AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1945, BYNUM, ALABAMA and SAM CASH,
. . . . . . . . . . . . . . . . . AMERICAN FEDERATION OF . GOVERNMENT EMPLOYEES, . LOCAL 1945, BYNUM, ALABAMA .
and Case No. 4-CO-10025
SAM CASH, AN INDIVIDUAL .
Charging Party . .. . . . . . . . . . . . . . . . .
Stuart A. Kirsch, Esquire For the Respondent Sherrod G. Patterson, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, etseq.(1), and the Rules and Regulations issued
thereunder, 5 C.F.R. §§ 2423.1, et seq.,
concerns the allegation that Local 1945, by failing to submit the
paperwork necessary to initiate arbitration, deliberately and/or
unjustifiably treated member Sam Cash different from other
bargaining unit employees; thereby failed to comply with § 14(a)(1)
of the Statute; and violated §§ 16(b)(1) and (8) of the
This case was initiated by charge filed on September 3, 1991
(G.C. Ex. 1(a)) which alleged a violation of § 16(b)(5) of the
Statute and a First Amended charge filed on November 6, 1991 (G.C.
Exh. 1(c)) which alleged a breach of duty of fair representation in
violation of §§ 16(b)(1) and (8) of the Statute. The Complaint and
Notice of Hearing (G.C. Exh. 1 (e)) issued on November 20, 1991,
and set the hearing for February 5, 1992, pursuant to which a
hearing was duly held on February 5, 1992, in Anniston, Alabama,
before the undersigned. All parties were represented at the
hearing, were afforded full opportunity to be heard, to introduce
evidence bearing on the issues involved, and were afforded the
opportunity to present oral argument which was exercised by
Respondent. At the conclusion of the hearing, March 5, 1992, was
fixed as the date for mailing post-hearing briefs which time was
subsequently extended, on joint motion of Respondent and General
Counsel, to which the Charging Party did not object, for good cause
shown, to April 6, 1992. Respondent and General Counsel each timely
mailed an excellent brief, received on, or before, April 11, 1992,
which have been carefully considered. Upon the basis of the entire
record(2), including my observation
of the witnesses and their demeanor, I make the following findings
1. American Federation of Government Employees, Local 1945 (hereinafter, "Local 1945" or "Union") is the exclusive representative of a unit appropriate for collective bargaining at the Anniston Army Depot, Anniston, Alabama (hereinafter, "Depot"). The Union and Depot are parties to a collective bargaining agreement, Joint Exhibit 1, Article 33 of which provides, in pertinent part, as follows:
"Section 1. If the Employer and the Union fail to settle any grievance. . .such
grievance shall, upon written notice by the party requesting arbitration to the
other part [sic], be referred to arbitration. Arbitration of a grievance may be
invoked only by the Employer or the Union and does not require the approval
of the employees involved. Written request for arbitration must be served within
20 working days following the conclusion of the last
step of the grievance procedure.
"Section 2. Within 10 working days after notification, the party desiring arbitration
shall request the . . . [FMCS] to submit a list of arbitrators . . ." (Jt. Exh. 1, Art. 33,
Sections 1 and 2)
2. The Charging Party, Mr. Sam Cash (a/k/a Sammy N. Cash
[G.C. Exh. 5]) is employed as a WG-9 Machine Tool Operator, Step 4,
in the Depot's Machine and Fabrication Branch (Tr. 14, 15). Mr.
Cash became a member of Local 1945 in 1988; in November, 1989, was
elected a shop steward (Tr. 15); and in February, 1990, was
appointed Chief Steward on the second shift in the Maintenance
Division (Tr. 15, 16).
3. In 1989, Mr. Cash applied for a Toolmaker, WG-3416-13
position (Merit Promotion Announcement No. 272-88, G.C. Exh. 2; Tr.
20). Although among the best qualified candidates, Mr. Cash was not
4. The job announcement (G.C. Exh. 2) does not state that
the job was to be temporary (see, also Tr. 66; 109); but it is
conceded that the promotions to the WG-13 position initially were
made temporary (Tr. 22; G.C. Exh. 5). Thus, Mr. Cash testified that
he did not grieve the selection process initially - indeed, in view
of the exclusion as a grievance of "non-selection for promotion
from a group of properly ranked and certified candidates" [Jt. Exh.
1, Art. 32, Section 2 d. (7)], it does not appear that he could
have grieved his non-selection (Tr. 175, 189, 190) - but in May
1990(3) the temporary promotions
were made permanent without further competition and consideration
(Tr. 23) and on May 21, 1990, Mr. Dale Stracener, Fifth Vice
President of Local 1945, filed a Second Step grievance on behalf of
Mr. Cash (G.C. Exh. 3; Tr. 23, 24, 100, 101). In pertinent part,
the grievance alleged:
"Two Toolmaker, WG-3416-13, Announcement. . .was converted from
temporary to permanent. The conversion went into effect on 6 May 1990. Thus
violating Article 16, Section 1 of the Negotiated Agreement and FPM Chapter
335, Subchapter 1, 1-5, (d)." (G.C. Exh. 3).
