 S.Ct. 527 (1985), supports our
conclusion that the second sentence of section 7114(a)(1) is the source
of the duty of fair representation in the Federal sector. But see Pham
v. Local 916, American Federation of Government Employees, 799 F.2d 634,
638-39 (10th Cir. 1986), petition for rehearing filed (October 8, 1986).
Based upon the clear language of the Statute and the applicable
legislative history, /5/ we find that where union membership is not a
factor, the standard for determining whether an exclusive representative
has breached its duty of fair representation under section 7114(a)(1) is
whether the union deliberately and unjustifiably treated one or more
bargaining unit employees differently from other employees in the unit.
That is, the union's actions must amount to more than mere negligence or
ineptitude, the union must have acted arbitrarily or in bad faith, and
the action must have resulted in disparate or discriminatory treatment
of a bargaining unit employee. As discussed above, this standard is
consistent with that used in Executive Order cases and with that used by
the National Labor Relations Board in deciding similar cases. See
Office and Professional Employees International Union, Local No. 2,
AFL-CIO, 268 NLRB 1353 (1984).
VI. Conclusion
As to Kenneth A. Crawford, the Authority finds that the General
Counsel has not established that the Union deliberately and
unjustifiably treated him differently from other bargaining unit
employees. There is no showing that the Union's actions in failing to
notify Crawford of the return of his grievance or to take any action to
renew it at a different step constituted other than mere negligence or
miscommunication.
As to Clara Mae Dixon, the Authority also finds that the General
Counsel has not established that the Union deliberately and
unjustifiably treated her differently from other bargaining unit
employees. In this regard, there is no showing that the Union did
anything other than express views on the nature of the evidence against
Dixon.
Accordingly, the Authority finds that the Union did not violate
section 7114(a)(1) of the Statute, and did not violate section
7116(b)(1) and (8) of the Statute. Therefore, we shall dismiss the
consolidated complaint.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 4-CO-20022
and 4-CO-30012 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., October 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
Section 7114(a)(1) provides:
Section 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. An exclusive representative is responsible for representing
the interests of all employees in the unit it represents without
discrimination and without regard to labor organization
membership.
Section 10(e) of Executive Order 11491, as amended, provided in
pertinent part:
Sec. 10. Exclusive recognition.
. . . . . . .
(e) When a labor organization has been accorded exclusive
recognition, it is the exclusive representative of employees in
the unit and is entitled to act for and negotiate agreements
covering all employees in the unit. It is responsible for
representing the interests of all employees in the unit without
discrimination and without regard to labor organization membership
. . . .
-------------------- ALJ$ DECISION FOLLOWS --------------------
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
Respondent
and Case No. 4-CO-20022
KENNETH A. CRAWFORD, AN INDIVIDUAL
Charging Party
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1453
Respondent
and Case No. 4-CO-30012
CLARA MAE DIXON, AN INDIVIDUAL
Charging Party
Patrick J. Riley, Esq.
For the Respondent
Roy W. McIntosh
For the Charging Party
Barbara S. Liggett
For the General Counsel
Before: FRANCIS E. DOWD
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. Section 7101 et seq. It was instituted by the Regional Director
of the Fourth Region of the Federal Labor Relations Authority.
The charge in Case No. 4-CO-20022 was filed on August 5, 1982, by
Kenneth A. Crawford, an individual (hereinafter referred to as
Crawford), against the National Federation of Federal Employees, Local
1453 (hereinafter referred to as the Union or Respondent. The charge in
Case No. 4-CO-30012 was filed on February 14, 1983, by Clara Mae Dixon,
an individual (hereinafter referred to as Dixon), against the Union. On
May 18, 1983, an Order Consolidating Cases, Amended Consolidated
Complaint and Amended Notice of Hearing issued, which was further
amended at the hearing in this matter. The complaint alleges that
Respondent violated section 7116(b)(1) and (8) of the Statute, when it
failed and refused to represent Crawford and Dixon, and thereby failed
and refused to comply with the provisions of section 7114(a)(1) of the
Statute. Essentially, the issue is whether or not the Union breached
its "duty of fair representation" to Crawford or Dixon, or both.
A hearing was held in Miami, Florida at which time the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. Briefs
filed by the Respondent and General Counsel have been duly considered.
Upon the consideration of the entire record /6/ in this case,
including my evaluation of the testimony and evidence presented at the
hearing, and from my observation of the witnesses and their demeanor, I
make the following findings of fact, conclusions of law, and recommended
order.
Findings of Fact
1. The Veterans Administration, herein called VA, is an agency
within the meaning of Section 7103(a)(3) of the Statute. The VA Medical
Center, Miami, Florida, herein called VAMC, is an administrative
subdivision within the VA and an activity within the meaning of Section
2421.4 of the Rules and Regulations of the Authority.
2. National Federation of Federal Employees and Local 1453 are labor
organizations within the meaning of Section 7103(a)(4) of the Statute.
Prior to October 1, 1981, NFFE, Local 1453 was the exclusive
representative of certain VAMC employees. On October 1, 1983 certain
units at the VA were consolidated in Case No. 3-UC-11. Local 1453
became part of a consolidation of NFFE locals known as the Council of
Veterans Administration Locals.
3. At all times material herein, the following persons were agents
of Respondent: Elnora B. Weaver (President), Mary Vanaman (Fourth Vice
President and Secretary), Jeanette Cottle (Chief Steward), Benny Dykes
and Preston Jackson (Area Stewards).
Case No. 4-CO-20022 (Kenneth A. Crawford)
4. Kenneth Crawford was employed at the VAMC as GS-16 Purchasing
Agent from December 1979 through July 1982. He is now employed by the
U.S. Postal Service. His immediate supervisor at the VAMC was Frank
Tiano, Chief of Purchasing and Contracts. Tiano reported to Walter
Whittaker, Assistant Chief of Supply and to Wayne Hart, Chief of Supply.
Hart reported to T. C. Doherty, the VAMC Director.
5. According to Crawford, Tiano had promised him a day off on
Friday, March 5, 1982. This was cancelled and at Crawford's request
Union Chief Steward Cottle met with Tiano and Crawford on about March 3
about the matter, together with Maggie Smith, Tiano's assistant. The
result was that management took the position it had a right to cancel
days off for the good of the service when it was necessary to do so.
The next day, Crawford became ill and reported to the VA hospital "in
the evening" where he was able to obtain a "two week duty excuse"
covering the period from March 5 through March 18 or 19. Crawford
described his illness as a "service-connected injury" which flares up
from time to time. He was not any more specific. Crawford, whom I
found to be intelligent, competent and aggressive, chose not to directly
inform his supervisor about the reasons for his failure to report to
work. If credited, Crawford merely told the doctor to inform the
administrative duty officer who would, in turn inform the service of his
absence (Tr. 48). When he eventually (at 11:30 the evening of March 4)
called his supervisor he was told he was being placed on AWOL.
Apparently his shift began at 8:00 p.m. and carried over to Friday,
March 5. It is not clear whether this is the shift he originally had
been given off, or whether it is a shift actually beginning the evening
of March 5.
In any event, one thing led to another and Crawford's next dispute
with the VA concerned his insistence on using sick leave and LWOP during
his absence and VA's refusal to grant him LWOP in lieu of annual leave.
Union steward Cottle assisted Crawford at some of his meetings with
supervisory officials.
