[ v04 p160 ]
04:0160(27)CO
The decision of the Authority follows:
4 FLRA No. 27
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 987, AFL-CIO
Respondent
and
JOHN C. LEGGETTE
Complainant
Assistant Secretary
Case No. 40-9026(CO)
DECISION AND ORDER
ON NOVEMBER 16, 1979, THE ADMINISTRATIVE LAW JUDGE ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED
IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR
MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS,
5 CFR 2400.2. THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7135(B)).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 40-9026(CO) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
PETER BROIDA, ESQUIRE
ASSISTANT GENERAL COUNSEL
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
FOR THE RESPONDENT
JOHN C. LEGGETTE
206 TODD CIRCLE
WARNER ROBINS, GA 31093
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, UPON AN UNFAIR
LABOR PRACTICE COMPLAINT FILED BY MR. JOHN C. LEGGETTE AGAINST LOCAL
987, AFGE. IN SUBSTANCE, THE COMPLAINT ALLEGED THAT LOCAL 987 VIOLATED
SECTION 19(B)(1) OF THE ORDER BY REFUSING TO ELEVATE HIS GRIEVANCE TO
THE FIFTH STEP OF THE GRIEVANCE PROCESS, THUS EFFECTIVELY DEPRIVING HIM
OF THE OPPORTUNITY TO PURSUE THE MATTER TO ARBITRATION, BECAUSE HE WAS A
NONMEMBER AND AN OUTSPOKEN CRITIC OF LOCAL PRESIDENT EDWARD C. MADDOX.
FINDINGS OF FACT
LOCAL 987 IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF APPROXIMATELY
12,800 EMPLOYEES AT THE WARNER ROBINS AIR LOGISTICS CENTER, WARNER
ROBINS, GEORGIA. EDWARD MADDOX HAS BEEN ITS PRESIDENT FOR THE PAST SIX
YEARS. THE UNION HAS 150-175 STEWARDS AND EMPLOYS THREE CLERICALS, ONE
FULL-TIME AGENT AND A CONSULTANT. MR. LEGGETTE BECAME A STEWARD IN
1976, AND WAS VERY ACTIVE AND AGGRESSIVE IN THAT ROLE. HE BECAME
DISSATISFIED WITH WHAT HE REGARDED AS AN INEFFECTIVE LOCAL 987 REGIME,
AND ONE WHICH FAILED TO PROVIDE PROPER SUPPORT FOR ITS STEWARDS. HE
ASSERTS THAT HE WAS AN OUTSPOKEN CRITIC OF MADDOX, THAT IT WAS WIDELY
KNOWN AMONG UNION OFFICIALS THAT HE SUPPORTED MADDOX'S OPPONENT IN THE
LAST UNION ELECTION AND THAT HE HAD ANNOUNCED HE WOULD RESIGN IF MADDOX
WAS REELECTED. ON MARCH 1, 1978, HE RESIGNED FROM MEMBERSHIP.
ON MARCH 16, 1978, LEGGETTE RECEIVED AN EVALUATION OF HIS POTENTIAL
FOR FIRST LEVEL SUPERVISORY POSITIONS. HE WAS RATED OUTSTANDING IN FOUR
OF SIX AREAS AND ABOVE AVERAGE IN THE OTHER TWO. AT THE SAME TIME HE
RECEIVED AN APPRAISAL OF HIS PERFORMANCE, IN WHICH HE WAS RATED
OUTSTANDING IN 15 CATEGORIES AND ABOVE AVERAGE IN FIVE. IT IS
INTERESTING TO NOTE, AS A BACKDROP TO HIS RELATIONSHIP WITH THE UNION,
THAT MANAGEMENT VIEWED HIM AS RELATIVELY WEAK IN SUPPORTING OR
REFLECTING ORGANIZATIONAL POLICY, IN CREATING AND MAINTAINING GOOD
INTERPERSONAL RELATIONSHIPS, IN SELLING IDEAS AND NEW CONCEPTS, AND IN
WORKING CLOSELY WITH OTHERS AS A TEAM MEMBER. NOTWITHSTANDING WHAT
WOULD APPEAR TO HAVE BEEN RELATIVELY HIGH GRADES, MR. LEGGETTE FILED A
GRIEVANCE IN THE BEHALF THAT HIS VIGOROUS STEWARDSHIP HAD TAINTED THE
EVALUATIONS. HE APPROACHED HIS CHIEF STEWARD, MS. GRACE CRAIG, WHO WAS
TOO BUSY TO REPRESENT HIM. THE TWO AGREED THAT HE SHOULD REPRESENT
HIMSELF THROUGH THE FIRST FOUR GRIEVANCE STEPS AT THE DIRECTORATE LEVEL,
AND THEN, IF NECESSARY, SECURE UNION REPRESENTATION AT THE FIFTH STEP,
OR COMMAND LEVEL. LEGGETTE TESTIFIED THAT THE TWO ALSO AGREED THAT
THERE WAS, IN FACT, NO ONE BETTER QUALIFIED TO PRESENT HIS CASE.