Because the grievance involved a personnel matter and not an
issue that arose in the work area, on July 17, 1990, Mr. Stracener
refiled the grievance, with some stylistic changes, with the
Depot's Civilian Personnel Officer (G.C. Exh. 4). The grievance as
refiled alleged in pertinent part that,
"According to FPM Chapter 335, Subchapter 1, 1-5, (d)[,] [a] a temporary
promotion may be made permanent without further competition provided the
temporary promotion was made under competitive procedures and the fact that it
might lead to a permanent promotion was made known to all potential candidates.
The fact was not made known . . . to all potential candidates. Thus willfully and
directly violating this Federal Personnel Manual." (G.C. Exh. 4)(emphasis in original);
Tr. 25, 26, 101).
Each grievance, i.e., G.C. Exh. 3 and 4,
as remedial action requested, "That Mr. Cash be promoted to
WG-3416-13, be paid backpay and time adjusted accordingly to his
record." (G.C. Exhs. 3 and 4).
5. The Depot's Acting Director of Personnel and Community
Activities, Mr. Billy Gene Bickerstaff, in an undated letter to Mr.
David Barnett, President of Local 1945, denied the grievance (G.C.
Exh. 5; Tr. 27, 102, 218). Mr. Bickerstaff's response was as
"I have reviewed your Step 3 grievance concern-ing an alleged violation of Article 16,
Section 1 of the Negotiated Agreement and FPM Chapter 335. Specifically, you
alleged that it was improper to convert two temporary promotion actions to permanent
promotions because that potential action was not made known to Mr. Sammy N. Cash.
Any time a job announcement is published, it is anticipated that the position will be filled
on a permanent basis unless otherwise specified in the announcement. That was the case
with Announcement Number 272-88 for a Toolmaker,
"Additionally, Mr. Cash was among the best qualified candidates who were referred for
consider- ation both times the certificate was used. Had he been selected either time, this
complaint would not have been raised. Your complaint is therefore based on non-selection
for promotion which is not a grievable issue. Your complaint is therefore denied." (G.C.
6. During the period beginning May, 1990, through May, 1991,
David Barnett was President of the Union(4), and one of the Union's points of contact in
various labor relations matters, including arbitrations, with the
Depot's Management-Employee Relations Branch (MER). Mr. Barnett
reviewed and signed all Union-initiated correspondence concerning
arbitrations before it left the Union Office. (Tr. 16, 17, 100,
108, 138, 147, 209, 214, 246).
During this same time period, David Dail was the Union's
First Vice President. In this position, he acted for Mr. Barnett
during the latter's absence. Gene Gilliand was the Union's Second
Vice President. Mr. Gilliand was the Union officer responsible for
processing grievances and drafting documents for Mr. Barnett's
review and signature by which the Union invoked arbitration on
selected grievances. Mr. Gilliand also acted, along with Mr.
Barnett, as the Union's point of contact with MER in labor
relations matters. (Tr. 16, 90, 122, 136, 138, 209, 214, 246).
Robert Chapman was the Union's Third Vice President and Jimmy Fortner was its Fourth Vice President. The record does not reveal their designated roles in the Union hierarchy.
(Tr. 16, 188, 200).
Dale Stracener and Charlotte Flowers were the fifth and
Seventh Vice Presidents, respectively. They had joint
responsibility for overseeing the representational duties of Union
stewards and chief stewards and overall responsibility for
representing bargaining unit employees in the Depot's Maintenance
area. Ms. Flowers became Union President in May, 1991 (Tr. 16-17,
51, 99, 173).
Kenneth Lockridge was the Union's Sixth Vice President. In
May 1991, he succeeded Mr. Gilliand as Second Vice President, and,
in that position, took over the processing of arbitration cases.
(Tr. 16, 41-42, 90-91, 240).
Mr. Barnett and each of the Vice Presidents served on the
Union's Executive Board. According to Mr. Barnett, the Executive
Board makes binding decisions regarding the merits, or lack
thereof, of grievances that unit employees or Union officials
propose to arbitrate. (Tr. 29, 102, 206, 208, 213-214).
7. There was considerable variation in the precise details
of the handling of Mr. Cash's grievance by the Union. The following
scenario is based on the testimony, which I credit, which appears
most credible, most probable and represents the preponderant weight
of the testimony.
The Union's Grievance Committee, which consists of five
officers and was chaired by Mr. Gilliand during the period of May,
1990, until May, 1991, as noted above, considers each grievance not
settled at Step 3 (Jt. Exh. 1, Art 32, Section 7, Step 4) to make
recommendations to the Executive Board as to whether the Union
should arbitrate the grievance (Tr. 173). Mr. Cash's grievance was
considered by the Grievance Committee and was turned down (Tr. 137,
141, 176, 189-190, 191, 194, 195)(5)
because the Committee viewed it as dealing "mostly" with
non-selection which is not grievable (Tr. 189). Convinced that the
grievance needed to be arbitrated because it concerned
non-compliance with the Federal Personnel Manual (FPM), a point the
Grievance Committee seemed not to have fully appreciated, Messrs.
Stracener and Cash took the matter to the Executive
Board.(6) This was an established
procedure (Tr. 141) and there is no dispute either that Messrs.