6. A different account of what happened may be gleaned from G.C.
Exh. No. 5, a proposed suspension (for 15 days) dated March 29. This
document accuses Crawford of the following:
a. On March 3, 1982 you contacted Mrs. Maggie Smith, stating
that you needed four hours of annual leave and that you would come
to work by 12:30 PM or call. You did not report for work or call
and were charged 4 hours of Absence Without Leave (AWOL).
b. You did not follow proper procedures in requesting sick
leave on March 5, 1982 in that you did not request sick leave
until 1:00 PM and Medical Center Policy 05-36-77 dated August 10,
1977 requires you to call in within two hours of the beginning of
your tour of duty. You were therefore charged 5 hours of Absence
Without Leave (AWOL).
c. You did not follow proper procedures in requesting leave
for March 5, 1982 through March 12, 1982 in that you have failed
to submit an SF-71 covering this period of time as requested by
Mr. Tiano, your immediate supervisor, and as required by Medical
Center Policy 05-36-77 dated August 10, 1977.
d. You were charged Absence Without Leave for the period of
March 5, 1982 through March 12, 1982 for failing to properly
request leave.
On the second page of the proposed suspension notice, Crawford
indicated that he desired the Union to be given a copy of the letter.
On the same day, March 29, he sent a second memo to the Union requesting
its assistance but failed to indicate the reason for his request.
(Having previously obtained the assistance of Cottle by merely
telephoning her, it appears to me that Crawford was attempting to
"document" his attempt to obtain Union assistance by these memos.) In
any event, he talked to Chief Steward Cottle and Mary Vanaman (a paid
secretary of the Union) on April 6 and Vanaman typed a request for an
extension of time in which he responded to the proposed suspension.
Hart replied on April 26 granting an extension of time until close of
business on April 30. Crawford's rebuttal dated April 30 was prepared
by himself and typed by Vanaman. I credit Cottle's testimony that she
did not review it.
7. By memo dated May 6, Hart informed Crawford that he was being
suspended for 7 days, May 12 through to May 18. He was also told he had
a right to file a grievance which "must be submitted through your
supervisor not later than fifteen (15) calendar days after you receive
this suspension." (Under the current agreement, then in effect, an
employee had 30 days.) I credit Crawford's testimony, and discredit
Cottle, that she suggested to Crawford that he file his grievance at the
Step Three level with the Director. (See last paragraph of G.C. Exh.
No. 9.) By memo dated May 20, Crawford prepared and signed a grievance
which was submitted with a cover letter from the Union to Director T. C.
Doherty. By memo dated May 26, Doherty returned the grievance to the
Union but did not notify Crawford of this fact. The memo advised the
Union that the proper procedure was to file the grievance at Step One
with the Chief of Supply Service.
8. Crawford testified that in June and July he attempted to contact
Cottle, and she acknowledges these attempts. Except for Crawford's own
testimony, the evidence does not establish that his purpose was to
inquire about the status of his grievance. He never really stated in
any phone calls that this is all he was seeking; he didn't leave any
message at the Union office; and he didn't memorialize in writing his
intended purpose. He could have been seeking help in connection with
more serious problems he was having at the same time, as noted in the
next paragraph. Nevertheless, it was logical and quite natural for him
to be inquiring about his grievance, so I accept his testimony that this
was his purpose. More importantly, during this period no Union official
attempted to contact Crawford and tell him about Doherty's refusal to
accept the grievance at Step Three.
9. By memo dated June 24, Crawford was notified by Hart that VAMC
proposed to remove him based on a number of incidents, including
insubordination and AWOL, occurring between May 7 and June 1 (G.C. Exh.
No. 10). The testimony does not indicate that Crawford sought the
Union's assistance with these incidents until after his removal was
proposed. On about July 5 or 6 he found Cottle in the Union office.
She said Vanaman was on vacation so she couldn't provide clerical help.
She suggested he submit a handwritten response to Doherty, which he did
on July 7. On July 22 Doherty issued a decision to remove Crawford
(G.C. Exh. No. 12). Although his decision made reference to the prior
suspension, I believe the General Counsel is mistaken when suggesting
inferentially that but for the prior suspension perhaps the penalty here
would be something less than removal. To suggest this conclusion is to
ignore the allegations of insubordination contained in the proposed
removal letter.
10. On an unspecified date, Vanaman told Crawford that Weaver had
received a reply from Doherty. On July 26, 1982, Crawford went to the
Union office and confronted Weaver about the letter from Doherty that
Vanaman had mentioned to him. Crawford asked if she was aware of the
letter and if she had a copy of it. Weaver looked through several files
and found the letter dated May 26, 1982. Crawford read the letter and
asked why someone had not informed him so that they could go back to
Steps One and Two. Weaver replied that the Union had followed the
correct procedure, and that if Crawford believed what Doherty was saying
in the letter, then he should not be in the Union office he should be
downstairs with management. Weaver threw the file folder designated
"Kenneth Crawford" to Crawford and told him to get out, that there was
nothing the Union could do. I am unable to credit Weaver's testimony
that she never discussed Doherty's letter with Crawford.
11. The Complaint alleges in paragraph 9 that on several occasions
in June and July after the grievance was filed, (1) Crawford attempted
unsuccessfully to contact the Union for the purpose of inquiring about
the status of his grievance, and (2) that the Union officials failed and
refused to provide him with such information, and (3) took no further
action with respect to the grievance. As to (1) I credit Crawford's
testimony and conclude that this allegation is supported by the
evidence. As to (2) I find that the Union failed to inform Crawford of
the status of his grievance; however, the evidence does not support a
finding that Respondent refused to provide such information. There is
no refusal because there was no specific request actually communicated
to the Union. As to (3), there is no dispute that the Union took no
further action on the grievance. No attempt was made to refile at Step
One or to ask Doherty to reconsider his Step Three decision.
12. Factually, Respondent's defense is simply to explain what
happened from its viewpoint and to attempt to rebut some of Crawford's
assertions. To this end, Counsel for Respondent produced two witnesses:
Union President Weaver and Chief Steward Cottle. (Mary Vanaman was out
of the state and unavailable to testify.) Except where there testimony
was in direct conflict with Crawford's, I found them both to be
basically honest and forthright. Although I have accepted Crawford's
testimony that he was attempting to contact Cottle, I do not find that
she was intentionally avoiding any contact with him. A careful review
of the entire record, including the exhibits, shows that whenever
Crawford really wanted to get ahold of a Union official he was able to
do so. The fact remains, however, that the Union officials failed to
communicate with him. I am unable to accept Weaver's explanation that
she didn't tell Crawford because she didn't see him. What is more
likely, as her counsel suggests, is that she never even thought to
contact Crawford. Weaver also testified that she didn't go back to the
Director because she thought that would have been futile. What is more
likely is either that she too readily accepted management decisions in
order to avoid confrontations, or she really thought it was correct to
file at Step Three. But, she did not request arbitration and offered no
explanation as to why she didn't refile the grievance at Step One.
Finally, as to Weaver's testimony that she made "an honest mistake," I
do not accept her own characterization of the Union's inaction. Her
repetition of this phrase seemed more contrived -- for the purpose of
this hearing -- than genuine. (When she threw Crawford's file at him
and told him to get out, she certainly was not admitting any mistake.)
With respect to Cottle, her testimony was more confused than evasive and
in many respects more believable than Weaver or Crawford. I accept her
explanation that she assumed Crawford received a copy of Doherty's reply
because he signed his grievance and because he did all his own writing
and kept copies of all the pertinent documents. I believe this
describes Crawford accurately. I do not believe she was aware of
Doherty's reply until preparing for this hearing. I do not agree with
the General Counsel that her testimony (Tr. 194-198) was contradictory.
Even Crawford appeared to believe that Cottle was unaware of the Doherty
response (Tr. 68, lines 10-12).
