[ v24 p352 ]
24:0352(39)CO
The decision of the Authority follows:
24 FLRA No. 39
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL 39, AFL-CIO
Respondent
and
ROY G. EVANS, AN INDIVIDUAL
Charging Party
Case No. 4-CO-20034
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist from those practices and take
certain affirmative action. The Respondent and the General Counsel
filed exceptions to the Judge's Decisions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision, the exceptions to that Decision, and the entire
record, the Authority hereby adopts the Judge's findings, conclusions
and recommended Order as modified.
In National Federation of Federal Employees, Local 1453, 23 FLRA No.
92 (1986), the Authority addressed for the first time the nature of an
exclusive representative's duty of fair representation where union
membership is not a factor. The Authority set forth the following
standard (slip op. at 6):
(W)here union membership is not a factor, the standard for
determining whether an exclusive representative has breached its
duty of fair representation under section 7114(a)(1) is whether
the union deliberately and unjustifiably treated one or more
bargaining unit employees differently from other employees in the
unit. That is, the union's actions must amount to more than mere
negligence or ineptitude, the union must have acted arbitrarily or
in bad faith, and the action must have resulted in disparate or
discriminatory treatment of a bargaining unit employee.
Though the Judge made his Decision prior to the issuance of our
recent case, the basic standards he applied in making his final
determination are the same. Applying our standards to the circumstances
of this case, we find that the General Counsel has established that the
Union's actions viloated the Statute.
In agreement with the Judge, we conclude that the Union's actions
misled Evans into thinking that the Union was going to file the
grievance, and Evans' reliance on the Union caused him to lose the right
to file a timely grievance. We agree with the Judge that the Union's
actions amounted to more than mere negligence and conclude that the
Respondent deliberately and unjustifiably failed to file a grievance on
behalf of Evans. We further conclude, in the absence of a showing to
the contrary, that the Union treated Evans differently from other unit
employees by failing to file his grievance. By this conduct, the Union
breached its duty of fair representation as required by section
7114(a)(1) of the Statute and thereby violated section 7116(b)(1) and
(8) of the Statute. Compare National Federation of Federal Employees,
Washington, D.C., 24 FLRA No. 37 (1986). That case involved an employee
who requested his union to provide him with a representative at a
hearing before the Merit Systems Protection Board (MSPB). While the
union in that case had initially agreed to provide representation to the
employee, the union failed to appear at the hearing, which had been
rescheduled several times. Based on the record in that case, we found
that the union's failure to appear at the hearing constituted nothing
more than mere negligence or miscommunication. Moreover, unlike here,
the union's failure to represent the employee in that case did not
extinguish the employee's rights.
We also agree with the Judge that the circumstances of this case
weigh in favor of the remedy he recommended. See Griffin v. UAW, 469
F.2d 181 (4th Cir. 1972); Dutrisac v. Caterpillar Tractor Co., 749 F.2d
1270 (9th Cir. 1983). We have modified the Order to conform to our
findings in this case. We have also modified the Notice to conform with
like notices where similar violations have been found.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the International Association of Machinists and Aerospace Workers, Local
39, AFL-CIO, shall:
1. Cease and desist from:
(a) Failing to fairly represent Roy G. Evans, or any other unit
employee, as required by section 7114(a)(1) of the Federal Service
Labor-Management Relations Statute.
(b) In any like or related manner interfering with,
restraining, or coercing any employee in the exercise of their
rights by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Fairly represent all employees in its unit of exclusive
recognition, as required by section 7114(a)(1) of the Statute.
(b) Seek permission from the Naval Air Rework Facility,
Norfolk, Virginia, to file a late grievance concerning the May 27,
1982 suspension of Roy G. Evans, and pursue the grievance with
good faith and all due diligence.
(c) If the Naval Air Rework Facility, Norfolk, Virginia,
refuses permission to file a late grievance concerning the May 27,
1982 suspension of Roy G. Evans, pay Evans the amount of earning
lost during the period of his suspension (June 7, 1982 through
June 11, 1982).