Cash and Stracener appeared before the Executive Board or that the
Executive Board recommended arbitration (Messrs. Chapman and
Fortner did not recall that the Cash grievance was ever brought up
at an Executive Board meeting but was dealt with only by the
Grievance Committee (Tr. 193, 202, 203)); however, there is
disagreement as to whether the recommendation was conditional
i.e., proforma, to
buy time, but with no intention to go to arbitration, or was
unconditional. Messrs. Cash, Stracener, David Dail, then First Vice
President, Gilliand and Lockridge each testified clearly and
credibly that the Executive Board recommended arbitration
unconditionally without any qualification (Tr. 30, 64, 65, 70, 102,
123, 138, 240); their testimony is supported by President David A.
Barnett's letter dated October 29, 1990, to Ms. Lynn Tuggle, Labor
Relations Specialist for the Depot, that,
". . . four employees . . . agree to let their case be decided by Sam Cash's case
presently in Arbitration . . . you indicated this was all right with management to take
up with arbitrator who is picked for Sam Cash's case
. . . . " (G.C. Exh. 6);
by Mr. Gilliand's testimony that he prepared a letter to the
Commander of the Depot for Mr. Barnett's signature invoking
arbitration (Tr. 138); that he saw such letter in the file (Tr.
148); and the existence of such signed letter was further shown by
Respondent's production of the letter (Union Exhibit 2 for
identification), although Mr. Barnett had no recollection of it
(Tr. 208, 213). Their testimony is also bolstered by various other
testimony and evidence including, by way of example, the posting of
Mr. Cash's name on the board of pending arbitration cases
maintained in the President's office (Tr. 32, 36, 69, 70, 105, 106,
140, 216); the absence of any notation that Mr. Cash's case was
"conditional" (Tr. 106, 137, 140-183) whereas, Mr. Gilliand
testified without contradiction that if a case were conditional a
notation was placed on the back of the file, " . . . to let us know
. . . to try to get something done." (Tr. 146, 149); the repeated
assurances to Mr. Cash that the Union was waiting on a list of
arbitrators before going forward with the arbitration (Tr. 33-36,
37-39, 66, 67, 71, 77, 105, 124-125, 126, 139); etc. Only Ms.
Flowers testified that the Executive Board gave only conditional
approval of arbitration with the understanding that there was no
intent to arbitrate the case but only to provide time to try and
settle the case (Tr. 177; 183-184). Indeed, she stated that at that
time, ". . . we did not have enough evidence" to go to arbitration
(Tr. 184).(7) I do not credit Ms.
Flowers' testimony that the Executive Board granted conditional
approval of arbitration for the reasons that I did not find her
testimony in this regard convincing, her testimony in this regard
was directly contradicted by the testimony of Messrs. Cash,
Stracener, Dail, Gilliand and Lockridge, her testimony is wholly
unsupported, indeed, as she conceded, "There is nothing in the file
that says . . . if it's conditional." (Tr. 183), and is contrary to
other evidence and testimony as set forth above. Nor do I credit
the testimony of either Mr. Fortner or Mr. Chapman that: a) the
Cash grievance was not considered by the Executive Committee, as
this was directly contradicted by all other testimony, even
including that of Mr. Barnett who, although he suffered an almost
total lapse of memory, recalled that the Cash grievance did come
before the Executive Board (Tr. 206); or b) that the Grievance
Committee approved conditional arbitration, as this testimony is
contradicted by all other testimony and I did not find their
testimony in this regard credible or convincing. For example, Mr.
Fortner first testified that, " . . . it was dealing with
non-selection, and we saw not [sic] merit to send it on to
arbitration" (Tr. 190) and that this was clearly communicated to
Messrs. Cash and Stracener (Tr. 190); but then, being a very
suggestible witness and being carefully led by Respondent's
attorney, Mr. Fortner then testified, "Yes. We agreed to do that to
see if Management would consider talking about a settlement in it."
(Tr. 190-191); but later, Mr. Fortner stated that the decision of
the Grievance Committee " . . . was to not arbitrate it at all."
(Tr. 194). On the other hand, I found the testimony of Messrs.
Cash, Stracener, Dail, Gilliand and Lockridge in this regard wholly
credible and their testimony is fully consistent with and supported
other evidence and testimony as set forth above. Accordingly, I
credit their testimony and find that the Executive Board approved
arbitration of Mr. Cash's grievance without qualification.
8. As noted above, Mr. Gilliand prepared a letter, for
President Barnett's signature, to the Commander of the Depot
invoking arbitration of the Cash grievance and I find that, as Mr.
Gilliand testified, he saw the letter, signed by President Barnett,
in the Union's file (Tr. 148); however the letter invoking
arbitration was never received by the Depot (Tr. 154). I further
find, as Mr. Gilliand credibly testified and without contradiction,
that he prepared, also for President Barnett's signature, a request
to FMCS in Washington for a list of arbitrators (Tr. 148); however
the record does not show whether this letter was ever signed,
mailed or received by FMCS, although Mr. Gilliand found nothing in
the file from FMCS (Tr. 148).
