American Postal Workers (Postal Service)

National Labor Relations Board - Board Decisions

Mar 5, 1993

310 N.L.R.B. 599 (N.L.R.B. 1993)

599
310 NLRB No. 93
AMERICAN POSTAL WORKERS (POSTAL SERVICE)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis or reversing the findings.
We deny the General Counsel’s motion to strike the Respondent’s
argument that, because employees Johnson and Harrison were acting
as supervisors on the days when the Respondent’s agent,
DeGennaro, conditioned the further processing of their grievances on
their joining the Respondent, they were not covered by the Act. For
the reasons stated by the judge, we find no merit in the argument.
Even assuming, arguendo, that Johnson and Harrison were acting
as supervisors on the days of the coercion in question, we note that
the Respondent does not dispute that they would return to the unit
in the future. In this respect, the circumstances are analogous to
those in the construction industry where, as the Board has observed,
employees frequently cycle in and out of supervisory jobs. The
Board has held that such individuals are protected from union coer-
cion with respect to their rights as employees under Sec. 8(b)(1)(A)
because, regardless of when the coercion occurs, the coercion can
carry over to intimidate the individual when he or she again becomes
a statutory employee. See Plumbers Local 725 (Powers Regulator
Co.), 225 NLRB 138 (1976), enfd. 572 F.2d 550 (5th Cir. 1978).
Likewise, in this case the Respondent’s refusal to continue proc-
essing the women’s grievances would have likely intimidated them
in the exercise of their Sec. 7 rights when they later returned to em-
ployee status.
2 The judge found that the Respondent unlawfully coerced em-
ployee Rhonda Johnson to sign a dues-checkoff authorization form,
but apparently inadvertently failed to conclude that the conduct vio-
lated Sec. 8(b)(1)(A). We, therefore, grant the General Counsel’s ex-
ceptions 7, 8, and 10, and amend the conclusion, and modify the rec-
ommended Order and notice to correct this omission. We also grant
the General Counsel’s exception 9 and change the style of the notice
to read ‘‘Notice to Employees and Members.’’
American Postal Workers Union, Queens Area
Local (Postal Service) and Rhonda Johnson
and Diane Harrison. Cases 29–CB–7753–P and
29–CB–7754–P
March 5, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 14, 1992 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed exceptions, a supporting brief,
and a brief answering the Respondent’s exceptions and
moved to strike part of the Respondent’s argument.
The Respondent thereafter filed an opposition to the
General Counsel’s motion to strike.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, as amended, and to adopt the recommended
Order, as modified.2
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraph 2(d).
‘‘(d) Coercing any employee to sign a dues-checkoff
authorization form.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ican Postal Workers Union, Queens Area Local, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and reletter
the subsequent paragraph.
‘‘(d) Coercing any employee to sign a dues-checkoff
authorization form.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Reimburse Johnson for all dues that have been
deducted from her pay since she executed the dues-
checkoff authorization in about September 1990, with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees of the United
States Postal Service that their grievances would be
processed only if they joined American Postal Workers
Union, Queens Area Local and signed a dues-checkoff
authorization.
WE WILL NOT threaten employees of the Postal
Service that in order for them to be successful in their
grievances, they first have to join the Union.
WE WILL NOT threaten employees of the Postal
Service that unless they joined the Union their griev-
ances would be delayed.
WE WILL NOT coerce employees to sign a dues-
checkoff authorization form.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to relate to the year
1990.
2 The unopposed motion of General Counsel, in his brief, to cor-
rect the transcript is granted.
3 The Respondent was, at the time, conducting a promotion to in-
crease membership. Included in this promotion were free T-shirts, a
credit card, and a raffle for a free weekend trip.
WE WILL rescind and revoke the membership of
Rhonda Johnson and WE WILL inform her, in writing,
that this has been done.
WE WILL reimburse Johnson, with interest, for all
union dues deducted from her pay since September
1990.
AMERICAN POSTAL WORKERS UNION,
QUEENS AREA LOCAL
Jonathan Leiner, Esq., for the General Counsel.