ACCORDINGLY, HE PROCEEDED UNSUCCESSFULLY TO PURSUE THE GRIEVANCE
THROUGH
THE FIRST FOUR STEPS.
THE TIME TO INVOKE THE FIFTH STEP PROCEDURES WAS DUE TO EXPIRE ON MAY
2. ON APRIL 24 LEGGETTE LEFT HIS GRIEVANCE FILE ON THE DESK OF MR.
LARRY FRANKS, CONSULTANT TO LOCAL 987, WITH A REQUEST THAT IT BE
REVIEWED AND ITS MERIT EVALUATED. IN SUBSEQUENT PHONE CONVERSATIONS
FRANKS SAID THAT HE VIEWED THE GRIEVANCE AS MERITORIOUS, AND SUGGESTED
SOME WAYS OF STRENGTHENING IT. THE TESTIMONY CONCERNING WHO WOULD
"PRESENT" THE GRIEVANCE IS VERY CONFUSING, IN PART BECAUSE I HAD REAL
DIFFICULTY IN SEPARATING LEGGETTE'S PRESENT ARGUMENTS AND OPINIONS ABOUT
THE EVENTS IN DISPUTE FROM HIS TESTIMONY ABOUT WHAT IN FACT WAS SAID OR
DONE AT RELEVANT TIMES. HE ASSERTED THAT FRANKS ASKED HIM WHO WOULD
HANDLE THE CASE, INDICATING THAT MADDOX WOULD NOT APPROVE FRANKS FOR
THAT TASK. THIS WAS THE IMPRESSION LEGGETTE RECEIVED, WHICH HE DID NOT
BASE ON ANY WORDS ATTRIBUTED TO FRANKS. IN FACT, HE SAID, FRANKS DID
NOT VOLUNTEER A REASON NOR DID HE ASK OR, EVEN CARE. LEGGETTE ALSO
TESTIFIED (OR PERHAPS ARGUED) THAT HE DID NOT DESIRE FRANKS'
REPRESENTATION BECAUSE HE KNEW IT WOULD BE DENIED HIM, THAT HE WOULD BE
PERFECTLY WILLING TO REPRESENT HIMSELF PROVIDED IT WAS AUTHORIZED BY
MADDOX, AND THUS NOT IMPOSE ON FRANKS' TIME, THAT HE WOULD BE PLEASED TO
BE REPRESENTED BY SOMEONE ELSE DESIGNATED BY MADDOX, AND THAT MADDOX HAD
A RESPONSIBILITY TO DESIGNATE A REPRESENTATIVE IF HE REQUESTED SUCH
ASSISTANCE. /2/ IN ANY EVENT, HE DID CLEARLY CLAIM TO HAVE ASKED THAT
HIS GRIEVANCE BE ELEVATED ON UNION STATIONARY BEARING MADDOX'S SIGNATURE
AND TO HAVE MADE KNOWN TO FRANKS HIS CONCERN THAT UNION "SPONSORSHIP" OF
HIS GRIEVANCE WAS INDISPENSABLE TO ANY REAL HOPE OF ARBITRATION. THUS,
WHILE THE FIFTH STEP WAS AVAILABLE TO AN INDIVIDUAL, ARBITRATION WAS
AVAILABLE ONLY TO THE UNION (ARTICLE 44, SEE F, STEP 5D.) AND ONLY AFTER
A MEMBERSHIP VOTE. LEGGETTE HELD STRONGLY TO THE VIEW THAT THE LATTER
FORUM WAS FORECLOSED BECAUSE OF THE COSTS BORNE BY THE UNION, TO AN
INDIVIDUAL WHO DID NOT PAY DUES. HE POINTED TO NO PARTICULAR EVENT AS
JUSTIFYING THIS VIEWPOINT, NOR DID HE DENY THAT THE UNION HAS IN FACT
REPRESENTED A NUMBER OF NONMEMBERS IN VARIOUS LEGAL ACTIONS, INCLUDING
ARBITRATION. IN ANY EVENT LEGGETTE ASSERTED THAT IT WAS ESSENTIAL THAT
HE HAVE, AS HE PUT IT, A "REPRESENTATION" ASSIGNMENT FROM THE UNION IN
ORDER TO PROTECT HIS RIGHT TO ARBITRATION.