Mr. Gilliand placed Mr. Cash's name and the issue involved,
"FPM Violation" (Tr. 70), under the "ARBITRATIONS" heading on a
board in President Barnett's office. Mr. Cash checked the board
frequently to see if the Depot and the Union had set a date for the
arbitration hearing. Seeing none, Mr. Cash inquired about the case
on repeated occasions. Between September, 1990, and May, 1991,
President Barnett assured Mr. Cash on various occasions, often in
the presence of other Union officers, that the case would be
arbitrated and that all we were waiting for was a list of
arbitrators (Tr. 32-33, 105, 125, 139, 140, 216). On one occasion,
for example, Mr. Cash testified that President Barnett told him, ".
. . there is nothing to worry about, Sam. This is going to be
arbitrated. We've got a winner here. We're going to win this one."
(Tr. 33).(8) Mr. Cash also
repeatedly spoke to other Union officers about the status of his
case (Mr. Cash may have been guilty of a bit of hyperbole in
estimating the number of times - Stracener, at least 50 times;
Gilliand, at least 50 times; etc., but there is no doubt, whatever
that he did so on repeated occasions as I have found). At no point
prior to Mr. Dail's conversation with Mr. Cash, before he, Dail,
left office, which would have placed it about May, 1991 (not,
February, and I find nothing in his testimony that suggests that
the grievance would not be arbitrated - only that no arbitrator had
been "struck"), did any Union officer ever inform Mr. Cash that his
grievance would not be arbitrated; nor did the Executive Board at
any time rescind, or withdraw, its approval that Mr. Cash's case be
arbitrated (Tr. 125, 140, 241)
9. It is conceded that even if a case is conditionally
approved for arbitration, the proper procedure is to invoke
arbitration (Tr. 183, 186, 209), i.e., in
order to provide additional time, the time limitations of Article
33 - written request for arbitration within 20 working days
following conclusion of step three; request a list of arbitrators
within 10 working days after notification of request for
arbitration (Joint Exh. 1, Article 33, Sections 1 and 2) - mandate
invocation of arbitration and a request for a list of
10. At the time the Union filed Mr. Cash's grievance, Mr.
Cash held a WG-9, Step 3, Machine Tool Operator position. The WG-9,
Step 3, Machine Tool Operator rate was $11.44 an hour (Tr. 43); the
WG-13, Step 1, Toolmaker rate was $12.55 an hour (G.C. Exh. 7), a
difference of $1.11 per hour.
11. Statements by Mr. Jerry Burgess, shop steward in
Building 145 (Tr. 71, 85), when Mr. Cash filed his grievance that
the ". . . Union was not backing nor supporting me on this
grievance issue" (Tr. 86); that President Barnett told Mr. Cash
that Mr. Burgess had come to him on several occasions about Mr.
Cash's grievance (Tr. 87); that later Mr. Burgess told Mr. Cash, ".
. . it would be best if I drop all of this and walk away from it
while I could . . . that if I continued . . ., 'if you or anyone
else continues in this matter I will beat the God damn hell out of
you and put you in the hospital.'" (Tr. 87-88), indicates that
strong feelings existed within the Union in opposition to the Cash
12. Mr. Dail testified that prior to his leaving Union
office he had a call from MER about the Cash grievance; that he
asked the secretary to pull the file to check its status; that she
told him " . . . there had not been an arbitrator struck for the
case." (Tr. 133); and that he had told Mr. Cash (Tr. 133, 134). Mr.
Lockridge was elected Second Vice President in the May, 1991,
election(9) (Tr. 239) at which time
he succeeded Mr. Gilliand in charge of arbitration cases (Tr. 246).
He testified that after he assumed responsibility for the
arbitration cases, Mr. Cash asked about the progress of his
grievance and that he told Mr. Cash that, ". . . paperwork - - the
complete paperwork - - had not been submitted, and I didn't think
it would be going to arbitration because of that." (Tr.
248)(10) Ms. Flowers testified that
after her election in May, 1991, she asked Mr. Lockridge to report
to her on the status of the pending arbitration cases, which
numbered about 20 including Mr. Cash's, and that, "He brought Sam's
[Cash] in and said that there was no paperwork sent in for his to
go to arbitration." (Tr. 180). Ms. Flowers stated, "There was
nothing else I could do. Time was out even if I had wanted to" (Tr.
180). As General Counsel noted, "Apparently, she made no attempt to
contact Depot labor relations personnel to attempt to get the Depot
to waive the Negotiated Agreement's time limits or to otherwise
resuscitate Cash's grievance." (General Counsel's Brief, pp. 15-16)
[Article 33, Section 7, of the Agreement, Jt. Exh. 1, does provide:
"Section 7. Time limitations in this Article can be extended for
unusual reasons if mutually agreed to by both parties."]
Following the Executive Board's unqualified decision to arbitrate his grievance, Mr. Cash repeatedly - over a nine month period - sought and received, from President Barnett and from other officers of Local 1945, unwaivering assurance that it would arbitrate his grievance; nevertheless, Local 1945 failed to file the necessary paperwork to invoke arbitration. The Union's assurances that it would arbitrate his grievance misled Mr. Cash and he reasonably concluded that the Union would arbitrate his grievance - indeed, that the decision in his arbitration case would govern four other grievances which he, as a Chief Steward, had handled (G.C. Exhs. 6 and 8).