Case No. 4-CO-30012
13. On December 8, 1982, Dixon, an employee at the VAMC since
February 8, 1982, was informed by Assistant Chief of Nursing Elizabeth
Hamlet, that her performance as a nursing assistant was unsatisfactory
and that she would be terminated on January 25, 1983. The following
day, Dixon went to see Weaver who was on duty at the time. Dixon told
Weaver she was going to be discharged, and asked Weaver if she could
help her. Weaver told her this was Chief Steward Cottle's job and told
her to see Cottle (Tr. 102, lines 19-20). Dixon went to Cottle and
explained her situation. Cottle told Dixon to come back when she had
received the letter of discharge.
14. On January 14, 1983, Dixon received a notice of discharge (G.C.
Exh. No. 14). After receiving the notice Dixon met Cottle on or about
January 21 enroute to the bathroom and followed her into the bathroom
where she showed Cottle the discharge notice. I credit Cottle that she
told Dixon to get her file from personnel and meet Cottle later in the
Union office (Tr. 102, lines 15-16). Cottle went to the Union office
and waited but Dixon did not appear. I do not credit Dixon's version
that Cottle reviewed her "papers" and said there's nothing she could do.
/7/
15. On January 25, her last day of work, Dixon came to Weaver's
office accompanied by Queenie Johnson. Dixon had quite a few papers
with her which Weaver examined and then commented that "you have quite a
few serious charges here against you." According to Weaver, Dixon
replied, "Well, they are all lies." Weaver then offered to get together
and see what could be done to get the matter resolved, but Dixon said
she had more materials at home which she would obtain and then return in
a few days. She did not return. Again, I do not credit Dixon's version
that Weaver merely responded (allegedly like Cottle) that there was
nothing she could do. /8/
16. I also find, based upon my review of Dixon's testimony, that
while she sought the assistance of the Union, she did not specifically
request the Union officials to file a grievance as alleged in the
Complaint.
17. From June 16, 1978 until June 4, 1982, a collective bargaining
agreement (G.C. Exh. No. 21) between the Union and VAMC (herein called
the Local Agreement) governed the rights and obligations of the parties.
An Interim Agreement (G.C. Exh. No. 22) defined the rights of the
parties between June 4, 1982 and January 12, 1983, the effective date of
the current collective bargaining agreement (G.C. Exh. No. 20) between
NFFE and the Veterans Administration (herein called the Master
Agreement). Each of these agreements contains a negotiated grievance
procedure which was effective during the periods set forth above. The
grievance procedures in the Local Agreement and the Interim Agreement
specifically provided that the grievance procedures did not apply to the
termination or separation of probationary employees. (G.C. Exh. No. 21,
Article XII, Section 1; G.C. Exh. No. 22, Grievance Procedure,
Paragraph 2(f)). However, the current Master Agreement is silent as to
probationary employees. Because they are not specifically excluded, the
Union argues that they are included. The VA, however, apparently argues
that probationary employees are excluded in Article 6, Section 2 because
they come within the category of statutory exclusions encompassed by
Section 7121(c)(4) of the Statute which states that any negotiated
grievance procedure shall not apply to grievances concerning "any
examination, certification, or appointment."
Discussion of the Applicable Case Law
Insofar as I have been able to determine, this is a case of first
impression concerning a union's duty of fair representation under the
Federal Service Labor-Management Relations Statute. In my opinion, this
straightforward facts presented here present the Authority with an
opportunity to chart a course and enunciate the appropriate standard to
be followed in future cases in which the exclusive representative is
charged with negligence or ineptitude. For this reason, I have elected
to present a detailed analysis of the history surrounding the duty of
fair representation. To this end I have been assisted by an excellent
brief submitted by Respondent's counsel, whose main thesis and detailed
research have been incorporated herein to the maximum extent possible,
as modified and expanded to reflect my own views.
A. Evolution of the Duty of Fair Representation
In 1944, the Supreme Court held in a racial discrimination case
arising under the Railway Act (45 U.S.C. Section 151 et seq.) that a
bargaining representative had a "duty to exercise fairly the power
conferred upon it in behalf of all those for whom it acts, without
hostile discrimination against them." Steele v. Louisville & Nashville
RR Co., et al., 323 U.S. 192 (1944); see also Tunstall v. Brotherhood
of Locomotive Firemen, 323 U.S. 210 (1944). And, in The Wallace
Corporation v. NLRB, 323 U.S. 248, 255, the Supreme Court observed that
a union, by its selection as bargaining representative, became "the
agent of all the employees, charged with the responsibility of
representing their interests fairly and impartially." Subsequently, the
Supreme Court extended this duty to unions certified under the National
Labor Relations Act, as amended, (herein the NLRA) 29 U.S.C. Section 141
et seq. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953).
The National Labor Relations Board, hereinafter referred to as the
NLRB, decided in 1962 that Section 7 of the NLRA gives employees the
"right to be free from unfair or irrelevant or invidious treatment by
their exclusive bargaining agent in matters affecting their employment."
Miranda Fuel Company, Inc., 140 NLRB 181, 185. Thus, the NLRB concluded
that a breach of the duty of fair representation constituted an unfair
labor practice. The Miranda decision, however, was denied enforcement
by a divided Second Circuit, 326 F.2d 172 (1963).
In Humphrey v. Moore, 375 U.S. 325, 349 (1966), Moore, on behalf of
other aggrieved employees, sought to enjoin the implementation of a
decision by the Union and the Company to dovetail seniority lists. The
Supreme Court held that it was proper to institute such suit in a State
Court under Section 301 of the NLRA, but that federal law governed. In
a passing reference to the NLRB's Miranda decision, the Court stated:
Although there are differing views on whether a violation of
the duty of fair representation is an unfair labor practice under
the Labor Management Relations Act, it is not necessary for use to
resolve that difference here. Even if it is, or arguably may be,
an unfair labor practice, the complaint here alleged that Moore's
discharge would violate the contract and was therefore within the
cognizance of federal and state courts, . . . subject, of course,
to the applicable federal law. (Footnotes omitted).
In discussing a union's duty of fair representation the Supreme Court
quoted from its earlier decision in Ford v. Huffman, as follows:
A wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents,
subject always to complete good faith and honesty of purpose in
the exercise of its discretion. Id., at 338. Just as a union
must be free to sift out wholly frivolous grievances which would
only clog the grievance process, so it must be free to take a
position on the not so frivolous disputes.
As to the merits, the Supreme Court held that (1) "the union acted
upon wholly relevant consideration, not upon capricious and arbitrary
factors," and (2) "the union took its position honestly, in good faith
and without hostility or arbitrary discrimination." Accordingly, the
Supreme Court found no breach of the duty of fair representation.
In 1967 the Supreme Court had an opportunity to further elaborate on
the duty of fair representation in its landmark decision of Vaca v.
Sipes, 386 U.S. 171 (1967). A principal issue resolved by the Court was
that the NLRB's Miranda decision did not preempt the State Court from
jurisdiction over suits by individuals under Section 301, and that the
NLRB's "tardy assumption of jurisdiction" over the duty of fair
representation cases by virtue of its Miranda decision did not "oust the
courts of their traditional jurisdiction to curb arbitrary conduct by
the individual employee's statutory representative." Id. at 183. In
discussing the standard against which to determine whether a union has
violated its duty of fair representation, the Court at (190) stated
that:
A breach of the statutory duty of fair representation occurs
only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith.
See Humphrey v. Moore, supra; Ford Motor Co. v. Huffman, supra.