FRANKS, ON THE OTHER HAND, SAID THAT LEGGETTE NEVER REQUESTED
REPRESENTATION AND WAS NOT TOLD THAT FRANKS WOULD NOT REPRESENT HIM, BUT
RATHER SAID HE WOULD REPRESENT HIMSELF. HE FURTHER TESTIFIED THAT HE
COULD RECALL NO SPECIFIC REQUEST BY LEGGETTE THAT HIS GRIEVANCE BE
ELEVATED ON THE UNION'S STATIONARY, OVER THE SIGNATURE OF A UNION
OFFICIAL, NOR COULD HE RECALL THAT LEGGETTE HAD EVER ASSERTED HIS
OVERRIDING CONCERN THAT THESE STEPS WERE NECESSARY TO ANY REALISTIC HOPE
OF ARBITRATION. WHILE NOT DENYING THAT SUCH A STATEMENT MAY HAVE BEEN
MADE, HE ASSERTED THAT IT WAS ABSOLUTELY ROUTINE TO ELEVATE A GRIEVANCE
WITH A LETTER BEARING MADDOX'S SIGNATURE, WHERE, AS HE BELIEVED WAS THE
CASE, LEGGETTE WAS A UNION STEWARD WHO WISHED TO PRESENT HIS OWN CASE.
HE THEREFORE, ON MAY 1, DRAFTED A LETTER FOR MADDOX'S SIGNATURE,
DESIGNATING LEGGETTE AS THE UNION'S REPRESENTATIVE IN THE PROSECUTION OF
HIS GRIEVANCE AT STEP 5 (COMPLAINANT'S EXHIBIT NO. 2). LEGGETTE
ACCEPTED FRANKS' ASSERTION THAT HE WAS AT THAT TIME UNAWARE OF
LEGGETTE'S RESIGNATION TWO MONTHS EARLIER.
LATER IN THE DAY, MADDOX ASKED FRANKS IF HE HAD TALKED TO LEGGETTE
ABOUT THE GRIEVANCE. FRANKS REPLIED THAT LEGGETTE WISHED TO REPRESENT
HIMSELF. MADDOX THEN POINTED OUT THAT, AS LEGGETTE WAS NOT A MEMBER, IT
WAS IMPROPER AS A MATTER OF AFGE POLICY TO DESIGNATE HIM AS THE LOCAL'S
REPRESENTATIVE. FRANKS EXPLAINED THAT THE DRAFT WAS BASED ON THE
OPPOSITE ASSUMPTION, AND THAT HE WOULD NOT HAVE USED UNION STATIONARY
NOR WOULD HE HAVE DESIGNATED LEGGETTE AS THE UNION REPRESENTATIVE HAD HE
KNOWN OF HIS NONMEMBERSHIP. MADDOX THEN CAUSED A LETTER TO BE PREPARED
SIMPLY ELEVATING THE GRIEVANCE ON PLAIN STATIONARY FOR LEGGETTE'S
SIGNATURE. FRANKS THEN TELEPHONE LEGGETTE, INFORMED HIM THAT MADDOX
REFUSED TO SIGN THE LETTER, AND TOLD HIM TO COME BY THE UNION OFFICE TO
PICK UP THE FILE AND TO SIGN A LETTER WHICH HAD BEEN PREPARED ON PLAIN
STATIONARY FOR HIS OWN SIGNATURE. ACCORDING TO FRANKS HE TOLD LEGGETTE
THAT MADDOX WOULD NOT SIGN THE DRAFT BECAUSE LEGGETTE WAS NO LONGER A
MEMBER OR STEWARD AND HE HAD ASKED TO REPRESENT HIMSELF. ACCORDING TO
LEGGETTE, FRANKS SAID HE DID NOT KNOW WHY MADDOX REFUSED TO SIGN, AS HE
HAD GIVEN NO REASON. LEGGETTE DID NOT INSIST ON AN EXPLANATION, ON THE
GROUND THAT THERE WAS NO TIME TO ARGUE OR INQUIRE. HE SAW NO POINT IN
DISCUSSING THE MATTER WITH MADDOX INASMUCH AS HE HAD "SEEN FIT TO USE
HIS DISCRETION TO REFUSE TO SIGN."
