Plaintiff Vera Young appeals from a judgment entered in January 1990 in the United States District Court for the Southern District of New York, after a bench trial before Robert L. Carter, J., in favor of plaintiff’s employer, defendant United States Postal Service (Postal Service). Plaintiff claimed that the Postal Service terminated her employment in violation of the “just cause” provision of the agreement between plaintiff’s collective bargaining representative, the American Postal Workers Union (the Union), and the Postal Service. This appeal raises significant issues growing out of the hybrid nature of the complaint in this case, which alleges a breach of the duty of fair representаtion by the Union and a breach of the labor agree *306 ment by the Postal Service. For reasons set forth below, we agree that judgment for the Postal Service was correct, although we disagree with the district court’s conclusion that plaintiff had failed to establish the Union’s breach of its duty of fair representation. For reasons set forth more fully below, we therefore affirm.
Background
Dispute Leading up to the Lawsuit
This case has a complex factual and procedural background. The facts, as found by the district judge after a three-day trial at which 13 witnesses testified, were as follows. Plaintiff began her employment with the Postal Service in December 1969. She was dismissed 14 years later, in December 1983, at which time she had been working as a. window clerk in the Post Office located in Nanuet, New York. For some time prior to plaintiff’s discharge, Paul Avila, her immediate supervisor, had been dissatisfied with her job performance. In February 1983, the two had an argument over plaintiff’s refusal to follow Avila’s orders, and he issued a letter of warning countersigned by then-Postmaster Jоhn J. Mattison (subsequently succeeded by Aileen Wynne).
In mid-August 1983, plaintiff and Avila had two more confrontations over her refusal to follow orders; the second resulted in Avila’s calling the police to make plaintiff leave the Post Office. Avila then suspended plaintiff for five days commencing August 29. Before the suspension became effective, hоwever, plaintiff became hysterical on the job on Friday, August 26. She was then given sick leave for the remainder of the day and the next day and escorted out of the building by the police. (Plaintiff later claimed that she was then told not to come back to work until further notice, but the district court rejected the claim.)
Plaintiff subsequently advised the Postal Service by letter dated August 31 that she was going to the “Rest Home Clinic of Trincheras en Venezuela” for treatment of hypertension; she did not provide any address or indicate the intended length of her stay. Without receiving any oral or written authorization for taking leave, plaintiff left for Venezuela and remained there through early October.
In September 1983, Avila sent plaintiff three letters. The first advised her that, in accordance with the employee manual, she would have to present appropriate documentation from her attending physician before returning to work. The second requested a statement from her attending physician and the date of her expected return to work. It indicated that failure to comply with the requirements for obtaining sickness leave would result in a charge of A.W.O.L. These letters, which were sent to plaintiff’s home address, were read to her over the telephone by a friend. The third letter, which followed a day after the second, provided notice of removal. The letter advised plaintiff that she was to be discharged effective October 31, 1983, for being A.W.O.L. since September 3, 1983, and for not providing the requisite supporting medical documentation. The letter also indicated that, in the decision-making process, account had been taken of plaintiff’s prior disciplinary record.
When plaintiff returned to New York in mid-October, she provided the Postal Service with a note from her New York private physician, stating that she had “returned from her therapy in Venezuela and is physically fit” to return to work. Plaintiff also submitted a document in Spanish on Las Trincheras letterhead and stamped with the name of an auxiliary nurse, which indicated that plaintiff had been administered thermal treatment and her recovery was satisfactory.
The Postal Service subsequently rescinded the September notice of removal to allow physical and psychiatric examinations of plaintiff to determine whether a disability discharge was warranted. Plaintiff then refused to allow a psychiаtric examination unless she could see the psychiatrist’s report before it was transmitted to the Postal Service, a condition the psychiatrist refused to accept. In November the notice of removal was reinstated, effective December 5, 1983.