Four years later in Motor Coach Employees v. Lockridge, 403 U.S. 274
(1971), the Court reaffirmed the Vaca standard. In order for an
employee to make out a claim of breach by his union "(h)e must have
proved 'arbitrary or bad-faith conduct' on the part of the Union." Id.
at 299, citing Vaca, supra, 386 U.S. at 193. While discussing
preemption principles in Lockridge, the Court explained that "the duty
of fair representation was judicially evolved . . . to enforce fully the
important principle that no individual union member may suffer
invidious, hostile treatment at the hands of the majority of his
coworkers," and that "the very distinction . . . between honest,
mistaken conduct, on the one hand, and deliberate and severely hostile
and irrational treatment, on the other hand, needs strictly to be
maintained." Id. at 301. (Emphasis mine.)
B. Conflict Among the Federal Courts in the Application of
the Vaca standard.
As noted above, the Vaca standard is "arbitrary, discriminatory, or
in bad faith." In this regard the Courts have had very little problem
with determining when a union's conduct is discriminatory or in bad
faith. There is no question that the duty has been violated when the
evidence demonstrates that the union did not pursue a grievance due to
personal animosity, internal political rivalry, invidious discrimination
or some other form of intentional misconduct. The problem arises in
determining when such conduct is "arbitrary." /9/ Unfortunately, there
have been some conflicting opinions issued by lower federal courts
concerning the type of conduct which comes within the meaning of
"arbitrary." The reason for the conflict seems to stem from the fact
that the Supreme Court in Vaca also used the word "perfunctory"
elsewhere in its decision. /10/ As a result, some courts consider
perfunctory to be synonymous with arbitrary or at least included within
the definition of arbitrary. Ruzicka v. General Motors Corp., 523 F.2d
306 (6th Cir. 1975) (Ruzicka I), clarified 649 F.2d 1207 (1981) (Ruzicka
II); Robesky v. Quantas Empire Airways, Ltd., 573 F.2d 1082, 1089-91
(9th Cir. 1978). While the courts agree that simple negligence is
insufficient to give rise to a breach of duty claim, the courts differ
with each separate set of facts on the amount or degree of negligence,
if any, required to come within the meaning of "arbitrary" or
"perfunctory." Compare Dutrisac v. Caterpillar Tractor Co., 511 F. Supp.
719 (N.D. Cal. 1981) with Hoffman v. Lonza Inc., 658 F.2d 519 (1981).
The 1981 Dutrisac decision essentially follows the Ruzicka principle
that a showing of bad faith is not an essential element in any claim of
unfair representation. In Dutrisac, the union steward processed a
grievance to the third step but then failed to timely file a request for
arbitration for a discharged employee. The court concluded that in a
case of a terminated employee, where a determination had been made by
the union that the grievance had some merit, "no matter how innocently
the time limit was missed, such conduct cannot constitute 'mere'
negligence." Id. at 727. Since missing the deadline deprived the
employee of his exclusive forum to challenge his discharge, the
steward's failure to act was arbitrary conduct constituting a breach of
the duty of fair representation. /11/ On the other hand, a different
result was obtained in Hoffman a case involving essentially the same
facts. There, the Seventh Circuit concluded that applicable law
required proof of intentional misconduct on the part of the union.
Since the union simply "forgot" to perfect the grievant's appeal to
arbitration, a breach of duty had not been shown. Citing Lockridge, at
299, the Court concluded that the duty of fair representation was not
breached "without substantial evidence of fraud, deceitful action or
dishonest conduct." /12/ Accord, Graf v. Eglin, Joliet and Eastern
Railway Co., 697 F.2d 771 (7th Cir. 1983); Superczynski v. P.T.O.
Services, Inc., 706 F.2d 200 (7th Cir. 1983); Medlin v. Boeing Vertol
Co., 620 F.2d 957, 961 (3rd Cir. 1980). See also, Cannon v.
Consolidated Freightways Corp., 524 F.2d 290 (7th Cir. 1975).
Thus, we have the broad standard of Ruzicka and Dutrisac line of
cases, and we have a more narrow standard as exemplified by the
Lockridge and Hoffman line of cases. More recently, we have another
lower federal court decision which, in my opinion, is worthy of
consideration and discussion.
In Lewis v. American Postal Workers Union, 561 F. Supp. 1141 (W.D.
Va. 1983), a steward processed a grievance at the early steps of a
grievance procedure but failed to file timely at Step Three. The
Grievance was denied as untimely, and the union elected not to go to
arbitration and so advised Lewis. Chief Judge James C. Turk reviewed a
number of court opinions on the duty of fair representation, including
those applicable in the Fourth Circuit. /13/ He also pointed to the
lack of uniformity among the courts by citing certain other cases. /14/
He then concluded as follows:
The court concludes, after having reviewed the foregoing
authorities, that some degree of conscious misfeasance or
dereliction is contemplated by the "arbitrary" standard as set
forth in Vaca. Thus, the courts' reluctance to find liability for
purely negligent acts results from the attempt to implement this
distinction. The other two elements of Vaca -- bad faith and
discrimination -- clearly contemplate distasteful action of the
type noted before unions may be held liable. "Arbitrary" or
"perfunctory" treatment of grievances may also be condemned on
such grounds, when it rests on indifference or slovenliness -- in
short, when the union has completely abdicated its
responsibilities to union members. Thus, when a shop steward
misses a deadline because he just does not care, his union may be
liable for breaching the duty of fair representation. Negligent
handling of a grievance, however, when it results not from a total
lack of interest therein, but from an honest mistake or
carelessness, is not actionable. Like the negligent tortfeasor in
any other area of negligence law, the negligent shop steward has
not committed a wrong of the sort contemplated by Vaca.
Applying these principles to this case, the court concludes
that (Steward) Morrison's failure to file the grievance resulted
not from indifference or slovenliness, but from honest mistake or
carelessness. Plaintiff, when deposed, testified as to no facts
which would suggest otherwise. In fact, as the court already has
noted, plaintiff testified at his deposition that he and Morrison
were on good terms, and that the latter missed the deadline only
because, at worse, he was unfamiliar with the grievance procedure.
Further, the court has already held that no evidence supports
plaintiff's contention that the grievance was handled against a
general backdrop of perfunctoriness.
It appears to me that what the Lewis court is saying is that the
broad standard of Ruzicka and Dutrisca is incorrect because negligent
acts are not intentional acts of misconduct. At the same time, Lewis
gives new meaning to the "arbitrary and perfunctory" language of Vaca by
recognizing that there may be circumstances where intentional misconduct
ought to be imputed to the union where it is shown that the union, by
its conduct and behavior, has completely abdicated its responsibilities
to its members. By settling on the phrase "some degree of conscious
misfeasance or dereliction," the Lewis court essentially is adopting the
Lockridge and Hoffman line of cases requiring evidence of intentional
misconduct. In the process of reaching this result, however, the court
has done the same thing as many other courts have done; it has used new
terminology and, in effect, new word-tests.
In light of the foregoing, it seems clear that the "absence of clear
standards and the extremely broad approach taken by some courts have
operated to adversely affect national labor policy in several important
ways" /15/ because "unions have considered it more prudent to process
clearly nonmeritorious grievances all the way through the grievance
procedure and on to arbitration, lest they be accused of breaching their
duty of fair representation." /16/ Since we are living in a very
litigious society these days, the result has been clogged grievance and
arbitral channels, a proliferation of cases before the NLRB and the
courts, and an expenditure of a substantial amount of time and financial
resources by management and union officials. It is these factors which
the Authority should consider in deciding what test or standard should
be followed in federal sector cases.
C. The NLRB's View that Something More Than Negligence is
Required for Union Action or Inaction to be Considered
"Arbitrary."