WHEN LEGGETTE APPEARED AT THE UNION OFFICE TO PICK UP THE FILE,
FRANKS WAS NOT THERE. HE STATED THAT MADDOX OVERHEARD HIS CONVERSATION
WITH A CLERICAL EMPLOYEE AND CALLED HIM INTO HIS OFFICE. THERE MADDOX
ALLEGEDLY SAID, IN THE PRESENCE OF EXECUTIVE VICE PRESIDENT JERRE
HARVARD AND VICE PRESIDENT HERBERT SHIPLEY: "LOOKS LIKE YOU NEED SOME
HELP WITH THAT FILE UNDER YOUR ARM-- I GOT AN APPLICATION HERE THAT YOU
CAN SIGN." MADDOX WAVED AN APPLICATION AS HE MADE THE STATEMENT IN A WAY
DESCRIBED AS SARCASTIC OR SARDONIC. LEGGETTE RECEIVED THE REMARK, HE
SAID, AS AN INDICATION THAT NONMEMBERSHIP WAS AT THE ROOT OF HIS
TROUBLE, AND THAT EXECUTION OF AN APPLICATION WOULD YIELD FURTHER UNION
ASSISTANCE. HE NEVERTHELESS RESPONDED THAT HE WAS NOT PREPARED TO SIGN
AN APPLICATION-- THAT HE WOULD HAVE TO REPRESENT EMPLOYEES WHO
CONTINUALLY ASK HIM TO ASSUME THAT BURDEN. AS NOTED, THERE WAS NO
DISCUSSION OF MADDOX'S REFUSAL TO SIGN THE LETTER OR OF ITS IMPACT UPON
ARBITRATION AS PERCEIVED BY LEGGETTE. LEGGETTE MAKES NO PRETENSE THAT
HE WAS TOO TIMID TO DO SO; RATHER HE SAID THAT THE ANSWER WAS PERFECTLY
CLEAR TO HIM, GIVEN MADDOX'S ATTITUDE AND ACTIONS, AND THAT FACT THAT HE
DID NOT HAVE THE COURTESY TO CALL HIM OR EVEN TO CALL MS. CRAIG (HIS
CHIEF STEWARD). MADDOX ADMITTED THAT HE SAW LEGGETTE IN THE UNION
OFFICE AROUND THE TIME OF THE LETTER INCIDENT, AND THAT HE SAID TO HIM,
"JACK, AREN'T YOU ABOUT READY TO COME BACK ABOARD?" LEGGETTE RESPONDED
THAT IF HE DID PEOPLE WOULD "HOUND HIM TO DEATH" TO REPRESENT THEM.
WHEN ASKED WHETHER HE MADE A STATEMENT ABOUT LEGGETTE'S NEED FOR HELP,
MADDOX SAID THAT HE DID NOT RECALL MAKING SUCH A STATEMENT. HE WAS NOT
ASKED WHETHER HE WOULD, IN FACT, DENY THE STATEMENT ATTRIBUTED TO HIM.
/3/ HOWEVER, BOTH MR. HARVARD AND MR. SHIPLEY CREDIBLY DENIED ANY
RECOLLECTION OF SUCH REMARKS BY MADDOX.
PRESIDENT MADDOX APPOINTED MS. CRAIG AS UNION OBSERVER AT THE FIFTH
STEP HEARING. AGAIN, LEGGETTE LOST. HE DID NOT REQUEST, ALTHOUGH HE
HAD THE RIGHT, THAT THE COMMANDER'S ADVERSE DECISION BE REFERRED TO THE
GRIEVANCE COMMITTEE FOR A DECISION AND RECOMMENDATION TO THE GENERAL
BODY RESPECTING THE ADVISABILITY OF ARBITRATION. AGAIN, LEGGETTE
EXPLAINED HIS FAILURE TO ASK ON THE GROUND THAT THE REQUEST WOULD HAVE
BEEN FUTILE. THUS, HE KNEW THAT, IF THE UNION DID NOT SPONSOR ELEVATION
OF HIS GRIEVANCE TO STEP 5, THE GRIEVANCE COMMITTEE WOULD NOT RECOMMEND
ARBITRATION BECAUSE IT HAS A NATURAL OBJECTION TO EXPENDING UNION FUNDS
IN REPRESENTING AN EMPLOYEE WHO DID NOT CONTRIBUTE TO THE ORGANIZATION.
WHEN I ASKED WHETHER HE FAILED TO MAKE THE REQUEST BECAUSE HE
ANTICIPATED A NEGATIVE RESPONSE, HE ANSWERED IN THE NEGATIVE, EXPLAINING
THAT HE FELT IT WAS THE UNION'S RESPONSIBILITY TO TAKE THAT ACTION
IRRESPECTIVE OF WHETHER HE ASKED FOR IT. ON CROSS-EXAMINATION HE
REITERATED THAT HE DECIDED NOT TO TAKE THE MATTER TO THE COMMITTEE, OR
EVEN TO FIND OUT HOW A MATTER IS TAKEN TO ARBITRATION, BECAUSE HE
THOUGHT IT WAS INCUMBENT UPON MADDOX TO FIRST ADVISE HIM OF THE ACTION
HE INTENDED TO TAKE. /4/
THEREAFTER, LEGGETTE REJOINED THE UNION IN SEPTEMBER OR OCTOBER,
1978, AND RESUMED HIS ROLE OF STEWARD IN NOVEMBER. WITH RESPECT TO HIS
APPOINTMENT HE ASSERTS THAT MADDOX HAD NO CHOICE BUT TO APPOINT HIM
BECAUSE OF THE MEMBERSHIP'S DEMANDS. ON THE OCCASION OF HIS
APPLICATION, MADDOX ASKED, "WHAT HAPPENED, DID YOUR CONSCIENCE GET TO
BOTHERING YOU?" AFTER LEGGETTE LEFT, MADDOX SAID TO CHIEF STEWARD CRAIG:
"WHY COULDN'T I JUST HAVE ACCEPTED HIS APPLICATION AND WELCOMED HIM
BACK INTO THE LOCAL?" AS MS. CRAIG TESTIFIED, MADDOX APPEARED TO REALIZE
HIS REMARK WAS NO IN THE BEST OF TASTE.