*307 While plaintiff was still in Venezuela, the Union filed a timely Step I grievance under the collective bargaining agreement (the Agreement) to contest the September notice of removal. After Avila refused to rescind the notice of removal, the Union initiated a Step II grievance, which was an appeal to Postmaster Aileen Wynne. When the notice of removal was reinstated in November, the Union rеnewed its Step II grievance, which was denied. The Union subsequently failed to file a timely Step III grievance.
In July 1984, a local union representative advised the Union’s national office that a Step III grievance had been filed but that the records had been lost in moving the local office, and in October 1984, the Union filed a Step III grievanсe, back-dated to October 1983. Thereafter, the Union asserted before the arbitrator that the Step III grievance had been filed in October 1983, but had been lost in the mails. This claim was rejected by the arbitrator, and he dismissed the grievance as untimely.
Proceedings in the Court Below
Plaintiff began this action in December 1986, basing jurisdiction on 29 U.S.C. § 185(a) and/or 39 U.S.C. § 1208(b). Plaintiff claimed that the Pоstal Service did not have just cause to discharge her and therefore violated the Agreement and that the Union had breached its duty to her of fair representation. Since plaintiff had already settled her claim against the Union, however, she named only the Postal Service as defendant. The case was tried in April 1989, after plaintiff had unsuccessfully petitioned this court for a writ of mandamus directing the district court to grant her a jury trial.
In re Young,
Discussion
Union’s Duty of Fair Representation
The threshold issue before us is whether the district court was correct in holding that the Union had not breached its duty of fair representation to plaintiff. If we affirm that ruling, that ends the appeal because the Union’s breach is a prerequisite to consideration of the merits of plaintiff’s claim against her former еmployer for improper discharge. See
DelCostello v. International Bhd. of Teamsters,
That is what plaintiff attempted to show here. The district court found that the Union pressed plaintiff’s discharge grievance through the first two steps of the grievance procedure, but failed to proceed to Step III (the last step prior to arbitration) within the time period required under the Agreement. The Union did ultimately submit the grievance to arbitration, but the arbitrator did not reach the merits; he ruled for the Postal Service because the Step III appeal had not been timely filed. In the ordinary case, this would extinguish plaintiff’s right to challenge her discharge under the Agreement. But, plaintiff ar *308 gues, she should not be barred from pressing her claim in a judicial forum because the Union did not represent her fairly.
A union breaches its duty of fair representation when its conduct toward an employee it represents is “arbitrary, discriminatory, or in bad faith.”
Vaca,
The district court rejected this argument on the following reasoning:
Here there is no evidence in the record to indicate why the grievance was not pursued. Young has settled with the union, and presented no evidence on this issue. It is, however, plaintiff’s burden tо prove the union breached its duty, not the employer’s to show that it did not. On the basis of this record Young did not meet her burden. Therefore, there is a failure of proof of the claim of the union’s breach of the duty of fair representation.
Plaintiff argues to us that the district court erred in this holding, citing such cases as
Dutrisac v. Caterpillar Tractor Co.,
The district court held that plaintiff had to show “why the grievance was not pursued” and, failing that, did not carry her acknowledged burden of persuasion. In the same vein, the Postal Service argues to us that the Union’s failure to go to arbitration in timely fashion might have been a deliberate, reasoned action based upon its view of the merits of plaintiff’s claim and therefore not a breach of duty to plaintiff at all. See
Vaca,
That ought to be enough to oblige the Postal Service to come forward with еvidence, if it has any, to show that really the Union let the deadline go by because it thought the grievance had no merit. We need not go so far as accepting plaintiff’s argument based upon Dutrisac, Ruzicka I, and Ruzicka II that she need bear only the burden of going forward with some evidence of the Union’s breach. We leave that issue open. On this record, plаintiff proved the Union’s breach, and the district court was thus required to consider her claim on the merits.