In 1974, the NLRB issued a most significant decision in Great Western
Unifreight /17/ in which it concluded as follows:
From the above court and Board decisions, it is clear that
negligent action or nonaction of a union by itself will not be
considered to be arbitrary, irrelevant, invidious, or unfair so as
to constitute a breach of the duty of fair representation
violative of the Act. Something more is required. In the instant
case, the modified complaint merely alleges only that the
Respondent negligently failed and refused to timely process the
meritorious grievance to the serious detriment of the Charging
Party. Nothing more is charged. Absent an allegation showing
something more than negligence alone, we conclude that the
negligent conduct of the Respondent alleged herein does not
constitute by itself a breach of the duty of fair representation
in violation of Section 8(b)(1)(A) of the Act.
In its discussion of prior cases the NLRB cited a case /18/ in which
the union failed to refer for employment an employee whom it had
neglected to register at the hiring hall. "Mere forgetfulness or
inadvertent error," the NLRB held, "is not the type of conduct that the
principles of Miranda were intended to reach." Also cited by the NLRB
was a First Circuit decision /19/ involving a union's negligence in
failing to discover a defect in an employer's machine with the result an
employee was injured. The court held that the NLRA, as amended,
"imposes upon the exclusive representative only a duty of good faith
representation, not a general duty of due care."
From the foregoing, it would appear that the NLRB -- whose decisions,
of course, are not binding upon the Authority -- has chosen a narrow
standard more in accord with the Lockridge-Hoffman-Lewis approach.
D. Decisions of the FLRA Interpreting the Federal Service
Labor-Management Relations Statute.
Section 7114(a)(1) of the Statute provides that a labor organization
is "responsible for representing the interests of all employees in the
unit it represents without discrimination and without regard to labor
organization membership." To date, the cases issued by the Authority
interpreting the Statute /20/ have only involved representing employees
"without regard to labor organization membership." Tidewater Virginia
Federal Employees Metal Trades Council/IAM, Local 441, 8 FLRA No. 47 8
FLRA 217 (March 19, 1982); /21/ American Federation of Government
Employees, Local 1778, AFL-CIO, 10 FLRA No. 62, 10 FLRA 346 (October 8,
1982); National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 519
(November 23, 1982); and Overseas Education Association, 11 FLRA No.
75, 11 FLRA 377 (1983).
In only one case has the Authority had an opportunity to address the
issue of whether negligence alone violates the duty of fair
representation. American Federation of Government Employees, Local 987,
3 FLRA No. 115, 3 FLRA 717 (1980). But that case sheds no light on the
subject because the Authority adopted the Chief Judge's decision without
comment, except to say that its decision "was based solely on the basis
of E.O. 11491, as amended" and "does not prejudge in any manner either
the meaning or application of related provisions in the new Statute or
the result which would be reached by the Authority if the case had
arisen under the Statute rather than the Executive Order." Accordingly,
to the extent the General Counsel relies on this case as precedent, such
reliance is misplaced. /22/ However, as I indicated at the beginning of
this decision the present case presents an opportunity for the Authority
to establish its own standard.
E. The General Counsel's Position on the Applicable
Standard.
In her brief, Counsel for the General Counsel concedes that federal
courts do not consistently agree on the essential elements of the duty
of fair representation" and that "mere negligence by the union in
processing a grievance does not rise to the level of misconduct
necessary to support an action for a breach of the duty of fair
representation . . . " She notes, however, that gross negligence by a
union in processing a grievance is the type of "arbitrary" conduct
needed to establish a breach of the duty of fair representation."
(Citing, Robesky, Ruzicka, Dutrisac, supra.)
With specific reference to Crawford (Case No. 4-CO-20022), the
General Counsel's brief states:
As the Sixth Circuit stated in Ruzicka, supra, "(W)hen a union
makes no decision as to the merit of an individual's grievance but
merely allows it to expire by negligently failing to take a basic
and required step toward resolving it, the union has acted
arbitrarily and is liable." /23/
And, in reference to Dixon (Case No. 4-CO-30012), the brief states:
Thus, Counsel for the General Counsel asserts that the Union's
callous indifference to Dixon's plight is yet another example of a
case where the individual interest at stake is strong and the
union's failure to perform a ministerial act completely
extinguishes the employee's right to pursue his claim. Under the
circumstances, there is no public policy to be furthered by
shielding the Union from consequences of its failure to discharge
its duty to fairly represent Dixon. See, e.g., Dutrisac, and
Robesky, supra. Counsel for the General Counsel urges the
Administrative Law Judge to conclude, as the court concluded in
Dutrisac, supra "that the union should be responsible for a total
failure to act that is unexplained and unexcused."
There is no question, therefore, that the General Counsel is asking
the Authority to adopt a more stringent and broader standard for federal
employee unions than what the NLRB has adopted for unions representing
employees in the private sector.
F. The Respondent's Position on the Applicable Standard.
Respondent submits that the proper standard is intentional misconduct
as stated by the Seventh Circuit in Hoffman, supra. That circuit
explicitly set forth the standard in Graf, supra, 697 F.2d at 778, as
follows:
The union has a duty to represent every worker in the
bargaining unit fairly but it breaches that duty only if it
deliberately and unjustifiably refuses to represent the worker.
In his brief, Counsel for Respondent sets forth the following
arguments:
There are at least three reasons why a broader standard would
be inappropriate. First, a broader standard would permit the FLRA
continually to impose what it would have done in the same
situation. Such intervention would be destructive of good
bargaining relationships since an agency would never be sure that
the negotiated grievance procedure was viable or final. In
addition, the union's representation would be undermined. It
would constantly act as if it were under review, causing inhibited
exercise of its discretion. Employees would turn to the FLRA in
droves when dissatisfied with the outcome of their grievances.
Eventually, the union would lose its significance and become too
weak to act effectively or at all. The unions must be permitted
to exercise discretion freely, to review grievance procedure and
policies routinely, and to correct admitted mistakes in grievance
handling when they occur. (There should be no naive or idealistic
impression that mistakes will not occur.)
Second, it is necessary to protect the union's financial
resources and thereby its effectiveness. Federal sector labor
organizations cannot compel the payment of dues. Often they
represent units which dwarf their dues-paying membership. A
broader standard, that the General Counsel no doubt advocates,
will deplete the union's meager coffers, especially when the
General Counsel is seeking monetary relief for the charging
parties as here.
Finally, the CSRA explicitly states "without discrimination" in
Section 7114(a)(1). It does not say "arbitrary" as it could have
since Vaca was decided well before the CSRA was enacted. It is
difficult to imagine "discrimination" in any sense other than
intentional and deliberate. The existing case law is helpful for
sake of analysis but the private sector statutes are silent with
respect to the duty. The CSRA is not. The statutory language
itself should control the breach of the duty of fair
representation in the federal sector.
Counsel's brief also discusses the 1983 decision of the Seventh
Circuit in Graf, supra, where the court reexamined and adhered to its
1981 decision in Hoffman v. Lanza, inc. Daniel Graf was a discharged
employee who requested his union representative to file an appeal which
had to be filed within 60 days in accordance with the grievance
procedure. The union representative wrote out the appeal by hand and
stuck it in his pocket together with several others only to find after
60 days had expired that it was still there in his pocket. The union
agent testified that his failure to submit the appeal was inadvertent.