Joel C. Glanstein, Esq. (O‘Donnell, Schwartz, Glanstein &
Rosen), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 6, 1991, in Brooklyn, New
York. The consolidated complaint, which issued on Novem-
ber 27, 1990, was based on unfair labor practice charges
filed by Rhonda Johnson and Diane Harrison on September
20, 1990.1 The complaint alleges that American Postal
Workers Union, Queens Area Local (Respondent) engaged in
the following activity in violation of Section 8(b)(1)(A) of
the Act:
1. On or about September 9, by Arthur DeGennaro, at the
JFK facility, informed Johnson that he would process her
grievance only if she joined Respondent.
2. On or about September 9, by DeGennaro, at the JFK
facility, coerced Johnson to sign a dues-authorization check-
off card for Respondent, by conditioning the further proc-
essing of her grievance upon her executing such a checkoff
authorization.
3. On or about September 9, by DeGennaro, at the JFK
facility, informed Harrison that in order to win her grievance,
she would have to join Respondent.
4. On or about September 9 and 10, by DeGennaro, at the
JFK facility, attempted to coerce Harrison into signing a
dues-checkoff authorization form by repeatedly presenting
her with the form and demanding that she sign it.
5. On or about September 13, by DeGennaro, at the JFK
facility, told Harrison that unless she joined Respondent her
grievance would be delayed.
On the entire record,2 including the briefs received and my
observation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that the Board has jurisdic-
tion over the United States Postal Service by virtue of the
Postal Reorganization Act, 39 U.S.C. § 1209(a).
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE FACTS
The postal facility is located at JFK Airport in Queens,
New York; it dispatches mail that arrives at the airport.
United States Postal Service (Postal Service), and American
Postal Workers Union, AFL–CIO (APWU), have had a col-
lective-bargaining relationship for many years. The collec-
tive-bargaining agreement (Agreement) in effect at that time
of the events herein, was effective for the period July 21,
1987, through November 20. This agreement does not con-
tain a union-security clause and neither Harrison nor Johnson
were members of Respondent at the time of the incidents al-
leged herein. Each has been employed by the Postal Service
for about 10 years, Harrison as a records clerk and Johnson
as a distribution clerk. Johnson, was never a member of Re-
spondent; Harrison became a member of Respondent when
she began her employ with the Postal Service. She resigned
from the Respondent in either 1985 or 1987 and has not been
a member since. The other principal actor herein is Arthur
DeGennaro, Respondent’s clerk craft director, and an admit-
ted agent of Respondent.
The agreement contains provisions governing the assign-
ment of overtime hours. In order to be eligible for overtime
work, eligible employees must place their name on an
‘‘Overtime Desired’’ list, and overtime assignments are made
from this list. Harrison and Johnson each filed a grievance,
pursuant to the agreement, with Steward Robert Griesbeck in
about the end of July alleging that they were denied overtime
work on July 23. At the step 1 meeting these grievances
were denied, and on August 27 they each appealed to step
1A, which is handled by DeGennaro. It is the conversations
that DeGennaro had with Harrison and Johnson, on Sep-
tember 9 and 10, regarding these grievances, that are alleged
to violate the Act.
Harrison testified that on September 9, DeGennaro ap-
proached her at her work station and said that if she did not
join the Respondent she would lose her arbitration. She
asked if that meant that she had to join the Respondent and
he said yes, and he would bring her the required forms to
sign at a later time. This conversation, as well as the others
involving Harrison and Johnson were one-on-one with, ap-
parently, no one overhearing them. Harrison testified that,
about an hour later, DeGennaro again approached her and
gave her dues-authorization checkoff forms and told her to
sign them. She said that she wanted to read them first and
he said that there was no need to read them, ‘‘just sign
them.’’ She repeated that she had to read them first, and he
left. Subsequently that day she had about four more con-
versations with DeGennaro; on each of these occasions, he
asked for the signed checkoff authorization form and she said
that she hadn’t yet had an opportunity to read it. On the final
occasion that day, DeGennaro said that he needed the form
because he was leaving work early to go to the union hall
and he wanted to be sure to get her free T-shirt.3 DeGennaro
601AMERICAN POSTAL WORKERS (POSTAL SERVICE)
4 One of Respondent’s defenses, at the hearing and in its brief is
that on September 9 and 10, Harrison and Johnson were acting su-
pervisors and were therefore not covered employees under the Act.
