43:0575(50)CO - - AFGE Local 1457 and Gwen Horn - - 1991 FLRAdec CO - - v43 p575
[ v43 p575 ]
The decision of the Authority follows:
43 FLRA No. 50
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1457, AFL-CIO
GWEN HORN, AN INDIVIDUAL
DECISION AND ORDER
December 19, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This 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 did not file an opposition to the exceptions.
The complaint alleged that the Respondent violated section 7116(b)(1) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed and refused to comply with section 7114(a)(1) of the Statute by failing to file certain grievances on behalf of the Charging Party after assuring her that it would file the grievances. The Judge found that the Respondent had not violated the Statute as alleged, and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we conclude that the Respondent did not violate the Statute as alleged. Accordingly, we adopt the Judge's findings, conclusions and recommendations consistent with this decision.
The Respondent is the exclusive representative of a unit of employees that includes the U.S. Army Information Systems Command (USAISC), which operates a printing plant employing approximately 11 bargaining unit employees. The USAISC is located at the Presidio in San Francisco, California. As there is no Union steward in the printing plant, printing plant employees must contact Union officials outside the plant to deal with employment-related problems.
Allen Perdue is the president of the Union and Kevin Blackwell is the vice president for matters arising within USAISC. There is no strict division of duties, however, and vice presidents Sherman Taylor and Greg Hudson also have represented printing plant employees.
As summarized by the Judge, the record indicates that the printing plant was a troubled work site, with problems involving allegations of interpersonal and possibly racial animosities. In addition, the record contained references to drunken behavior by a management official and to illegal printing for private purposes. The Charging Party, Horn, made "whistleblower" allegations of "'cheating on reports, inaccurate production units and cost, false reporting of supply usage . . . and security violations.'" Judge's decision at 3.
The Judge described a complex factual situation that surrounded Charging Party Horn's unfair labor practice allegations, which include five failures by the Union between late March and the end of May 1989 to file grievances on Horn's behalf, to her detriment. In each instance, it is alleged that the Union had promised to file a grievance, that Horn had relied on the Union's promise, and that the Union's failure to file a grievance as promised extinguished Horn's right to file a timely grievance on her own behalf, which would have been permitted by the collective bargaining agreement.
Horn was hired in February 1987 at grade GS-5, and eventually was promoted to GS-7 in July 1988. She talked to Perdue, Hudson, Taylor and Blackwell at various times between 1988 and February 1989 about her concerns over a "delay in her promotion, being downgraded on a performance appraisal, and 'being moved around.'" Id. Blackwell, Taylor, Horn, and co-worker Eric Robinson met with Alvin Chan, supervisor of the printing plant, on March 22, 1989, about some of these concerns.
Over the course of her employment, Horn observed what she believed to be a number of illegal acts concerning the operation of the printing plant. She discussed her concerns with Perdue, who suggested she seek assistance from Hudson in presenting her complaints to the appropriate authorities. On April 12, 1989, she signed a one-sentence designation of Hudson as her "'union representative.'" Id. at 5. Although Horn had discussed other issues with Hudson, she testified that she did not believe he was being designated to represent her for anything except the presentation of charges of official misconduct. Hudson, on the other hand, was under the impression that Horn also wanted him to assist her concerning her performance appraisal.
As Horn had been hired as a GS-5 in February 1987, she asserted that she was due to be promoted to GS-7 in February 1988. However, she did not receive the promotion until July 1988. Beginning in October 1988, Horn began complaining to the Union over the delay in her promotion to GS-7. In January 1989 and thereafter, the Union became active in dealing with management over this and related issues, including the initiation of meetings with management that involved Horn and employee Robinson, who had similar concerns. Horn did not receive a promotion to GS-9 on the July 1989 anniversary of her promotion to GS-7. She finally received her promotion in December 1989. The first allegation of the complaint involves Perdue's alleged promise to Horn in late March or early April 1989 that he would file a grievance over management's failure to grant her a career-ladder promotion from GS-7 to GS-9.