Mr. Gilliand, then Second Vice President and responsible for
processing grievances, immediately after the Executive Board
approved arbitration of Mr. Cash's grievance, placed Mr. Cash's
name and the issue involved, "FPM violation", on the "Arbitration"
board in President Barnett's office and his name remained on the
"Arbitration" board at least through May 14, 1991, the date of Ms.
Flowers' election as President of Local 1945. Mr. Gilliand prepared
two letters for President Barnett's signature: one, the letter
invoking arbitration of Mr. Cash's grievance; the other, the letter
to FMCS requesting a list of arbitrators. President Barnett signed
the letter invoking arbitration but it was not received by the
Depot. The record does not show that the letter to FMCS was ever
signed; but it does show that the Union's file contained no
response from FMCS. Mr. Gilliand also prepared a letter dated
October 29, 1990, for President Barnett's signature to Ms. Tuggle,
a Depot Labor Relations Specialist. This letter, General Counsel
Exhibit 6, was signed by President Barnett and President Barnett
told Mr. Stracener that he had sent the "memo" (G.C. Exh 6) to Ms.
Tuggle (Tr. 107). President Barnett professed to have no
recollec-tion of the letter invoking arbitration (Union Exhibit 2
for identification) and refused even to acknowledge or deny his
signature. He professed to have no recollection of General Counsel
Exhibit 6, but did admit that it looked like his signature. I have
found that President Barnett discussed General Counsel Exhibit 6
with both Mr. Cash and Mr. Stracener and that he gave each a copy
of the letter to Ms. Tuggle. Not only did President Barnett on
repeated occasions tell Mr. Cash that the Union was merely waiting
to receive a list of arbitrators, but, on October 29, 1990, Mr.
Barnett in his letter to Ms. Tuggle stated, inter alia, ". . . Sam Cash's
case presently in Arbitration . . ." and, ". . . take up with
arbitrator who is picked for Sam Cash's case . . . ." (G.C. Exh.
6). As Mr. Cash's grievance had been denied at the third step by
Mr. Bickerstaff (G.C. Exh. 5) in early September, 1990 (Tr. 28), it
is reasonable to assume that Ms. Tuggle would have inquired about a
pending Cash arbitration case, if not initially in her discussion
with Mr. Gilliand, certainly after receipt of Mr. Barnett's October
29, 1990, letter, for the reason that there was no such arbitration
pending as the Depot never received any document invoking
arbitration of the Cash grievance and, by then, the time within
which to request arbitration had expired. (Tr. 154, 155). Ms.
Tuggle was not called as a witness and, in the absence of any
explanation for her absence, I draw the adverse inference that she
did call to President Barnett's attention the fact that the Depot
had received no document invoking arbitration of Mr. Cash's
With knowledge that arbitration had not been invoked,
President Barnett, neverthless, continued, repeatedly, to assure
Mr. Cash that his case would be arbitrated - that the Union was
merely waiting to receive a list of arbitrators. Why this blatent
duplicity? Why did President Barnett "string" Mr. Cash along, to
say nothing of his fellow officers, e.g.,
Stracener (Tr. 105), Dail (Tr. 124, 125, 126), Gilliand (Tr. 139)
and Lockridge (Tr. 241, 249)? Why did President Barnett refuse to
acknowledge his signature on the letter invoking arbitration and on
the letter to Ms. Tuttle? What was behind President Barnett's loss
of memory? We do not know. The record does show that shop steward
Burgess talked to President Barnett on several occasions about Mr.
Cash's grievance and that Mr. Burgess harbored deep animosity
toward Mr. Cash over the grievance, but whether this influenced Mr.
Barnett's actions, or brought about the failure to invoke
arbitration and/or to request that FMCS furnish a list of
arbitrators, can only be speculated; but the record establishes, as
General Counsel states, ". . . that the Union first misled Cash to
believe that it would invoke arbitration; then deceived him into
believing that it had, in fact, invoked arbitration; and finally,
told him that once it received a list of arbitrators, it would be
prepared to move ahead with the arbitration of his grievance (and,
indirectly, the four related grievances)." (General Counsel's
Brief, p. 18). I fully agree with General Counsel that the Union's
actions amounted to more than mere negligence; that they were
repeated, deliberate, and unjustified, and caused Mr. Cash to lose
his right to pursue his grievance.
The Authority, after reviewing the duty of fair
represen-tation, first set forth the standard of fair
representation where union membership is not a factor, in
of Federal Employees, Local 1453, 23 FLRA 686 (1986)(11) (hereinafter, "NFFE"), as follows:
". . . where union membership is not a factor, the standard for determining
whether an exclusive represen-tative 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."
(id, at 691)
In NFFE, supra the Authority dismissed the consolidated
complaint because there was no showing that the union's actions
constituted other than mere negligence or miscommunication (as to
Kenneth A. Crawford) and that General Counsel had not established
that the union had deliberately and unjustifiably treated an
employee differently from other unit employees (as to Clara Mae
Shortly after NFFE, supra, the Authority decided International Associated of Machinists and Aerospace Workers,
Local 39, AFL-CIO, 24 FLRA 352 (1986)(hereinafter
"IAM"), where it applied the standard set
forth in NFFE, supra, and found that the union's actions violated the
"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 deliber-ately 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." (24 FLRA at 353).