I reject this defense for a number of reasons: initially, Respondent
admitted in its answer that Johnson and Harrison were bargaining
unit employees, which for a majority of their working time, they
were. The fact that on the days the threats were made to Johnson
and Harrison, they were temporarily acting as supervisors, does not
deprive them of the protection of the Act since the threat emanated
from their bargaining unit duties and rights.
5 In answers to questions on cross-examination, DeGennaro testi-
fied that he discussed joining the Respondent and its charge card at
the ‘‘first conversation’’ while in his direct examination, he testified
that the first conversation only involved her grievance. I do not find
this very significant. On direct examination he testified that he had
two conversations with Johnson on that day, yet, he testified to three
separate incidents. I find it likely that he put the first and second
incident together in his testimony on cross-examination.
testified that he spoke to Harrison on a number of occasions
that day. On the first occasion, he approached her and told
her that he was handling her grievance at step 1A, told her
of the strategy he would be using and that there was a very
good chance that the grievance would be settled or sustained
in her favor. She did not respond. Later that day he told her
that the grievance had been settled in her favor and that she
would be receiving overtime payments. He also asked her if
she was interested in joining Respondent. He told her of the
promotion Respondent was conducting to obtain new mem-
bers. She said that she would think about it. A little later that
day he gave her a dues-authorization checkoff form and told
her that if she wanted to join she should fill it out and return
it to him. She said that she would read it and return it to
him later that day. Later that day he ‘‘ran across her’’ and
asked her if she had filled out the form. She told him that
she had not had a chance to read it, but as soon as she did
she would get back to him. DeGennaro testified that he never
told Harrison that she would lose her grievance or would not
receive the overtime she sought unless she joined the Re-
spondent.
DeGennaro also spoke to Harrison on September 10. Har-
rison testified that on that day, while she was at her letter
sorting machine, DeGennaro approached her with a paper in
his hand and said that she had won her case, but if she did
not sign he would delay her pay claim. She asked if that
meant that she wouldn’t get the money and he said yes. She
told him that was illegal and he said that it didn’t matter
since nobody overheard the conversation. A few minutes
later her supervisor told her that DeGennaro wanted to speak
to her. She went to see him and he gave her another set of
papers for union membership and dues-checkoff authoriza-
tion and told her to sign them. She said that she wouldn’t
sign them. He threw the papers on the desk and said that he
would leave them there and see what happened. DeGennaro
testified that in the early part of that day he asked Harrison
if she had signed the papers. She said that she had misplaced
them and asked for another set of papers. About an hour
later he gave her another set of papers. He never threw any-
thing down at her.
Respondent’s grievance appeal form states that Harrison’s
grievance was settled at step 1A by paying Harrison for 8
hours at the overtime rate. It is signed by DeGennaro, and
the date and ‘‘Date Decision Given’’ is listed as September
10. DeGennaro testified that the settlement was arrived at on
September 9, the date he informed Harrison of the settle-
ment, and the September 10 date is the date he filled out the
form. Harrison testified that she still has not been paid by
the Postal Service pursuant to this settlement. She asked a
clerk in the finance office of the facility about it and she said
that she didn’t know anything about it. She did not speak to
the Respondent about it. DeGennaro testified that he is not
aware whether the Postal Service paid Harrison pursuant to
the settlement. She never complained to him about the lack
of payment and, ‘‘I’m not privy to her pay stubs.’’