(d) Post at its business offices and its normal meeting places,
including all places where notices to members, and to employees of
the Naval Air Rework Facility, Norfolk, Virginia, are customarily
posted, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the President of International
Association of Machinists and Aerospace Workers, Local 39, AFL-CIO
and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and
all other places where Union notices to members and unit employees
are customarily posted. Reasonable steps shall be taken to ensure
that such Notices are not altered, defaced, or covered by any
other material.
(e) Submit appropriate signed copies of such Notice to the
Commander of the Naval Air Rework Facility, Norfolk, Virginia, for
posting in conspicuous places where unit employees are located,
where they should be maintained for a period of 60 consecutive
days from the date of the posting.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C. December 5, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier, III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
We will not fail to fairly represent Roy G. Evans, or any other unit
employee, as requried by section 7114(a)(1) of the Federal Service
Labor-Management Relations Statute.
We will not in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
We will fairly represent all employees in our unit of exclusive
recognition as required by section 7114 (a)(1) of the Federal Service
Labor-Management Relations Statute.
We will seek permission from the Naval Air Rework Facility, Norfolk,
Virginia, to file a late grievance concerning the May 27, 1982
suspension of Roy G. Evans, and pursue the grievance with good faith and
all due diligence.
We will, if the Naval Air Rework Facility, Norfolk, Virginia, refuses
permission to file a late grievance concerning the May 27, 1982
suspension of Roy G. Evans, pay Evans the amount of earnings lost during
the perod of his suspension (June 7, 1982 through June 11, 1982).
(Labor Organization)
Dated: . . .
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region IV, Federal Labor Relations Authority, whose address is
: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367, and
whose telephone number is: (404) 347-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 4-CO-20034
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS LOCAL 39, AFL-CIO
Respondent
and
ROY G. EVANS, AN INDIVIDUAL
Charging Party
Barbara Liggett, Esq.
For the General Counsel, FLRA
Coet Combs
For the Respondent
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. Section 7101 et seq, and the Rules and Regulations of the Federal
Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et
seq.
The Charge in Case No. 4-CO-20034 was filed on August 26, 1982, by
Roy G. Evans, an individual, against the International Association of
Machinists and Aerospace Workers, Local 39, AFL-CIO (hereinafter
referred to as the Union or Respondent). A First Amended Charge was
filed on November 18, 1982. On December 10, 1982, the General Counsel
of the FLRA, by the Director of Region IV, issued a Complaint and Notice
of Hearing.
The Complaint alleged that Respondent violated Sections 7116(b)(1)
and (8) of the Statute by failing to fairly represent Evans in a
grievance procedure. An Amended Complaint issued August 4, 1983, added
that Respondent acted arbitrarily, capriciously and in a grossly
negligent manner. Respondent filed a Motion for Summary Judgment on
January 31, 1983, but the Chief Administrative Law Judge of the
Authority denied the motion on March 10, 1983. Respondent filed an
Answer denying that it had violated the Statute.
A hearing was held before the undersigned, in Norfolk, Virginia at
which Respondent and the General Counsel of the FLRA appeared, adduced
evidence, and examined and cross-examined witnesses. Parties were given
an opportunity to argue orally and briefs were filed by Respondent and
the General Counsel of the FLRA which have been carefully considered.
Based upon the record, my observation of the witnesses and their
demeanor and from my evaluation of the evidence, I make the following:
Findings of Facts
The Union is the exclusive collective bargaining representative of a
unit of employees at the Naval Air Rework Facility, Norfolk, Virginia
(hereinafter called NARF). The collective bargaining agreement between
the Union and NARF, which became effective on or about June 29, 1978,
provides for a grievance procedure in Article XXV. Evans, a member of
the bargaining unit represented by the Union, worked as a machinists
from April 20, 1981, until April 5, 1983, when he was removed from
employment.