The next allegations concern letters of counselling that Horn received from supervisor Chan. According to credited testimony, Horn called Union vice president Hudson on April 13, 1989, the day she received the first letter, which was dated April 11. Hudson investigated the complaint, interviewing Horn as well as several others. Horn testified that she went to Perdue and asked him what he could do about the letter, and that Perdue told her he would file a grievance for her. According to the Judge, Perdue did not deny any of this directly. However, Perdue testified that Horn did not ask him to represent her personally, and that his subordinate Union officials do most of the representation of individual employees. He testified that Horn called him in the middle of April about her dissatisfaction with Hudson's representation efforts on her behalf.
On April 17, Horn gave Hudson a statement about her observations of official mismanagement of the printing plant. She also met with Blackwell about other matters on that date. Subsequently, on April 21, Perdue wrote to the commanding officer of the Presidio concerning official time to represent whistleblowers. On that same day, the Union asked for a meeting between Union representatives Taylor, Blackwell and Hudson, employees Horn and Robinson and management representatives concerning annual leave, sick leave, "harassment at the work site, and job descriptions." Id. at 6. In preparation for the meeting, Horn gave Taylor a copy of her April 11 letter of counselling.
On April 25, Chan issued a second letter of counselling to Horn, charging her with unsatisfactory job performance and stating that a copy of the letter would be placed into Horn's personnel records.
Sometime in April, Hudson told Horn not to worry about the letters of counselling "because eventually she would be protected under the 'Whistleblowers Act'" (Whistleblowers Protection Act of 1989). Id. at 8. More meetings were held between management and the Union, Horn and Robinson over performance appraisals and a number of other workplace issues. On May 2, vice president Taylor wrote to the Director of the Agency, requesting that all "negative material" be removed from Horn's and Robinson's personnel files. Id.
Chan issued a third letter of counselling to Horn on May 4. It repeated the allegations made in the April 25 letter, and warned that further unsatisfactory performance could merit disciplinary action, but it did not state that a copy of the letter would be put in Horn's personnel folder.
Based on his credibility findings, the Judge determined that Horn went to Perdue after receiving the three letters of counselling. However, he concluded that she had not specifically asked Perdue to represent her. Rather, the Judge found that Perdue had said that he would do whatever was necessary to get the problems resolved. More specifically, the Judge found that Horn had given Perdue the letters of counselling, that he had taken them and in effect said that he would take care of them. In addition, the Judge found that the Union had a practice of requiring a signed designation of a representative, and that Horn had not signed such a designation to have Perdue represent her. He further noted, however, that Perdue never told Horn that this was necessary.
Horn did not receive her scheduled performance appraisal in May. The complaint alleged that Perdue also had promised to file a grievance over this matter. On June 12, Perdue wrote a letter to Union members informing them that the Union had filed a "Class Action Discrimination Complaint" on behalf of all members who had not received annual performance appraisals for three years. General Counsel Exh. 7. Horn recalled that she "may have" called Perdue in regard to the letter. Judge's decision at 10. However, the Judge noted that Horn acknowledged she did not ask Perdue to file grievances, but testified that he had volunteered to do so. He noted further that Horn's testimony, as well as that of unit employee Robinson, "was to the effect that Perdue was always promising to do something." Id. at 11. According to Robinson's credited testimony, Perdue had promised "to file whatever was necessary to get their problems resolved." Id.
III. Administrative Law Judge's Decision
The Judge found that under the standards set out in Authority decisions, the Union had not violated the duty of fair representation, and recommended that the complaint be dismissed.
The Judge noted that the duty of fair representation is set out in section 7114(a)(1) of the Statute, which requires an exclusive representative to represent the interests of all employees it represents "without discrimination . . . ." The Judge stated the Authority's standard for determining whether the duty of representing employees without discrimination has been violated as "whether the union deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit." National Federation of Federal Employees, Local 1453, 23 FLRA 686, 691 (1986) (NFFE I). To find that this standard has been violated, "the Union's actions must amount to more than mere negligence or ineptitude[.]" Id.