There was no evidence of bad motive. It was clear to the court that the
agent's failure to dig Graf's appeal out of his pocket was pure
negligence. But the court said that the union agent's "lapse of memory"
does not signify such a "reckless indifference to Graf's interests that
it can be called intentional misconduct." In its brief, Counsel also
made these comments about the Graf decision:
The appellate court also considered a few practical
considerations in reaching a narrow standard of liability. First,
competence is in the union's self-interest. Union officers "must
render an adequate level of 'constituent service' to retain
(their) position(s)." 697 F.2d at 778. And in turn the union must
have competent stewards if it expects to remain the exclusive
representative of the employees. Thus, both the stewards/officers
and the union have incentives to exercise care and diligence in
handling of grievances independent of incentives provided by the
potential for liability.
Secondly, union officers are not professional advocates. They
are hourly workers who perform the duties of stewards, on a
part-time, unpaid basis. They cannot be held to the same standard
as attorneys.
Finally, Counsel points out that under Section 7121(b)(3)(B) of the
Statute, negotiated grievance procedures must provide federal employees
with the right to present grievances on their own behalf. "If bargaining
unit members cannot trust the Local to represent their interests, they
will file their own grievances. They will question whether they are
receiving any value for their union dues. If they conclude that they
are not, they will elect new officers or seek to decertify. Thus, it is
in the union's best interest for its agents to do the best that it can
for the bargaining unit."
Conclusions of Law
A. Rejecting the General Counsel's Broad Standard.
I believe the Authority should reject, as I do, the broad standard of
Ruzicka and Dutrisac whereby negligence may serve as a basis for
concluding that a union's conduct is arbitrary. First, such a standard
misinterprets the Supreme Court's decision in Vaca and completely
ignores Lockridge where the Supreme Court stated that "the very
distinction . . . between honest, mistaken conduct, on the one hand, and
deliberate and severely hostile and irrational treatment, on the other
hand, needs strictly to be maintained." As the Lewis court stated:
"some degree of conscious misfeasance or dereliction is contemplated by
the 'arbitrary' standard as set forth in Vaca." As the First Circuit
said in Brough, supra, the exclusive representative has a duty of good
faith representation and not a "general duty of due care."
Second, not all bargaining units in the federal sector are composed
of employees at the higher GS-grade levels; some are composed mainly of
employees at the lower end of the GS-grade scale. Similarly, not all
employees are well-educated, intelligent and sophisticated. Some
bargaining units are composed primarily of employees of minority status,
especially if located in certain geographical areas. These are facts of
life which have to be recognized because, as the court said in Graf,
"union officers are not professional advocates. They are hourly workers
who perform the duties of stewards on a part-time, unpaid basis. They
cannot be held to the same standard as attorneys." With this in mind, I
believe it would be unfair to impose such a broad standard and such a
high duty of care upon federal employee union representatives.
B. Rejecting the NLRB's Standard for the Private Sector.
With respect to the NLRB's test of proving "something more than
negligence," I conclude that it has both advantages and disadvantages.
On the one hand, it has the advantage of eliminating "mere negligence"
cases from the NLRB's case flow while at the same time not precisely
defining "something more" and leaving this to case-by-case litigation.
On the other hand, it has the disadvantage of encouraging litigation to
flesh out the meaning and the parameters of "something more" which by
itself lacks specificity. While the NLRB may conclude that its test is
appropriate in the private sector, I am inclined to advocate an even
narrow standard in the federal sector.
C. Adopting a Narrow Standard for Federal Sector
Employees.
As noted at the beginning of this decision, the Supreme Court has
held that "federal law governs." Therefore, the Vaca standard followed
by the courts and the NLRB is the applicable standard for cases arising
under the Federal Service Labor-Management Relations Statute. That
standard requires finding a breach of the duty of fair representation
where the union's conduct is arbitrary, discriminatory or in bad faith.
/24/ To the extent that some confusion has arisen as to the kinds of
conduct deemed "arbitrary," I agree with, and adopt, the excellent
analysis of the Seventh Circuit Court of Appeals in its 1981 decision in
Hoffman v. Lanza, 658 F.2d 519 (1981) where the court concluded that the
Vaca standard required a finding of intentional misconduct before a
union may be found to have breached its duty. When the Seventh Circuit
in Graf, supra, recently reconsidered its Hoffman decision, it restated
the test as follows:
The union has a duty to represent every worker in the
bargaining unit fairly but it breaches that duty only if it
deliberately and unjustifiably refuses to represent the worker.
Respondent persuasively argues that the Authority should adopt this
standard. I agree for the following reasons.
First of all, my reading of the Supreme Court decisions cited herein
convinces me, as it did the Seventh Circuit and other courts, that the
Supreme Court was speaking of intentional union misconduct. In Graf the
use of the word "deliberately" adds nothing to its previous Hoffman
standard because this is a synonym for "intentionally." However, the use
of the word "unjustifiably" is a helpful addition because it separates
intentional acts into two categories: justifiable and unjustifiable.
In the former category may be included a union's decision, based upon a
rational and reasonable exercise of judgment, not to file a grievance at
Step One, to settle grievances at any stage, or not to go to arbitration
on every grievance. /25/ In the latter category may be included those
cases where the courts have rejected the union's explanation for its
conduct, instead finding the conduct or inaction was based upon
invidious and irrelevant considerations, bad faith, hostility, fraud,
deceitful action, dishonesty, or irrational treatment -- all of which
come within the meaning of unjustifiable." /26/ Frankly, I don't think
it should make too much difference whether the Authority adopts the
Hoffman language of "intentional misconduct" or the Graf language of
"deliberately and unjustifiably." I am inclined to prefer the latter
simply because it is more specific and should be easier to apply.
The adoption of a narrow standard for federal employee unions is
consistent with the trend today towards less regulation by the
government. It also reflects a desire to be sensitive to the peculiar
problems of federal employee unions. As Respondent points out, federal
unions cannot compel the payment of dues and they often represent units
which draw their dues-paying membership. Utilization of grievance
procedures requires a union to have competent representatives. Resort
to arbitration requires financial resources. Not every bargaining unit
provides either the manpower or the money. For this reason, the
Authority should limit its involvement in a federal employee union's
internal affairs to determining only whether the union is representing
all employees in unit fairly; i.e., without discrimination. If
employees are not satisfied with how well they are being represented,
they can vote for new officers or seek to decertify the union and,
perhaps choose another union. In my opinion the Authority should not
follow the example of those courts which have become unnecessarily
involved in looking over the shoulder of union representatives and
second-guessing their judgment. Rather, the Authority should limit its
intervention to those cases where the General Counsel has proven that
the union has deliberately and unjustifiably refused or failed to
represent a bargaining unit employee. It is this standard which I shall
apply herein.
D. Case No. 4-CO-20022 (Kenneth A. Crawford)
Section 7118 of the Statute provides that a "preponderance of the
evidence" is required in order to find a labor organization has engaged
in an unfair labor practice. The Consolidated Complaint alleges in
paragraph 9 that (1) on several occasions in June and July after the
grievance was filed, Crawford attempted unsuccessfully to contact the
Union for the purpose of inquiring about the status of his grievance,
and (2) that the Union officials failed and refused to provide him with
such information, and (3) that Respondent took no further action with
respect to the grievance.
As to (1) I credit Crawford's testimony and conclude that this
allegation is supported by the evidence. As to (2) I find that the
Union failed to inform Crawford of the status of his grievance;
however, the evidence does not support a finding that Respondent refused
to provide such information. There is no refusal because there was no
specific request actually communicated to the Union. As to (3) there is
no dispute that the Union took no further action on the grievance. No
attempt was made to refile at Step One, or to ask Doherty to reconsider
his Step Three decision, or to go to arbitration, or take any other
action. Rather, the Respondent's President simply took no action at
all. /27/ The issue, therefore, is whether the Union's undisputed
failure to take any further action with respect to Crawford's grievance
is the kind of conduct which constitutes a breach of duty of fair
representation.