DISCUSSION, CONCLUSIONS, AND RECOMMENDATION
THE FIRST DIFFICULTY CONCERNS THE PRECISE VIOLATION ALLEGED. THE
CHARGE WAS FILED ON MAY 12, 1978, BEFORE THE FIFTH STEP DECISION WAS
ENTERED, AND FOCUSED ON THE EVENTS OF MAY 1, WHEN MADDOX CHANGED THE
LETTER DRAFTED FOR HIS SIGNATURE. THE GRAVEMEN OF LEGGETTE'S COMPLAINT
SEEMS TO BE THAT HE WAS DENIED THE OPPORTUNITY TO REPRESENT HIMSELF AS A
REPRESENTATIVE FOR THE UNION, AS HE STATES AT TRANSCRIPT PAGE 92. YET
ON THE SAME PAGE HE SEEMS TO SUM IT UP BY SAYING THAT MADDOX:
1) DIRECTED HIM TO PROCESS HIS OWN GRIEVANCE UP TO THE GENERAL;
2) OFFERED HIM NO ALTERNATIVE AND NO ASSISTANCE;
3) TOOK NO INTEREST IN DETERMINING WHETHER HE WAS ENTITLED TO
ARBITRATION;
4) DID NOT ADVISE HIM IN ANY RESPECT WHAT HIS ENTITLEMENT WAS.
ALTHOUGH LEGGETTE'S PROOF CENTERED ON THE ELEVATION OF THE GRIEVANCE
TO STEP 5, AND HIS ARGUMENT WAS THAT LACK OF UNION SPONSORSHIP AT THAT
LEVEL EFFECTIVELY FORECLOSED ARBITRATION, HE ALSO FOCUSED TO SOME EXTENT
ON THE FAILURE OF THE UNION TO TAKE THE MATTER TO ARBITRATION.
LIKEWISE, AND UNDERSTANDABLY, MUCH OF RESPONDENT'S BRIEF IS CONCERNED
WITH LEGGETTE'S CLAIMS THAT HE WAS DENIED ARBITRATION, QUITE APART FROM
THE ALLEGEDLY INEVITABLE CONSEQUENCES OF THE WAY IN WHICH THE GRIEVANCE
WAS HANDLED AT STEP 5. SUFFICE IT TO SAY THAT THIS ANALYSIS WILL DEAL
WITH THE ELEVATION OF THE GRIEVANCE, AN EVENT WHICH LEGGETTE CONTENDS
LED IRREVERSIBLY TO THE TERMINATION OF HIS GRIEVANCE AT STEP 5, AND WILL
NOT DWELL ON WHAT HAPPENED THEREAFTER. HIS OWN TESTIMONY WAS THAT HE
WAS A HIGHLY EXPERIENCED AND SKILLED STEWARD. I DO NOT ACCEPT,
THEREFORE, HIS CONTENTION THAT IT SHOULD NOT HAVE BEEN NECESSARY FOR HIM
TO REQUEST ARBITRATION, BUT THAT IT WAS INCUMBENT UPON UNION OFFICIALS
TO PRESENT HIS CASE TO THE COMMITTEE WHICH WOULD CONSIDER ARBITRATION.
I THEREFORE CONSIDER HIS FAILURE TO REQUEST ARBITRATION AS THE END OF
THE INQUIRY CONCERNING THAT STAGE OF THE PROCESSING OF HIS GRIEVANCE.