It is true that the Union was not a party to the proceedings in the district court; indeed, the language in the judge’s opinion quoted above indicates that this fact might have influenced his decision. However, the Union’s absence from the case shоuld not add to the plaintiff’s burden, and the Postal Service is in no better position than the *309 Union would have been. In the absence of the Union, on this record the Postal Service had to produce evidence that the Union’s tardy filing was based upon a justifiable reason. There is no reason to believe that it was.
Just Cause for the Discharge
At this point, however, plaintiff has succeeded in only half of her case on appeal. It is not enough to persuade us that, because of the Union’s breach, the district court had to rule on the merits of her discharge claim. The district judge did so rule, and squarely held that “the Postal Service had just cause for terminating Young.” Plaintiff must also persuade us that the district court erred in this ruling.
It is not entirely clear, however, what plaintiff’s burden is on that issue. Ordinarily, an appellant in a nonjury civil case has at least a considerable burden in attacking findings of fact, since we must satisfy ourselves that such findings are clearly erroneous before we may overturn them. See Fed.R.Civ.P. 52(a). In such a case, however, an appellant’s burden on issues of law is merely to persuade us that the district judge was wrong, not that the judge was clearly wrong. Further, we would usually regard a determination whether just cause existed for discharge as a question of law or a mixed question of law and fact to be treated on review as a question of law. But the question of the proper standard of review here is more complicated, since it is arguable Judge Carter was, in effect, performing the function of an arbitrator under the Agreement in deciding whether the Postal Service fired plaintiff for just cause. On this theory, it is further arguable that we should therefore give the judge’s interpretation and application of the Agreement thе extreme deference an arbitrator’s ruling would have. See
United Steelworkers of America v. Enterprise Wheel & Car Corp.,
The district judge found as a fact that plaintiff’s claim that she was told on August 26, 1983 not to come back to work until further notice was not credible. Such a finding was certainly not clearly erroneous and was obviously based upon the judge’s evaluation of the evidence before him, including plaintiff’s testimоny. True, plaintiff argues to us that she believed that she was so told and that the judge did not find to the contrary. The latter point seems dubious at best, since the judge’s finding directly rejected her testimony. In any event, if the finding stands — as it must — such a belief by plaintiff would have had no reasonable basis. Once the finding was made, the record, which included prior acts of dеfiance, fully supports the judge’s conclusion that the discharge was for cause.
Plaintiff argues that the district judge committed various errors of law, including the basic one of applying an incorrect standard in determining whether there was just cause for discharge. According to plaintiff, the judge used the inappropriate statutory “efficiеncy of the service” standard of review applicable to appeals of disciplinary actions brought to the Merit Systems Protection Board. See 5 U.S.C. § 7513. Although the judge did refer to the “efficiency of the service” standard and cited decisions applying section 7513, he ended up by concluding more broadly that “[ujnauthor-ized absenсes without leave are unquestionably a just cause for termination.” That does not sound to us like undue deference to the Postal Service. Nor can we say that it is an unsound conclusion as a matter of law. It is simple common sense that a postal employee cannot defiantly take off for an extended period of timе without clearing her action with her supervisor and that such action may result in discharge regardless of the years she has been employed. This is particularly so in plaintiff’s case, since she had been a shop steward whose duties included representing employees in disputes concerning leaves of absence.
*310 Plaintiff contеnds that an arbitrator, familiar with the many labor arbitration decisions, the principles that animate them and the proper construction of labor contracts, would not have found just cause for discharge of a 14-year employee. This argument was buttressed by the testimony at trial of Professor Clyde Summers, an acknowledged scholar аnd expert in the field. An experienced labor arbitrator might carry out this prediction, but then again might not. In any event, that is not the issue before us. Our job is to decide whether the judge could properly hold, on the record before him, that the Postal Service had just cause for discharge. We have no doubt that he (or for that matter, a labor arbitrator) could so decide.
Accordingly, we affirm the judgment of the district court. We compliment both counsel for excellent oral arguments.