As General Counsel states,
"Even in the absence of proof of any hostile motive, a union may still pursue a
course of action or inaction that is so unreasonable and arbitrary as to violate the duty
of fair representation. Griffin v. United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, 469 F.2d 181, 183 (4th Cir. 1972), cited with
approval, U.S. Air Force, Loring Air Force Base, Limestone, Maine, 43 FLRA 1087,
1099 (1992) (Loring Air Force Base). Arbitrary conduct by a union can violate the duty
of fair representation. ALPA v. O'Neill, 111 S. Ct. 1127, 1130 (1991)(a union breaches
its duty of fair representation if its actions are either arbitrary, discriminatory, or in bad
faith). In this regard, the NLRB has held:
" . . if a duty to avoid arbitrary conduct . . . means anything, it must mean at
least that there be a reason for action taken. Sometimes the reason will be
apparent, sometimes not. When it is not the circumstances may be such that
we will have no choice but to deem the conduct arbitrary if, the union does
not tell us what it is.
General Truck Drivers, Warehousemen, Helpers and Automobile Employees, Local
315, 217 NLRB 616, 617 (1975), cited with approval, Loring Air Force Base at 1099.
See also Local 3036, New York Taxi Drivers Union, SEIU, AFL-CIO, 280 NLRB
995, 996 (1986) (a union violated its duty of fair representation by the manner in which
it processed a grievance because the union presented no evidence that it acted
reasonably)." (General Counsel's Brief, pp.
Here, General Counsel has established that Mr. Cash relied on the repeated misrepresentations of President Barnett and other Union officers regarding the Union's stated intention to arbitrate his grievance. The Union's conduct was arbitrary and at no point did the Union present any credible evidence to explain that conduct. This is not a case of mere negligence as of miscommunication. To the contrary, the record shows a nine-month program of deception and deliberate and intentional misconduct. At no point during this nine-month period did the Union state or imply to Cash that it had no intention of arbitrating his grievance.(12) He relied on these assurances and, as a result of his reliance on these repeated assurances, Mr. Cash has lost the right to have his grievance arbitrated. The Union breached its duty of fair representation under
§ 14(a)(1) of the Statute and thereby violated §§ 16 (b)(1) and
(8) of the Statute.
General Counsel seeks, ". . . a make-whole remedy based on
the $1.11 hourly difference (that is, the amount Cash lost as a
result of the Union's conduct) running from the date the Union
should have invoked arbitration (September 1990) to the date of a
ruling in this matter . . . In the alternative, the time period for
calculating the make-whole remedy should run from September 1990
until September 3, 1991 (the date Cash filed the unfair labor
practice charge." (General Counsel's Brief, p. 24). A make-whole
remedy (i.e, a backpay remedy, albeit
circumscribed either by the date of decision herein or by the date
of filing the ULP charge), is not warranted in this case since the
record fails to show that the Union's breach of its duty
contributed to any loss which is compensable. Service Employees International
Union, Local 556, AFL-CIO, 17 FLRA 862 (1985); United
Steelworkers of America, AFL-CIO v. NLRB, 692 F. 2d 1052, 1058 (7th Cir. 1982).
The Grievance Committee rejected Mr. Cash's grievance for
arbitration because it appeared to the Committee that his
non-selection was being challenged which, under the Agreement, was
nongrievable. The Executive Board approved arbitration of the
grievance after Messrs. Cash and Stracener made it clear that
non-selection was not being grieved but solely the asserted
violation of the Federal Personnel Manual. Consequently, had the
grievance been sustained the selections for permanent positions
would have been set aside, but nothing in the record suggests that
Mr. Cash could have been awarded the position. Rather, the
selections for the permanent positions would have had to be made
through competitive procedures.
General Counsel's further request, that the Union be ordered
to seek permission from the Depot to waive the time limits set
forth in the Agreement and agree to arbitrate the grievance, will
be granted. To assure that the strongest possible case be made to
the Depot, I shall order that the Union provide representation by
its own legal counsel, or outside legal counsel if appropriate, to
seek a waiver of time limits under the negotiated grievance
Having found that Local 1945 violated §§ 16(b)(1) and (8) of
the Statute it is recommended that the Authority adopt the
Pursuant to § 18(a)(7) of the Statute, 5 U.S.C.§ 7118(a)(7),
and § 2423.29 of the Regulations, 5 C.F.R. § 2423.29, it is hereby
ordered that the American Federation of Government Employees, Local
1945, Bynum, Alabama, shall:
1. Cease and desist from:
(a) Failing to fairly represent Sam Cash, or any
other employee, as required by § 7114(a)(1) of the Statute.
(b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Statute:
(a) Fairly represent Sam Cash, and all other
employees in its unit of exclusive recognition, as required by §
7114(a)(1) of the Statute.