On April 6, 1982, NARF issued a notice of proposed suspension to
Evans for unexcused tardiness, sleeping on duty, and delay in carrying
out instructions of a supervisor. The Union's Chief Steward, Johnnie
Rascoe, prepared a memorandum dated April 21, 1982, to the Power Plant
Division Director, Emory Dixon, which denied these charges and requested
a meeting. The memorandum also requested Rascoe's attendance at all
meetings concerning the proposed suspension.
NARF granted a hearing on the proposed suspension, to be held on
April 23, 1982. The afternoon or morning prior to the hearing, another
Union steward, Mr. Scott, informed Evans that Rascoe was on leave and
that he (Scott) would represent him at the hearing. When Scott was
unable to present the facts correctly at the hearing, Evans was granted
permission to represent himself orally and with written statements and
documents.
By letter dated May 27, 1982, NARF informed Evans that it reduced the
suspension from eight to five days and sustained the charges of
unexcused tardiness and delay in carrying out instructions of a
supervisor. An attachment to the letter stated that Union members have
thirty calendar days after receipt of the letter to file a grievance.
/1/ Evans received the letter on June 4, 1982, the Friday before the
Monday when his suspension was to begin; thus, the deadline for filing
the grievance was July 4, 1982.
Upon receipt of the notice of the decision to suspend, Evans informed
Rascoe that he wanted to appeal. Rascoe replied that they would take
care of the matter after the suspension. Evans served his suspension
from June 7 through June 11, 1982, and was out sick from June 14 through
June 18, 1982. On or about June 21 or 22, 1982, Evans saw Rascoe
talking with another employee and asked him to stop at his work area to
discuss the grievance. He made this request on several subsequent
occasions, but Rascoe never stopped by. Evans later spoke with his
Union steward, Lloyd Pickett, and asked him to make sure that the appeal
had been filed, and if not, to file it. Pickett replied that he would
check.
On or about July 6 or 7, 1982, Evans saw Rascoe during a break and
asked him about the appeal. Rascoe said "I have been meaning to talk to
you on that," and asked about the letter of suspension. Rascoe counted
the thirty-two days that had passed and acknowledged that it was too
late to file a grievance. Evans was limited in his ability to contact
Rascoe because Evans could not take off from work to find him, and
because Rascoe worked unusual hours because of his Union activities.
/2/
NARF informed Evans in a notice of decision on proposed removal dated
March 30, 1983, that he would be removed from employment, effective
April 5, 1983. Evans' previous disciplinary record, including the
suspension presently at issue, was considered in this decision.
Discussion and Conclusions
The record establishes that although Evans repeatedly sought
assistance from the Union in appealing his suspension, the Union failed
to file a timely formal grievance on his behalf. In addition, the
Union's assurances that it would handle the matter misled Evans so that
he could reasonably conclude that the Union would file a grievance on
his behalf. The General Counsel argues that illegal motivation or other
intentional misconduct is not necessary to establish a breach of the
duty of fair representation. I disagree with this contention, but
conclude that Respondent did breach its duty of fair representation, in
violation of Sections 7116(b)(1) and (8) of the Statute.
In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court established
that a union breaches its duty of fair representation when its conduct
towards a member of its collective bargaining unit is arbitrary,
discriminatory or in bad faith. In declining to broaden the meaning of
this standard, I adopt Judge Dowd's reasoning in National Federation of
Federal Employees, Local 1453, OALJ-83-52, Case No. 4-CO-20022, March
23, 1984, pending before the authority (hereinafter NFFE). In NFFE,
Judge Dowd found that the Union had not failed in its duty to fairly
represent an employee because there was no evidence that the union
"deliberately and unjusitifably" failed or refused to refile a
grievance.