AS IS EVIDENT FROM THE RECITATION OF THE FACTS, I HAVE HAD UNUSUAL
DIFFICULTY IN RESOLVING DISPUTED MATTERS. DEMEANOR OF THE WITNESSES HAS
NOT BEEN HELPFUL. THE ENTIRE PRESENTATION WAS ENCUMBERED, AND CLOUDED,
BY THE ARGUMENTATIVE STANCE TAKEN BY THE CHARGING PARTY AND RESPONDENT'S
ATTORNEY, AND THE PERSONAL ANIMOSITY WHICH DEVELOPED. AS A CONSEQUENCE,
THE LINE BETWEEN FACTS AND FENCING WAS OFTEN BADLY BLURRED. I HAVE NO
REASON TO BELIEVE THAT ANY WITNESS DELIBERATELY LIED. RATHER MY
ULTIMATE FINDINGS PROCEED FROM THE SENSE OF THE SITUATION AS I
UNDERSTOOD IT, AND ITS INHERENT PROBABILITIES. I BEGIN WITH THE
OBSERVATION THAT THIS IS A LARGE UNION IN AN ENORMOUS UNIT. LEGGETTE WAS
ONE OF OVER 150 STEWARDS. ALTHOUGH HE WAS RELATIVELY ACTIVE AND WAS AN
OPPONENT OF THE MADDOX REGIME, I DO NOT ACCEPT HIS APPARENT CLAIM THAT
UNION OFFICIALS WERE WELL AWARE OF, AND KEENLY INTERESTED IN SUCH
MATTERS. THERE IS NO EVIDENCE OF ANY STATEMENT MANIFESTING A PROCLIVITY
TO DENY HIM HIS RIGHTS UNDER THE ORDER BECAUSE HE WAS A POLITICAL
OPPONENT OF THE MADDOX GROUP. AT MOST, THERE IS EVIDENCE SUSCEPTIBLE OF
THE INTERPRETATION THAT NONMEMBERSHIP ALONE MAY HAVE CAUSED HIS
DIFFICULTIES, I.E., THE CONVERSATION IN MADDOX'S OFFICE.
WHATEVER ELSE MAY HAVE BEEN SAID ABOUT THE INITIATION OF THE
GRIEVANCE, IT IS CLEAR THAT LEGGETTE EXPRESSED A TOTAL WILLINGNESS IF
NOT, INDEED, A PREFERENCE FOR THE HANDLING IT HIMSELF. AT THE HEART OF
HIS CASE IS THE CONTENTION THAT HE SOUGHT THE RIGHT TO PRESENT HIS OWN
GRIEVANCE, AS A UNION REPRESENTATIVE, AT STEP 5, AND THAT LACK OF SUCH
AN APPOINTMENT AND THUS OF UNION "SPONSORSHIP" OF THE GRIEVANCE MEANT
THAT IT COULD NOT THEREAFTER PROCEED TO ARBITRATION. IT IS
UNDERSTANDABLE THAT THE SIGNIFICANCE OF SUCH A REQUEST WOULD BE LOST ON
FRANKS, TO WHOM SUCH A DESIGNATION OF LEGGETTE WAS PURE ROUTINE, GIVEN
HIS UNCHALLENGED ASSUMPTION THAT LEGGETTE WAS A STEWARD. IT IS EVEN
MORE UNDERSTANDABLE THAT MADDOX, AWARE OF LEGGETTE'S NONMEMBERSHIP,
WOULD REFUSE TO SIGN A LETTER DESIGNATING HIM AS THE UNION
REPRESENTATIVE IN THE PROCESSING OF THE GRIEVANCE. THERE EXISTS, OF
COURSE, NO REQUIREMENT THAT A UNION PERMIT ITSELF TO BE REPRESENTED BY
PERSONS WHO OWE IT NO LOYALTY AND ARE BEYOND THE REACH OF ITS
DISCIPLINE. THERE IS NO EVIDENCE IN THIS RECORD THAT THE UNION HAS
DISCRIMINATED AGAINST, OR DENIED FAIR REPRESENTATION TO NONMEMBERS OR TO
MEMBERS VIEWED AS DISLOYAL, OR EVER THREATENED TO DO SO. THERE IS, IN
FACT, EVIDENCE TO THE CONTRARY. THUS A FINDING THAT LEGGETTE HAS COME
FORWARD WITH NOT EVEN A SCINTILLA OF EVIDENCE IN SUPPORT OF HIS CLAIM
WOULD BE UNASSAILABLE BUT FOR TWO SUSPICIOUS CIRCUMSTANCES: HIS CLAIM
THAT MADDOX'S PROFESSED REASON FOR NOT ELEVATING HIS GRIEVANCE WAS NEVER
GIVEN AT THE TIME, AND HIS TESTIMONY THAT MADDOX COUPLED HIS
SOLICITATION OF LEGGETTE'S MEMBERSHIP WITH THE OBSERVATION THAT HE
APPEARED TO NEED HELP WITH THE GRIEVANCE FILE THAT WAS UNDER HIS ARM.
IF CREDITED, THE FIRST FACTOR WOULD SUGGEST THAT THE REASON GIVEN AT THE
HEARING WAS AN AFTERTHOUGHT, A CLEVER COVER FOR A NAKED (AND THUS
MEANINGFUL) REFUSAL TO ASSIST A NONMEMBER WITH HIS GRIEVANCE. IT IS,
HOWEVER, DIFFICULT TO BELIEVE THAT IT HAPPENED THIS WAY FOR A NUMBER OF
REASONS. FIRST THE EXPLANATION GIVEN WAS A GOOD AND SOUND ONE, BASED ON
CLEAR UNION POLICY AND THE OBVIOUS FACT OF LEGGETTE'S NONMEMBERSHIP, AND
THERE WOULD SEEM TO HAVE BEEN NO CAUSE TO WITHHOLD COMMUNICATION OF IT.
