[ v23 p686 ]
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.