Absent the necessity of such a showing of intentional misconduct, the
burden on labor organizations would be unreasonable. Union officials
are not professional advocates and should not be held to the same
standard as attorneys. See Tidewater Virginia Federal Employeees Metal
Trade Council/International Association of Machinists, Local No. 44, 8
FLRA 217, 231 (1982); American Federation of Government Employees,
AFL-CIO, Local 987, 3 FLRA 715, 721 (1980). In the public sector, in
particular, where unions cannot compel the payment of dues, a broad
standard with respect to the duty of fair representation would imperil
the very existence of labor organizations and ultimately defeat the
purposes and policies of the Statute. Employees dissatisfied with the
quality of a union's representation can express this dissatisfaction by
voting for new union officers or by decertifying the union. In
addition, federal employees have the right to present a grievance on
their own behalf under Section 7121(b)(3)(B) of the Statute. See NFFE,
supra.
In the instant case, however, Respondent's unexplained failure to
file Roy G. Evans' grievance creates an inference of intentional
misconduct. Evans approached Chief Steward Rascoe, immediately after
receiving the letter of suspension requesting that a grievance be filed
and Rascoe reassured Evans but postponed further discussion until after
the suspension. After returning to work more than two weeks later,
Evans asked Rascoe on several occasions to see him at his work station,
so they could discuss the grievance. Rascoe never contacted Evans. In
addition, Evans asked another Union steward to make sure the grievance
had been filed and, if not, to file it. That steward too did not
re-contact Evans. Finally, approximately two weeks after returning to
work and continuously seeking Union assistance, Evans confronted Rascoe,
who acknowledged that it was then too late to file the grievance.
Under these circumstances, absent evidence to rebut the clear
inference of intentional misconduct, I must conclude that Respondent's
agents intentionally chose to ignore Evans' requests. The record fails
to establish that ignorance of the applicable grievance procedure
explains the Union's idleness, as it did in NFFE, supra p. 4, at 24, fn.
22. /3/ In view of Evans' repeated attempts at securing assistance over
approximately a four-week period, Rascoe is presumed to have known that
the time limit for filing the grievance was approaching, even if he did
not remember the exact date. Yet, Rascoe failed to inquire about the
date until it was too late, even though Evans, on a number of occasions,
sought to talk to Rascoe about the grievance. Further, I reject the
contention that Rascoe simply forgot to stop by Evans' work area after
each attempt by Evans at consultation. After returning to work, Evans
approached Rascoe several times during a two-week period. Where it is
implausible, as here, that the Union inadvertently mishandled a
grievance, intentional misconduct should be imputed to the Union. /4/
In light of the foregoing, I conclude the Union breached its duty of
fair representation under Section 7114(a)(1) of the Statute by handling
Evans' grievance in an arbitrary and discriminatory manner and,
accordingly, it violated Sections 7116(b)(1) and (8) of the Statute.
Remedy
The General Counsel urges that Respondent should be ordered to cease
and desist its illegal activities, and to take affirmative action to
make Evans whole for wages lost during his period of suspension. The
governing principle under Vaca v. Sipes, 386 U.S. at 197, is to
apportion liability between the employer and the union according to the
damages caused by the fault of each. Unlike the court proceeding in
Vaca, this proceeding does not resolve Evans' charges against NARF.
Since NARF'S liability is uncertain due to the Union's mishandling of
the girevance, the uncertainity must be resolved against the Union.
Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 348 (5th Cir. 1980);
see also Service Employees International Union, Local No. 579 AFL-CIO,
(Beverly Manor Convalescent Center), 229 NLRB 692 (1977); Contra
Service Employees International Union, Local 556, AFL-CIO OALJ-83-59,
Case No. 8-CO-37 and 38, February 28, 1983, pending before the
Authority. A party should not benefit from its own misconduct to the
detriment of another. Accordingly, it is recommended that the Authority
order Respondent to seek permission from NARF to file a late grievance
and pursue the grievance in good faith and with all due diligence; /5/
however, if NARF refuses to grant such permission, it is recommended
that the Authority order Respondent to make Evans whole for the wages
lost during his period of suspension.