(b) Seek permission, through its own legal counsel,
or outside legal counsel if appropriate, from the Anniston Army
Depot, Anniston, Alabama, to waive the time limits under the
negotiated grievance procedure to arbitrate the grievance of Sam
Cash and, if the time limits are waived and Anniston Army Depot
agrees to arbitrate the grievance, provide Mr. Cash, upon request,
with Union representation by its own legal counsel, or outside
legal counsel if appropriate, to handle the arbitration
(c) Post at its business office, at its normal
meeting places, and at all places where notices to members, and to
employees of the Anniston Army Depot are customarily posted, copies
of the attached Notice or forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms, they shall
be signed by the President of the American Federation of Government
Employees, Local 1945, and they shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including
all bulletin boards and all other places where Union notices to
members and to 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.
(d) Pursuant to § 2423.30 of the Regulations, 5
C.F.R § 2423.30, notify the Regional Director, Atlanta Region,
Federal Labor Relations Authority, 1371 Peachtree Street, N.E.,
Suite 122, Atlanta, Georgia, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 14, 1993
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT fail to fairly represent Sam Cash, or any other unit
employee, as required by § 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
WE WILL fairly represent Sam Cash, and all other employees in
our unit of exclusive representation, as required by § 7114(1)(1)
of the Federal Service Labor-Management Relations Statute.
WE WILL seek permission, through our own legal counsel, or
outside counsel if appropriate, from the Anniston Army Depot,
Anniston, Alabama, to waive the time limits under our negoti-ated
grievance procedure to arbitrate the grievance of Sam Cash.
WE WILL, if the Anniston Army Depot, Anniston, Alabama, agrees
to waive the time limits and arbitrate the grievance, provide Mr.
Cash, upon request, with Union representation by our own legal
counsel, or outside legal counsel if appropriate, and will pursue
the arbitration in good faith and with all due diligence.
Dated: ___________________ By: ______________________________
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 members or employees have any questions concerning this
Notice or compliance with its provisions, they may communicate
directly with the Regional Director, Atlanta Region, Federal Labor
Relations Authority, whose address is: 1371 Peachtree Street, NE,
Suite 122, Atlanta, Georgia 30367, and whose telephone number is:
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statuary reference, e.g., Section 7116(b)(1) will be referred to, simply, as, "§ 16(b)(1)".
2. General Counsel, in n.1, p.1 of his Brief, very correctly notes that Union Exhibit 1 was rejected (Tr. 47). Although I specifically instructed the reporter to place rejected Union Exhibit 1 in a separate "Rejected Exhibit File", no such file accompanied the transcript and exhibits this Office received; nor was the rejected exhibit received by this Office. General Counsel also correctly notes that Union Exhibit 2 for identification was identified (Tr. 187, 207, 209) but never offered as an exhibit. The transcript correctly notes that Union Exhibit 2 was identified but was neither received nor rejected (Tr. 4). Although the Regional Office sent a facsimile copy to this Office, it was never part of the "transcript" so that there is nothing to remove from the transcript as General Counsel requests. To avoid any possible doubt, Union Exhibit 2 for identification was not offered or received as an exhibit.
3. The date stated at pages 22 and 23 as 1991 obviously was wrong (e.g., grievance was filed May 21, 1990 (G.C. Exh. 3)) and later was stated to have been wrong (Tr. 24); however, to avoid any possible misunderstanding, the year 1991 on pages 22 and 23 of the transcript is hereby corrected to read, "1990".
4. Mr. Barnett did not seek re-election in 1991 and his term ordinarily would have expired in February, 1991; but the first election, held in February, was set aside and Mr. Barnett continued to serve as President until May, 1991, when, following the second election, he was succeeded as President by Ms. Charlotte Flowers (Tr. 17, 173, 205, 206).
5. Mr. Gilliand, then Second Vice President and Chairman of the Grievance Committee; Ms. Charlotte Flowers, then Seventh Vice President and member of the Grievance Committee each credibly so testified and I credit their testimony that the Grievance Committee rejected Mr. Cash's grievance for arbitration. Mr. William Kenneth Lockridge, then Sixth Vice President and a member of the Grievance Committee, testified that the Grievance Committee merely recommended that
Mr. Cash's grievance go to the Executive Committee (Tr. 240). Messrs. Jimmy Fortner, then Seventh Vice President, and Robert Lee Chapman, then third Vice President, testified that the Grievance Committee found the grievance without merit
(Tr. 190, 201), but then assessed that the Grievance Committee granted "conditional" arbitration, i.e., no intention to arbitrate but just to buy more time, although Mr. Fortner later testified that the vote of the Grievance Committee "was to not arbitrate it at all." (Tr. 194). For reasons set forth more fully hereinafter, I do not credit the testimony of Messrs. Fortner and Chapman that the Grievance Committee approved or recommended "conditional arbitration". Mr. B. Dale Stracener, then Fifth Vice President and Mr. Cash's designated representative on the grievance, did not recall that Mr. Cash's grievance was ever presented to the Grievance Committee (Tr. 110) and Mr. Cash asserted that his grievance was never presented to the Grievance Committee, i.e., that, as he was advised to do, the Grievance Committee was bypassed and the grievance was presented directly to the Executive Committee (Tr. 28, 61, 62). I do not credit
Mr. Cash's denial, and give no weight to Mr. Stracener's lack of memory, that the grievance was considered by the Grievance Committee, although it is probable that at the Grievance Committee level the grievance was handled in a perfunctory manner largely, or entirely, on the basis of Mr. Bickerstaff's denial (G.C. Exh. 5), since the record shows that it was not until meeting with the Executive Board that Messrs. Stracener and Cash made it clear that, "We were grieving the fact that they weren't adhering to the procedure laid out in the FPM" (Tr. 112); that, ". . . we wasn't [sic] grieving non-selection. We was [sic] grieving the FPM Chapter 335 violation." (Tr. 112).