SECOND, THERE WAS NO REFUSAL TO PROVIDE CLEARLY NECESSARY ASSISTANCE.
FRANKS IN FACT HAD REVIEWED THE FILE AND OFFERED SUGGESTIONS, AND
LEGGETTE WAS ENTITLED TO THE HEARING HE GOT ON HIS OWN REQUEST. THERE
WAS NO DEPRIVATION THEREFORE, UNLESS ONE ACCEPTS LEGGETTE'S CLAIM THAT
LACK OF UNION "SPONSORSHIP" OF THE GRIEVANCE TO THE FIFTH STEP, THAT IS,
ELEVATION OF THE MATTER OVER MADDOX'S SIGNATURE ON UNION STATIONARY, IN
A LETTER DESIGNATING HIM AS UNION REPRESENTATIVE, WAS FATAL TO ANY HOPE
OF ARBITRATION. BUT AGAIN, THERE IS NO EVIDENCE THAT ARBITRATION IS
UNAVAILABLE TO INDIVIDUALS WHO PURSUE THEIR OWN GRIEVANCES, AND, AGAIN,
LEGGETTE FAILED TO REQUEST IT IN ANY EVENT.
THE MATTER OF MADDOX'S STATEMENT IS MORE TROUBLESOME. IF HE IN FACT
REFERRED TO LEGGETTE'S NEED FOR HELP WHEN HE SOLICITED HIS MEMBERSHIP,
THE STATEMENT IS CLEARLY SUSCEPTIBLE OF THE INTERPRETATION THAT SUCH
ASSISTANCE WOULD BE FORTHCOMING ONLY IF THE MEMBERSHIP APPLICATION WAS
EXECUTED. SUCH A CONDITION WOULD, OF COURSE, BE UNLAWFUL. MADDOX'S
REMARK, HOWEVER, WAS MADE IN CIRCUMSTANCES WHERE LEGGETTE DID NOT APPEAR
TO BE SEEKING HELP, UNLESS UNION "SPONSORSHIP" OF HIS GRIEVANCE, AS
DEFINED ABOVE, IS CONSIDERED HELP AND AN UNDERSTANDING OF THAT IS
ATTRIBUTED TO MADDOX. ON THIS RECORD IT WOULD BE FARFETCHED TO DO SO.
IT IS UNLIKELY THAT FRANKS EVER UNDERSTOOD, IF HE WAS TOLD, WHAT
LEGGETTE SAYS HE WANTED AND WHY. MADDOX'S CONDUCT WAS CONSISTENT WITH
WHAT FRANKS TOLD HIM: THAT LEGGETTE WISHED TO REPRESENT HIMSELF. THERE
IS NO EVIDENCE THAT HE DID, OR EVEN SHOULD HAVE, APPRECIATED THE HIGHLY
UNORTHODOX REQUEST LEGGETTE CLAIMS TO HAVE MADE TO FRANKS, AND LEGGETTE
NEVER MADE A DIRECT APPROACH TO MADDOX. IN SUCH CIRCUMSTANCES, A
REFERENCE TO LEGGETTE'S NEED FOR HELP WOULD SEEM BESIDE THE POINT, AND I
CONCLUDE THAT LEGGETTE HAS NOT PROVED, BY A PREPONDERANCE OF THE
EVIDENCE, THAT SUCH A STATEMENT WAS MADE. MOREOVER, I WOULD FIND THAT
EVEN ON EXPLICIT REFERENCE TO THE NEED FOR HELP WOULD NOT VIOLATE THE
ORDER ON THIS RECORD.