The Judge noted that the Authority has further defined the standard by inferring that a union's failure to file a grievance was intentional where the circumstances made it "implausible" that the union's mishandling of the grievance was inadvertent and where it failed to rebut this "clear inference." International Association of Machinists and Aerospace Workers, Local 39, AFL-CIO, 24 FLRA 352, 353 (1986) (IAM). However, in contrasting IAM to this case, the Judge called the circumstances underlying the inference in IAM "reasonably compelling: the grievant had made contact with the union's representative several times during the filing period, attempting to discuss the grievance with him, but the representative had avoided him." Judge's decision at 16.
The Judge cited another Authority decision as putting a "potentially relevant gloss" on the "'deliberately and unjustifiably'" standard. In National Federation of Federal Employees, Washington, D.C., 24 FLRA 320 (1986) (NFFE II), the Authority held that a union's failure to represent an employee because of "internal [u]nion disorganization" and "lax administration" would not, absent independent evidence that it acted "arbitrarily or in bad faith," warrant the conclusion that it "deliberately and unjustifiably treated [the employee] differently from other bargaining unit employees." Judge's decision at 16-17, quoting NFFE II at 324.
The Judge dismissed for lack of sufficient evidence the allegations involving the failure to file grievances over Horn's failure to be promoted to GS-9 and her failure to receive her May 1989 performance appraisal. He found that there was no evidence that Perdue promised to take any specific action at any identifiable time regarding the promotion, and that the complaint alleged that the promise was made in April or May, even though Horn would not have been eligible for promotion until July. He found that at that time, Horn could not have relied on an "open-ended promise in April . . . without at least informing him that the time was now ripe[ ]" and that Horn's "equivocal testimony concerning a promise to file a grievance over her failure to receive her May 1989 performance appraisal is insufficient on its face to sustain that allegation[.]" Id. at 17.
With regard to Perdue's alleged failure to file grievances over the three letters of counselling that Horn received, the Judge found that Perdue did not promise specifically to file grievances. However, he also concluded that this finding does not necessarily dispose of these allegations. Thus, he stated that arguably "under some reading of the 'deliberately and unjustifiably' standard, Perdue breached the Union's duty by leading Horn to believe that he would take some timely and appropriate action to protect her rights and then failing to do so." Id. (emphasis in original).
While the Judge addressed Perdue's responsibility in fulfilling any promises made by him, he stated that "[i]t is the Union, not Perdue as an individual, that has the duty to represent unit employees." Id. at 19. The Judge noted that the Union was actively attempting to resolve a series of problems affecting Horn's working environment in the printing plant. He concluded that Perdue had reason to believe that Horn's problems were being dealt with, especially in view of some of the attempts by the Union's vice presidents to deal with the counselling letters she had received. In view of this knowledge, the Judge stated that "even if it would have been prudent for [Perdue] to file grievances over each of the letters," he could not find that in failing to do so the Union had acted "arbitrarily or in bad faith." Id. at 19, citing NFFE I, 23 FLRA at 691. Further, he found no evidence of hostility or intention to discriminate, and in light of Perdue's knowledge of the ongoing efforts on Horn's behalf, the Judge also concluded that there is no basis for finding a reckless indifference to her interests, and that, therefore, Perdue's conduct did not constitute a breach of the Union's duty of fair representation
In examining the conduct of other Union officials, the Judge concluded that "the Union made substantial efforts" to protect Horn's interests. Judge's decision at 20. Specifically, the Judge referred to the series of attempts by the Union to clear up Horn's work problems, including the letters of counselling, and found that "[n]o great significance should be attached to the fact that the Union did not use the formal grievance procedures to seek a remedy." Id. Rather, he stated that the failure to use the grievance procedure "is not to be viewed in isolation[,]" because the Union "was attempting to sort out the issues and to get to the bottom of the general problem." Id. In particular, he noted that the Union took "effective action" in response to the April 25 letter and that the May 4 counselling letter was a "positive response to the Union's efforts." Id. at 20-21. The Judge considered whether the Union nevertheless should have filed formal grievances or at least informed Horn that she had a right to file a grievance on her own behalf. He concluded that the Union was not required to take either of those actions. Finally, he concluded that the record was insufficient to conclude that the Union treated Horn differently from other employees in the unit, citing NFFE I, 23 FLRA at 691-92. For these reasons, the Judge recommended that the complaint be dismissed.