As stated above, Johnson also filed a grievance regarding
the denial of overtime work on July 23. She testified that on
September 9,4 DeGennaro approached her at work and said
that her case was in arbitration and that he was handling it;
‘‘for it to be settled I needed to join the union.’’ She said
that she didn’t want to join the Union and he said that to
settle the case she should join the Union. He then told her
about ‘‘perks’’ for joining the Respondent—T-shirts, a trip,
and other things. She asked if they provided a charge card
and DeGennaro said that Respondent offered a charge card
to its members. He again said that she had to join the Re-
spondent to get her case settled. She said that she might be
interested. DeGennaro then gave her Respondent’s authoriza-
tion for deduction of dues, which she signed and returned to
him, and he left. On the following day DeGennaro told her
that her case had been settled, and a couple of months later
she received her money pursuant to the settlement.
DeGennaro testified that he had two conversations with
Johnson on that day. In the first one, he approached her and
told her that he was handling her grievance at step 1A. He
told her of the procedure that he would follow and that, tech-
nically, she was not entitled to the money because she was
an acting supervisor on the day in question. Later that day,
prior to the case being settled, he approached Johnson and
asked her if she was interested in joining Respondent; he told
her of the membership incentive program Respondent was
employing at the time.5 She asked if they provided charge
cards and he told her that the bank ‘‘usually only’’ processed
card applications for Respondent’s members. She asked him
for an application for Respondent and an application for a
charge card. About 45 minutes later he returned, and gave
her a membership application (presumably, an authorization
for deduction of dues), together with pamphlets about mem-
bership and a charge card application. He asked her to fill
out the application for membership, which she did. She asked
about the charge card application, and he said that she should
wait about 2 weeks until her membership application was
processed. Later that day, he met with the Postal Service’s
tour superintendent, who said that he would give him an an-
swer the following morning. On the following morning, the
Postal Service informed him that they agreed to a settlement
of 8 hours at the overtime rate and 3 hours at the penalty
rate. Later that day DeGennaro gave Johnson a copy of the
settlement and she thanked him.
Johnson testified that shortly after she was informed of the
settlement, Griesbeck told her that if she wanted to withdraw
her application for membership in Respondent she should
speak to somebody in personnel at the Postal Service. On the
following day she asked the personnel assistant at the facility
if she could get her card back. This woman told Johnson that
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
she couldn’t find her card, but that the usual procedure was
to withdraw on the anniversary date of membership. She
gave her a form to fill out for this purpose. She filled out
the form, but it was returned to her because she needed
‘‘written permission’’ from Respondent to withdraw. She
called Respondent’s office and left her name and telephone
number and asked him to have someone return her call; no-
body did. Ronald Suslak, president of Respondent, testified
that from September 9 to the date of the hearing, he received
no notice, oral or in writing, from Johnson that she wanted
to withdraw her membership in the Respondent. He testified
that there is a 10 day ‘‘window period’’—from 20 days prior
to the membership anniversary date to 10 days before the an-
niversary date—when members can resign their membership.
DeGennaro testified that subsequent to September 9 and 10,
Johnson never asked him about revoking her membership in
Respondent.
IV. ANALYSIS
It is an undisputed proposition that a union must fairly
represent all the employees in a unit, whether or not they are
members of the union. One aspect of such representation is
to pursue and handle grievances of all unit employees, union
or nonunion, in a fair and impartial manner. A threat by a
union representative that he would not grieve a matter for a
nonmember unless that individual became a member of the
union clearly violates Section 8(b)(1)(A) of the Act. Lea In-
dustries, 261 NLRB 1136 (1982); Plumbers Local 195 (Beth-
lehem Steel), 291 NLRB 571 (1988); and Mail Handlers
Local 305 (Postal Service), 292 NLRB 1216 (1989). The
issue herein is whether DeGennaro made such a threat to
Harrison and Johnson.
This case involves a difficult credibility issue because I
found Harrison, Johnson, and DeGennaro all, apparently,
credible witnesses. Although there are no obvious reasons to
discredit any of them, there are a number of factors which
lead me to credit Harrison and Johnson. The fact that at the
time in question the Respondent was conducting an orga-
nizing drive among the unit employees makes it more likely
that the events occurred as testified to by Harrison and John-
son. It would not be unusual or unheard of for a steward,
or other union representative, to feel some pressure to sign
up employees with an aggressive organizing drive such as
this, and a pending grievance is a good vehicle to employ
in such a circumstance. An additional reason for crediting
Harrison and Johnson is that I can see no reason for them
to lie. They had no apparent grudge against Respondent or
DeGennaro and had won their grievances, although for some
unexplained reason Harrison never was paid the money in-
volved by the Postal Service. Fabricating this story would
serve them no purpose. For all these reasons, I credit the tes-
timony of Harrison and Johnson over that of DeGennaro.