THE DUTY OF FAIR REPRESENTATION REQUIRES THAT A UNION REPRESENT ALL
EMPLOYEES IN A UNIT FOR WHICH IT IS THE EXCLUSIVELY RECOGNIZED
REPRESENTATIVE WITHOUT HOSTILITY OR DISCRIMINATION, AND TO EXERCISE ITS
DISCRETION IN SUCH MATTERS HONESTLY AND IN GOOD FAITH. /5/ THUS, IT
MUST CONSIDER AND PROCESS GRIEVANCES OF MEMBERS AND NONMEMBERS ALIKE,
DRAWING NO DISTINCTION ON THAT OR ANY UNFAIR AND INVIDIOUS GROUND. I
CANNOT READ THAT OBLIGATION AS FORECLOSING AN APPEAL TO THE NONMEMBER TO
JOIN AND AVOID THE FREE RIDE. THE UNION OFFICIAL WHO UTTERS SUCH A
STATEMENT OF COURSE INVITES SUSPICION, AND IF OTHER CIRCUMSTANCES
FORTIFY THAT SUSPICION, HE RISKS AN UNFAIR LABOR PRACTICE FINDING. THIS
RECORD IS BARREN, HOWEVER, OF EVIDENCE THAT LOCAL 987 HAS NEGLECTED ITS
OBLIGATION. WHAT LITTLE EVIDENCE EXISTS IS TO THE CONTRARY, AND THE
EVIDENCE BY LEGGETTE CONCERNING THIS GRIEVANCE IS HARDLY CONVINCING. IN
MY VIEW, HE CANNOT BUILD HIS CASE ON A SINGLE STATEMENT WHICH ALLEGEDLY
ACKNOWLEDGED HIS NEED FOR THE UNION'S HELP AND MAY HAVE REMINDED HIM OF
HIS OBLIGATION TO HELP THE UNION. AS MADDOX CANDIDLY CONCEDED, THE
UNION'S MEMBERSHIP DOES NOT CHEERFULLY SHOULDER THE BURDENS OF THE
FREERIDER. THE LAW DOES NOT AND CANNOT COMMAND THEM TO DO SO. IT ONLY
REQUIRES THAT THE UNION ASSUME SUCH BURDENS AND DISCHARGE ITS
OBLIGATIONS TO ALL IT REPRESENTS WITHOUT RESPECT TO UNION MEMBERSHIP OR
SUCH INVIDIOUS CONSIDERATIONS AS RACE OR SEX. IF ANY SUSPICION OF A
DISINCLINATION FAIRLY TO REPRESENT NONMEMBERS ARISES FROM THE STATEMENT
ATTRIBUTED TO MADDOX, IT DRAWS NO STRENGTH FROM THE CONTEXT, BUT IS
UNDERMINED BY IT. A LABOR ORGANIZATION EXISTS TO PROSELETIZE, AND HAS
EVERY RIGHT TO PERSUADE NONMEMBERS THAT ITS DUTY TO REPRESENT THEM
CREATES A CORRESPONDING DUTY ON THEIR PART TO SUPPORT IT. SUCCESS IN
THIS EFFORT IS INDISPENSABLE TO ITS CAPACITY TO FUNCTION EFFECTIVELY AS
A REPRESENTATIVE OF ALL EMPLOYEES. ABSENT OTHER, RATHER CONVINCING
EVIDENCE OF HOSTILITY TO NONMEMBERS, I CONCLUDE THAT SUCH AN APPEAL TO
LEGGETTE IS NOT EVIDENCE OF AN UNWILLINGNESS TO DISCHARGE ITS
OBLIGATION. IN SUM, I CONCLUDE THAT NO VIOLATION OF SECTION 19(A)(1)
HAS BEEN ESTABLISHED.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT PROHIBITED BY
SECTION 19(A)(1) OF THE EXECUTIVE ORDER, IT IS HEREBY RECOMMENDED THAT
THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
DATED: NOV 16 1979
--------------- FOOTNOTES$ ---------------
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135) HAD NOT BEEN
ENACTED. THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER
THE MEANING OR APPLICATION OF RELATED PROVISIONS OF THE STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ HE ALSO TESTIFIED THAT HE TOLD FRANKS THAT HE UNDERSTOOD MADDOX'S
OPPOSITION TO PROVIDING REPRESENTATION BY FRANKS, THAT HE WOULD TAKE
CARE OF IT HIMSELF, THAT IT WOULD BE FINE IF MADDOX DESIGNATED SOMEONE
ELSE, AND THAT HE WOULD VOLUNTEER TO DO IT ON HIS OWN.
/3/ ON THIS, AND OTHER OCCASIONS, THE UNDERSIGNED DID NOT PURSUE
MATTERS OPENED UP BY HIS OWN QUESTIONS, IN THE BELIEF THAT HE WOULD
THEREBY OVERSTEP THE LINE BETWEEN DEVELOPING A FULL RECORD OR EVEN
ASSISTING THOSE WITHOUT COUNSEL, AND ASSUMING AN ACTIVE ROLE IN THE
PROSECUTION OF COMPLAINANT'S CASE.
/4/ MADDOX WAS IN FACT OUT OF TOWN FOR A PROLONGED PERIOD, STARTING
SEVERAL DAYS BEFORE THE ADVERSE BASE COMMANDER'S DECISION WAS RENDERED
ON JUNE 6.
/5/ VOCA V. SIPES, 386 U.S. 171(1967); AFGE LOCAL 2028 (V.A.
HOSPITAL, PITTSBURGH, PA), A/SLMR NO. 431.