Based on the foregoing, it is recommended that the Authority adopt
the following:
ORDER
Pursuant to Section 7118(a)(7) of the Statute, it is ordered that the
International Association of Machinists and Aeorspace Workers, Local 39,
AFL-CIO:
1. Cease and desist from:
(a) Affording on an arbitrary basis differing standards of
employee representation to employees in units of exclusive
representation.
(b) Interfering with, restraining or coercing any employee in
the exercise by the employee of any right under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Represent all bargaining unit employees on an equal basis
and with the same standard of representation.
(b) Seek permission from the Naval Air Rework Facility,
Norfolk, Virginia (NARF), to file a late grievance concerning the
May 27, 1982 suspension of Roy G. Evans and pursue the grievance
with good faith and all due diligence.
(c) If NARF refuses permission to file a late grievance
concerning the May 27, 1982 suspension of Roy G. Evans, pay Evans
the amount of earnings lost during the period of suspension, June
7, 1982 through June 11, 1982.
(d) Post at the Naval Air Rework Facility, Norfolk, Virginia,
copies of the attached notice marked "Appendix" on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by a responsible Union official
and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices are customarily posted. Reasonable
steps shall be taken by the Union to ensure that such notices are
not altered, defaced, or covered by any other material.
(e) Pursuant to 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IV, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: October 5, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In its answer to the complaint, Respondent asserted that the time
period for filing a formal grievance is three days from the date of the
informal hearing. At the hearing, the Union Business Representative
admitted that the grievance processing information included in Evans'
notice of suspension was correct.
(2) I reject Repsondent's contention that Evans never approached it
for representation after the April 23, 1982 hearing. Respondent's only
evidence on this point is testimony by Russell Hurdle, Business
Representative for District Lodge 74 of the Machinists Union,
Repsondent's representative in unfair labor practice cases. According
to Hurdle, Rascoe stated that he tried unsuccessfully on several
occasions to contact Evans because "he wanted to make sure that the
employee was not disturbed," and "to determine what he wanted to do with
this case," and that Evans was never working. These heresay statements,
made during the investigation of this case, are insufficient to rebut
Evans' firsthand detailed account of the events. In addition,
applications for leave, in evidence, reveal that Evans took no annual or
sick leave between June 21 and July 1, 1982.
(3) At the hearing, the only evidence adduce by Respondent was
heresay testimony that Evans never approached Rascoe after the hearing.
In its brief, however, Respondent argues that assuming, arguendo, that
Evans did seek assistance, Rascoe forgot the deadline.
(4) See National Federation of Federal Employees, Washington, D.C.,
OALJ-84-84, Case No. 4-CO-20019, at pg. 8, July 5, 1984, pending before
the Authority, wherein the Administrative Law Judge concluded that the
union's failure to attend a Merit System Protection Board hearing would
violate the duty of fair representation absent a showing of good cause
to excuse or explain the absence.
(5) In Tidewater Virginia Federal Employees Metal Trade
Council/International Association of Machinists, Local No. 44, 8 FLRA at
218, the Authority struck down, in part, such an order to seek
permission to file a late grievance, but did not indicate that this
relief would always be inappropriate.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
We will not afford on an arbitrary basis differing standards of
employee representation to employees in units of exclusive
representation.
We will not interfere with, restrain, or coerce any employees in the
exercise of any right under the Federal Service Labor-Management
Relations Statute.
We will represent all bargaining unit employees on an equal basis and
with the same standard of representation.
We will seek permission from the Naval Air Rework Facility, Norfolk,
Virginia (NARF), to file a late grievance concerning the May 27, 1982
suspension of Roy G. Evans and pursue the grievance with good faith and
all due dilgence.
We will pay Roy G. Evans the amount of earnings lost during the
period of suspension, June 7, 1982 through June 11, 1982, if NARF
refuses permission to file a late grievance concerning Evans' May 27,
1982 suspension.
(Agency or Activity)
Dated: . . .
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IV,
whose address is: 1776 Peachtree Street, N.W., Suite 501 - North Wing,
Atlanta, Georgia 30309 and whose telephone number is: (404) 881-2324.