As discussed and concluded above, the Vaca standard of "arbitrary,
discriminatory, or in bad faith" is applicable here, and in order to
prove a breach of the duty of representation the General Counsel must
prove by a preponderance of the evidence that the union "deliberately
and unjustifiably" failed or refused to represent an employee. Applying
this standard to the instant facts, the suggestion is why did the Union
fail to take any action? The answer, as suggested by Respondent's
counsel, is quite clear. This is a classic case of ineffective and
inept representation, but even if the Union's conduct were characterized
as negligence, it would not be actionable. There is absolutely no
evidence to suggest that the Union's inaction was malicious,
discriminatory or in bad faith. There is no evidence of hostility
towards Crawford by Weaver, who hardly knew him, or by Cottle, who
represented him in meetings and gave him assistance both with his
suspension and his subsequent removal. There is no evidence that the
Union's failure to take any further action on the grievance was
motivated by an intent to discriminate against Crawford or an intent to
treat him unfairly. In short, there is an absence of evidence to serve
as a basis for imputing to the Union an intention on its part to
deliberately and unjustifiably fail to represent Crawford properly.
What happened here is that Union President Weaver received Doherty's
denial of the grievance filed at Step Three and she simply concluded it
was futile to "go back to the Director" (TR 132). It apparently did not
even occur to her to attempt to refile at Step One or to notify Crawford
so that he could do so.
On the basis of the foregoing and my review of the entire record, I
conclude that the General Counsel has not proven by a preponderance of
the evidence that Respondent deliberately and unjustifiably failed to
inform Crawford or to take any further action on the grievance. For
this reason I do not find that Respondent breached its duty of fair
representation. Accordingly, I find and conclude that Respondent did
not fail to comply with Section 7114(a)(1) in violation of Section
7116(b)(8), and did not interfere with, restrain and coerce employees in
the exercise of their rights guaranteed under the Statute, in violation
of Section 7116(b)(1).
Case No. 4-CO-30012 (Clara Mae Dixon)
Section 7118 of the Statute provides that a "preponderance of the
evidence" is required in order to find that a labor organization has
engaged in an unfair labor practice. For the reasons set forth above in
paragraphs 13-16, supra, I find that the General Counsel has not
established by a preponderance of the evidence that Dixon asked the
Union to file a grievance on her behalf. Assuming, arguendo, that
Dixon's request for "help" may be construed as a request to file a
grievance, I do not find that the Union either failed or refused to file
the grievance. /28/ Cottle did not refuse to file a grievance but,
rather, asked Dixon to return when she actually received a written
letter of discharge. Dixon did return but, after talking to Weaver,
said she had to get more papers from home. This time she did not return
and, therefore, did not fully cooperate. Weaver did not tell her there
was nothing she could do. On these facts, I find and conclude that
Respondent did not fail or refuse to represent Dixon. /29/ Therefore,
Respondent did not breach its duty of fair representation and thereby
violate Section 7116(b)(1) and (8) as alleged.
Ultimate Conclusions
Having found that Respondent did not engage in any unfair labor
practices by the actions and conduct described above, and therefore has
not violated Section 7116(a)(1) and (8) as alleged in the Amended
Consolidated Complaint, I recommend that the Authority issue the
following:
ORDER
That the Complaints in Case Nos. 4-CO-20022 and 4-CO-30012 be, and
they hereby are, DISMISSED.
/s/ FRANCIS E. DOWD
Administrative Law Judge
Dated: March 23, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) We find it unnecessary to, and do not, adopt the Judge's comments
as to the comparative economic strength of Federal unions or the ability
of their representatives.
(2) See, for example, National Treasury Employees Union and National
Treasury Employees Union Chapter 204, 18 FLRA No. 36 (1985); National
Treasury Employees Union and National Treasury Employees Union Chapter
121, 16 FLRA 717 (1984), reversed sub nom. National Treasury Employees
Union v. FLRA, No. 85-1053 (D.C. Cir. Sept. 2, 1986), petition for
rehearing filed (October 17, 1986); and National Treasury Employees
Union, 10 FLRA 519 (1982), aff'd sub nom. National Treasury Employees
Union v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983).
(3) In a recent decision, American Federation of State, County, and
Municipal Employees, Local 2477, AFL-CIO, 22 FLRA No. 85 (1986),
petition for review filed sub nom. American Federation of State, County
and Municipal Employees v. FLRA, No. 86-1450 (D.C. Cir. Aug. 12, 1986),
the Authority adopted its Judge's finding that the union failed to
comply with its duty of fair representation. However, that case
involved a union's admitted refusal to provide legal representation to
an employee who had engaged in statutorily protected activity.
(4) National Treasury Employees Union, 16 FLRA 717 at 733; National
Treasury Employees Union, 10 FLRA 519 at 533-4.
(5) See National Treasury Employees Union v. FLRA, where the D.C.
Circuit stated (721 F.2d at 1406):
Section 7114(a)(1) . . . means exactly what it says.
Furthermore, there is absolutely nothing in the legislative
history or in any case law construing the Statute to support the
Union position (interpreting section 7114(a)(1) to codify the duty
of fair representation as it has developed in the private sector,
and by interpreting 'fair representation' to be synonymous with
'adequate representation.').
(6) The General Counsel filed a Motion to Correct Transcript
containing 103 proposed corrections. The Respondent filed opposition to
45 of the proposed corrections. To the extent that the General
Counsel's motion has been granted fully or partially, the transcript has
been corrected accordingly. To the extent that the motion has been
denied, the transcript remains unchanged. Counsel have been notified in
writing of my rulings with respect to each of the proposed corrections.
(7) If Cottle had said she could not do anything, I believe it is
more likely she would have given a reason; e.g., because you have a
nonmeritorious case or because you are a probationary employee.
(8) After Dixon filed an unfair labor practice charge on February 14,
1983, Counsel for Respondent instructed the Union to file a grievance
anyway and to request the VAMC to waive its untimeliness. The VAMC
denied the grievance as untimely on the ground that the current
Agreement did not apply to probationary employees (See G.C. Exh. Nos. 16
and 17).
(9) Webster's Third New International Dictionary (1971) defines
"arbitrary" as "depending upon choice or discretion . . . arising from
unrestrained exercise of the will, caprice, or personal preference, . .
. based upon random or convenient selection or choice rather than on
reason on nature . . . (as) given to willful irrational choices and
demands." Black's Law Dictionary (1979) defines "arbitrary" as "done
capriciously or at pleasure; without adequate determining principle;
not founded in the nature of things; nonrational; not done or acting
according to reason or judgment; depending upon the will alone, . . . "
In my opinion, a common thread running through the foregoing definitions
is that an arbitrary act is a willful act and, therefore an intentional
act. I see nothing in these definitions to equate arbitrariness with
negligence.
(10) See the following language in Vaca (at p. 194): "In a case such
as this, when (the grievant) supplied the Union with medical evidence
supporting his position, the Union might well have breached its duty had
it ignored (his) complaint or had it processed the grievance in a
perfunctory manner." Earlier (at p. 191) the Court used the word
"arbitrarily" as a modifier when it stated as follows: "Though we
accept the proposition that a union may not arbitrarily ignore a
meritorious grievance or process it in perfunctory fashion, we do not
agree that the individual employee has an absolute right to have his
grievance taken to arbitration regardless of the provisions of the
applicable collective bargaining agreement." The same language was later
repeated in Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 568-59
(1976) (which did not cite Lockridge), and in Electrical Workers v.