6. It is conceivable, as Mr. Gilliand stated (Tr. 137), that the matter was brought to the Grievance Committee a second time at which point the Grievance Committee recommended arbitration; but this is wholly unsupported, was contradicted, and is illogical. Had the Grievance Committee recommended arbitration there would have been little or no reason for Mr. Cash's appearance before the Executive Board since the Executive Board routinely follows the recommendations of the Grievance Committee (Tr. 206-207).
7. Mr. Fortner and Mr. Chapman, as noted above, testified that the Cash grievance was never, to their knowledge, considered by the Executive Committee; and each testified that the Grievance Committee gave only conditional approval of arbitration (Tr. 190, 191, 201, 202, 203).
Mr. Stracener testified that he heard Mr. Barnett tell
Mr. Cash on a couple of occasions that his case, " . . . was being processed and they were working on a list of arbitrators." (Tr. 105). Mr. Dail testified that he heard President Barnett tell Mr. Cash that " . . . they were waiting to strike an arbitrator." (Tr. 125). Mr. Gilliand testified that, ". . . Sam used to stay over in the mornings sometimes. He would come by there, and me and David Barnett and David Dail would be there. He would want to know from all of us, you know, how his case was going. We told him it was still pending. We was doing what we could . . . I heard David tell him that, you know, his case was still there . . ." (Tr. 139). Mr. Cash testified that in November, 1990, he went to President Barnett's office to check on his case; and
Mr. Barnett ". . . as always, informed me that it was being arbitrated - - waiting for a list of arbitrators. I then asked him about the other four grievances that had come back from third step denied. Mr. Barnett stated to me yes, Sam, I have a document for you. He handed me this document that he had signed where he identified that Management and the Union had made an agreement that my arbitration would be controlling on these other four cases." (Tr. 38; G.C. Exh. 6).
Mr. Stracener testified concerning the other grievances which involved the same FPM violation; testified concerning Messrs. Barnett's and Gilliand's involvement at the third step and their agreement with MER (G.C. Exh.6); that Mr. Barnett gave him a copy of the letter to Ms. Lynn Tuggle confirming the agreement (G.C. Exh. 6); and that he had also given Mr. Cash a copy (Tr. 107). Mr. Barnett denied that he ever talked to
Mr. Cash about arbitration of his case; had no recollection of anyone asking about Mr. Cash's case; had no recollection of talking to Mr. Cash or to Mr. Stracener about the grievances of Jackson, Porter, Elder and Styles; when shown the letter to Ms. Lynn Tuttle (G.C. Exh. 6), he said the signature looked like his but he had no recollection of the document (Tr. 211); and when shown Union Exhibit 2 for identification, the letter invoking arbitration, he had no recollection of the document. I found Mr. Barnett to be a thoroughly unbelievable witness (Tr. 228, 230). I found Messrs. Cash, Stracener, Dail and Gilliand to be wholly credible witnesses and I credit their testimony that Mr. Cash repeatedly inquired about his case from September, 1990 to May, 1991; that Mr. Barnett did repeatedly assure Mr. Cash that his case was being processed and they were waiting on a list of arbitrators; and that
Mr. Barnett discussed G.C. Exh. 6 both with Mr. Cash and
Mr. Stracener as they each credibly testified.
(Tr. 247, 248).
10. Mr. Cash testified that in the last week of June, 1991, Mr. Lockridge came to his work area and told him that his case would not be arbitrated," . . . That the proper paperwork was not submitted to invoke arbitration." (Tr. 41-42). Mr. Cash further stated, "I asked him why, and he said he didn't know. He couldn't understand it. I asked him has this ever happened before. He said no . . . ." (Tr. 42).
12. I am aware, of course, that
Mr. Dail testified that prior to his leaving Union office he had a
call from MER about the Cash grievance; that he asked the secretary
to pull the file and check its status; that she told him, ". . .
there had not been an arbitrator struck for the case" (Tr. 133);
and that he had told Mr. Cash (Tr. 133, 134). Respondent asserts
that, "Mr. Cash failed to acknowledge that back in February 1991,
Mr. Dail told him that . . . there had not been an arbitrator
struck in his case . . but took no action to personally inquire of
his case, despite the clear red flag being raised." (Respondent's
Brief, p. 11).
My impression at the time Mr. Dail testified was that this occurred just before he left office. Ordinarily, this would have been February; but because the first election was set aside and a second election ordered, the officers, including Mr. Dail, did not leave office until May, 1991. Accordingly, I have concluded that this conversation with Mr. Cash took place in May, 1991, not February, 1991. But, in any event, this merely confirmed what President Barnett, and other Union officers, repeatedly told Mr. Cash, n