IV. General Counsel's Exceptions
In addition to contesting several of the factual findings on which the Judge based his decision, the General Counsel disputes the application of the law to the facts as found by the Judge, as well as aspects of the Judge's analysis.
Specifically, the General Counsel excepts to the Judge's failure to find that Horn had asked Perdue to represent her with regard to the letters of counselling and that Perdue had promised to represent Horn and to file grievances on her behalf; to the Judge's consideration of the Union's practice regarding signed designations of representatives; and to the Judge's creation of various defenses for the Union. Thus, the General Counsel contends that Perdue repeatedly promised to file grievances for Horn over the three counselling letters, that Horn relied on those promises, and that the Union failed to represent her, to her detriment. The General Counsel also asserts that the Judge erred "in excusing Perdue's . . . failure to file grievances on behalf of Horn because other Union representatives were also involved in representation on other matters." General Counsel's brief in support of exceptions at 7. Moreover, the General Counsel argues that "the Union has never given any explanation for why the grievances were not filed . . . ." Id. at 8.
The General Counsel does not address the Judge's dismissal of the allegations regarding the Union's alleged failure to file grievances over the allegedly overdue promotion and the tardy performance appraisal.
V. Analysis and Conclusions
In the absence of exceptions to the Judge's recommended dismissal of the allegations regarding the Union's failure to file grievances over the overdue promotion and late performance appraisal, we adopt the Judge's recommendation to dismiss those allegations of the complaint, for the reasons he stated. For the reasons set forth below, we also agree with the Judge's recommendation that the remaining allegations of the complaint be dismissed.
We have carefully reviewed the record and the Judge's credibility resolutions. Insofar as the General Counsel's exceptions take issue with the Judge's credibility resolutions and the findings based on those resolutions, we conclude there is insufficient basis to overturn those findings. The Judge's credibility resolutions are affirmed.(1) Accordingly, we must determine whether, on the basis of the evidence established by credited testimony, the Union breached its duty of fair representation because it failed to file grievances over the three counselling letters.
As noted by the Judge, the Authority first addressed the question of whether a union violated the duty of fair representation required by section 7114(a)(1) in NFFE I. The standard applied in that and subsequent cases is "whether the union deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit." 23 FLRA at 691. See also, American Federation of Government Employees, Local 3529, AFL-CIO, 31 FLRA 1208 (1988) (AFGE). To find that this standard has been violated, "the union's actions must amount to more than mere negligence or ineptitude, [and] the union must have acted arbitrarily or in bad faith . . . ." Id. In NFFE I, the union failed to notify an employee that a grievance had been returned for refiling. The union took no further action and the employee lost the opportunity to grieve. However, the Authority found that there was no showing that the union's action constituted other than mere negligence or miscommunication, and dismissed the complaint.
In contrast, in IAM, 24 FLRA 352, the Authority found that a union misled an employee into thinking it was going to file a grievance by reassuring the employee that it would take care of the matter, but ignoring repeated attempts by the employee to have the union file a grievance. The Authority found that the union's conduct amounted to more than mere negligence. The Authority concluded that the union deliberately and unjustifiably failed to file a grievance on behalf of the employee.
In AFGE, the Authority found that the union had plausibly explained its president's failure to timely file a grievance on behalf of an employee when the union official mistakenly believed that his illness would result in an extension of time to file. There was nothing in the record on which to base a conclusion that the president acted arbitrarily or in bad faith or deliberately and unjustifiably treated the employee differently from other unit employees. 31 FLRA at 1213. The Authority distinguished IAM because in that case the judge concluded that the union had intentionally ignored the employee's requests to file a grievance.
The evidence in this case, based on credited testimony, is that when Horn received the three coun