Foust, 442 U.S. 42, 47 (1979).
(11) Counsel for General Counsel relies on the Ruzicka and Dutrisac
line of cases in arguing that gross negligence constitutes the type of
"arbitrary" conduct needed to establish a breach of the duty of fair
representation. In her brief, counsel observed that the Dutrisac court
acknowledged that fair representation suits would weaken the financial
stability of unions, which might, in turn, impair their ability to
function effectively. Thus, the court stated: "For this reason, we
limit our holding that union negligence may breach the duty of fair
representation of cases in which the individual interest at stake is
strong and the union's failure to perform a ministerial act completely
extinguishes the employee's right to pursue his claim."
(12) Counsel for Respondent relies on the Lockridge and Hoffman line
of cases in arguing for an "intentional misconduct" standard.
(13) Griffin v. International Union, U.A.W., 469 F.2d 181, (4th Cir.
1972); Wyatt v. Interstate & Ocean Transport Co., 623 F.2d 888 (4th
Cir. 1980); Del Costello v. International Brotherhood of Teamsters, 510
F. Supp. 716 (D. Md. 1981).
(14) Ethier v. United States Postal Service, 590 F.2d 733 (8th Cir.)
(union not liable when steward filed grievance one day too late due to
misunderstanding of time requirement), cert. denied, 444 U.S. 826
(1979); Foust v. International Brotherhood of Electrical Workers, 572
F.2d 710, 714-16 (10th Cir. 1978) (evidence would support jury finding
that untimely filing of grievance was "arbitrary, unreasonable and a
breach of duty." 572 F.2d at 716), reversed on other ground, 442 U.S. 42
(1979); Coe v. United Rubber, Cork, Linoleum and Plastic Workers of
America, 571 F.2d 1349, 1350-51 (5th Cir. 1978) (careless or inadvertent
misnumbering of employee's grievance by union, affording employer
defense of untimeliness, held not "arbitrary"); Schum v. South Buffalo
Railway Co., 496 F.2d 328 (2d Cir. 1974) (union breached duty of fair
representation when, through "lack of diligence," it allowed time period
for filing appeal to second step of grievance procedure to lapse);
Baker v. Unit Parks Co., 487 F. Supp. 1313, 1315 (W.D. Okla. 1980)
(union breached duty by its "total failure to act" after being apprised
by employee of existence of grievance); Ruggirello v. Ford Motor Co.,
411 F. Supp. 758, 760-71 (E.D. Mich. 1976) (union breached duty when it
never instituted formal grievance on employee's behalf, relying instead
on informal adjustment methods, and grievance was ultimately rejected as
being untimely).
(15) NLRB General Counsel Memo No. 79-55, Labor Relations Yearbook --
1979, at 341-342 (1979).
(16) Id. at p. 2.
(17) General Truck Drivers, Chauffeurs and Helpers Union, Local No.
692, IBT (Great Western Unifreight System) and Marion Boyd Lee, 209 NLRB
No. 52. The current Board is also following the test that "something
more than mere negligence" is required. See Office and Professional
Employees International Union, Local No. 2, AFL-CIO, 268 NLRB No. 207
(Feb. 29, 1984).
(18) Local 18, International Union of Operating Engineers, 144 FLRA
1365 (1963).
(19) Brough v. United Steelworkers of America, 437 F.2d 748.
(20) For Authority decisions concerning Executive order 11491, see
National Treasury Employees Union, Chapter 202, 1 FLRA No. 104, 1 FLRA
910 (1979); and Federal Aviation Science and Technological Assn. Div.,
NAGE, 2 FLRA No. 103, 2 FLRA 802 (1982).
(21) In Tidewater there was a brief discussion of negligence and
perfunctoriness but the case really turned on the fact the union acted
in bad faith in accord with its well-entrenched policy of not initiating
grievances for nonunion members. Absent such evidence of bad faith, it
is a matter of speculation as to whether the Authority would have
adopted the General Counsel's request to use the broad Ruzicka test.
(22) Also misplaced is the General Counsel's reliance on Overseas
Education Association, 11 FLRA No. 75, 11 FLRA 377 (1983), a case in
which the Union refused to assist an employee, who was seeking
information about a grievance, because of his nonmembership in the
Union. Because this case involved discriminatory conduct, and not
negligence, it is inapposite.
(23) But, see Journeyman Pipe Fitters Local 392 v. NLRB, 712 F.2d 225
(6th Cir. 1983), a recent decision by the same Circuit Court which
authored Ruzicka. The Court found that a union which failed to maintain
a list of job applicants as a means of referring employees through its
exclusive hiring hall did not breach its duty of fair representation.
The Court noted an absence of evidence of "hostility," "discriminatory
motive," lack of "good faith," and concluded that, at worst, Sullivan
(the business agent) exercised poor judgment. The Court then said:
"Negligence, poor judgment or ineptitude are insufficient, standing
alone, to establish a breach of the duty of fair representation. NLRB
v. American Postal Workers, Union, 618 F.2d 1249, 1254 (8th Cir. 1980)."
(24) Accordingly, I reject Respondent's argument, supra, that some
significance should be placed in the fact that Section 7114(a)(1) does
not use the word "arbitrary." Counsel cites no legislative history to
support the contention that the phrase "without discrimination" in
Section 7114(a)(1) was intended by Congress to narrow the Vaca standard
in any way. Moreover, Section 7114(a)(1) entitles a union which has
been accorded exclusive recognition the right to act for all unit
employees. In Humphrey v. Moore, supra, 375 U.S. 335, 342, the Supreme
Court noted that the duty of fair representation has its implied
statutory basis in the union's role as "exclusive" bargaining agent with
"exclusive power to represent all employees of a bargaining unit."
(25) The Supreme Court has recognized that a union has such
discretion. See, for example, Vaca supra, at pp. 191-193.
(26) Excluded from this category is union conduct or inaction
resulting from gross or mere negligence, an honest mistake, ineptitude,
poor judgment or carelessness.
(27) Both VAMC and the Union demonstrated their ignorance of the
applicable grievance procedure. Thus, the suspension memo to Crawford
(G.C. Exh. No. 8) erroneously instructed him that he had to file his
grievance within 15 calendar days. Actually the new Master Agreement
then in effect provided a grievant with 30 days in which to file. Thus,
when Weaver received Doherty's May 26 memo she (or Crawford) still could
timely file at Step One. It's not clear from this record whether
Weaver's decision not to refile at Step One was influenced by her
unfamiliarity with the new contract which was not distributed until
March (see G.C. Exh. No. 2 Attachment) or whether she may have been
misled by the agency's erroneous instructions as to the 15-day filing
period.
(28) In view of this decision, I do not have to decide whether a
Union may violate its duty of fair representation by refusing to file a
grievance even though the Authority might later conclude that the
grievance procedure is inapplicable because Congress did not intend
grievance and arbitration procedures negotiated under the Statute to
cover grievances concerning the termination of probationary employees.
See U.S. Department of Labor, Labor-Management Relations Administration,
Cleveland, Ohio, 13 FLRA No. 109 (Jan. 16, 1984) in which the Authority
apparently acquiesced in the Circuit Court's decision in United States
Department of Justice, Immigration and Naturalization Service, 709 F.2d
724 (D.C. Cir. 1983).
(29) Assuming, arguendo, that this record would support a factual
finding that Respondent failed and refused to file a grievance for
Dixon, I would nevertheless be unable, on this record, to impute to
Respondent an intent to deliberately and unjustifiably refuse to
represent Dixon in violation of its duty of fair representation.