Having made this difficult credibility finding, the next step
is relatively easy as the complaint ‘‘tracks’’ the facts very
well. I therefore find, as alleged in paragraphs 9 and 10 of
the complaint, that DeGennaro informed Johnson that he
would process her grievance only if she joined Respondent,
and coerced her to sign a dues-checkoff authorization card on
behalf of Respondent by conditioning the further processing
of her grievance upon her doing so. I also find, as alleged
in paragraphs 11 and 13 of the complaint, that DeGennaro
told Harrison on September 9, that if she did not join the Re-
spondent she would lose her grievance, and told her on Sep-
tember 10 (alleged incorrectly in the complaint as September
13), that unless she joined the Respondent her grievance
would be delayed. On the basis of the cases cited above I
find that, by this activity, Respondent has violated Section
8(b)(1)(A) of the Act.
The only remaining allegation is paragraph 12, which al-
leges that DeGennaro attempted to coerce Harrison into sign-
ing a dues-checkoff authorization by repeatedly presenting
her with the form and demanding that she sign it, in viola-
tion of Section 8(b)(1)(A) of the Act. Harrison’s credited tes-
timony establishes that on September 9, about an hour after
DeGennaro told her that if she did not join the Respondent
she would lose her arbitration (or grievance), he approached
her at work and gave her a dues-authorization checkoff form
and told her to sign it. When she said that she wanted to
read it, he said that there was no need to read it, she should
just sign it. When she repeated that she wanted to read it,
he left. On about four more occasions that day DeGennaro
asked her for the signed checkoff authorization form and she
said that she had not yet had an opportunity to read it and
he left. It is alleged that by repeatedly presenting her with
the form and asking her whether she had signed the form,
Respondent has violated Section 8(b)(1)(A) of the Act. As
there is no evidence that DeGennaro threatened Harrison dur-
ing any of these repeated visits, I find that this does not con-
stitute a violation of the Act. Being a pest is not a violation
of Section 8(b)(1)(A) of the Act, and I recommend that this
allegation be dismissed.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Postal Service by
virtue of the Postal Reorganization Act, 39 U.S.C. § 1209(a).
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(1)(A) of the Act by:
(a) Threatening employees that their grievances would be
processed only if they joined Respondent and executed a
dues-authorization checkoff form.
(b) Threatening employees that in order to win their griev-
ance they had to join Respondent.
(c) Threatening employees that their grievances would be
delayed unless they joined Respondent.
3. Respondent did not violate the Act as further alleged in
the consolidated complaint.
REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act. In this regard, I shall rec-
ommend that Respondent be ordered to rescind Johnson’s
membership in Respondent and to reimburse her for all dues
deducted from her pay, with interest, within 30 days of the
final Order herein.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
603AMERICAN POSTAL WORKERS (POSTAL SERVICE)
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, American Postal Workers’ Union,
Queens Area Local, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening employees of the Postal Service that their
grievances would be processed only if they joined Respond-
ent and executed a dues-checkoff authorization form.
(b) Threatening employees of the Postal Service that in
order to win their grievance they had to join Respondent.
(c) Threatening employees of the Postal Service that their
grievances would be delayed unless they joined Respondent.
(d) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse Johnson for all dues that have been de-
ducted from her pay since she executed the dues-authoriza-
tion checkoff in or about September 1990.
(b) Rescind and revoke the membership of Johnson and in-
form her in writing that this has been done.
(c) Post at its offices, meeting places and facilities, and,
if the Postal Service is agreeable, at the JFK facility involved
herein, copies of the attached notice marked ‘‘Appendix.’’7
Copies of the notice, on forms provided by the Regional Di-
rector for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the allegation contained
in paragraph 12 of the consolidated complaint be dismissed.