American Postal Workers Union, Afl-Cio (United States Postal Service)

National Labor Relations Board - Board Decisions

Apr 24, 1987

283 N.L.R.B. 722 (N.L.R.B. 1987)

722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pittsburgh Metro Area Postal Workers Union a/w
American Postal Workers Union , AFL-CIO
(United-States Postal Service) and Vicki Austin.
Case 6-CB-6862(P) '
24 April 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 23-September 1986 Administrative Law
Judge Robert T. Wallace issued the attached deci-
sion . The General Counsel filed exceptions and a
supporting brief. The Respondent filed exceptions,
a supporting brief, and a brief in reply to the Gen-
eral Counsel's exceptions.'
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Pittsburgh Metro Area Postal Workers
Union a/w American Postal Workers Union,
AFL-CIO, Pittsburgh, Pennsylvania, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
' On 2 January 1987 the Respondent filed a motion to dismiss the Gen-
eral Counsel's exceptions on the basis of untimeliness and mootness. On
20 January 1987 the Board granted the Respondent 's motion to withdraw
that portion of its motion to dismiss that relates to untimeliness . The Gen-
eral Counsel filed an opposition to the Respondent's motion on 27 Janu-
ary 1987 The Board, having duly considered the matter , denies the Re-
spondent's motion to dismiss the General Counsel's exceptions
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In adopting the judge's finding that the Respondent did not violate
Sec. 8(bXl)(A) and (2) of the Act by refusing to endorse personal con-
venience requests submitted by employee Austin , we necessarily also find
that there is no violation with respect to the Respondent's refusal to en-
dorse similar requests submitted by employees Taylor and Wurm.
We note that the judge twice inadvertently referred to Wurm as
Warren and incorrectly cited Steelworkers Local 1397 (U.S. Steel Corp),
240 NLRB 848 (1979), as United Steelworkers of Amenc4 Local 397
2. Substitute the-'attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To 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 ordered'us to post and abide by this notice.
WE WILL NOT attempt to punish anyone for not
conforming with the Union's policy on noncooper-
ation with USPS-sponsored drives for contribution
to causes such as Combined Federal Campaign, the
Blood Drive, and the Savings Bond Drive, and for
filing charges against the Union with this Board.
WE WILL NOT in any like or related manner re-
strain or .coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
PITTSBURGH METRO AREA POSTAL
WORKERS. ' UNION A/W AMERICAN
POSTAL WORKERS UNION, AFL-CIO
Thomas R. Davies, Esq., for the General Counsel.
Anton G. Ha.#ar, Esq. (O'Connell Schwartz & Anderson),
of Washington, D.C., for the Respondent.
DECISION
ROBERT T. WALLACE, Administrative Law Judge. On
a charge filed by Vicky Austin, an individual, on 19 July
1985, a complaint was issued on 30 August 1985. Hearing
was held on 14 January 1986.
The complaint,' as amended both prior to and at the
hearing, alleges that the Pittsburgh Metro Area Postal
Workers Union a/w American Postal Workers Union,
AFL-CIO (an admitted labor organization within the
meaning of Sec. 2(5) of the National Labor Relations
Act) violated Section 8(b)(1)(A) and (b)(2) of the Act by
failing fairly to represent and attempting to cause the
United States Postal Service (USPS) unlawfully to dis-
criminate against Austin and two other employees (Tina
Taylor and Chuck Warren) at the Bulk Mail Center
(BMC) in Warrendale, PA.
Based on the entire record, including by observation
of the witnesses and after due consideration of briefs
filed by the General Counsel and the Union, I make the
following findings, conclusions, and recommended order.
Jurisdiction is established by Section 1209 of the Postal
Reorganization Act, 39 USC 101 et seq. (1970).
I This proceeding had been consolidated for hearing with a complaint
against the United States Postal Service in Case 6-CA-18524 (P). In the
latter case, I granted the above-named Union's request to withdraw its
charges, and the complaint therein was severed and subsequently dis-
missed.
283 NLRB No. 111
AMERICAN POSTAL WORKERS (POSTAL SERVICE) '723
For many years prior to April 1985,2 the Union and
USPS jointly sponsored a number of charitable and com-
munity-oriented activities at the BMC including solicita-
tion of contributions for the Blood Bank, Savings Bond
Drive, and for the Federal Government's counterpart of
the United Way which is called the Combined Federal
Campaign (CFC). As to the latter, USPS typically al-
lowed training of solicitors and solicitation to occur on
BMC premises during working hours. For its part the
Union, among other things, assisted in distributing pro-
motional literature and pledge cards, nominated volun-
teer rank and file employees to serve as solicitors, and
endorsed their written requests for temporary changes in
work schedules to permit attendance at training sessions
and solicitation at propitous times. Union endorsement
enabled USPS to approve the requests without having to
pay time and one-half for work performed "out of sched-
ule."3 This is so because of an exception4' in the applica-
ble collective-bargaining agreement releasing USPS from
its obligation to pay premium rates when variances are
temporary and granted to accommodate written "person-
al convenience" requests of employees. Such requests,
however, must bear the endorsement of a union repre-
sentative before being presented for supervisory approv-
al.
About 1 April, however, newly appointed manage-
ment at the BMC began to implement a program per-
ceived by the Union as impinging on long-established
local practices and seniority rules in areas such as leave,
overtime, and holiday scheduling;5 and at a general
meeting held on 20 April the membership of the Union
unanimously approved a , resolution opposing the "take-
back" effort and adopting a policy of noncooperation
with management in regard to the Blood Bank, Savings
Bond Drive, CFC, and similar activities . The resolution
also instructed union officers to provide and promote
union-led counterpart programs; and this was done.
The dispute continued through 31 October. During
that period an unprecedented number of seniority based
grievances (over 2000) were filed. Management sharply
limited the amount of on-duty time which stewards
could spend investigating and processing grievances. The
approval ratio of union endorsed employee personal con-
venience requests for changes in schedules to permit at-
tendance at events such as family reunions , sporting
meets, picnics, and union meetings went from about 9
out of 10 to about 1 out of 10.
On 6 June, Austin-a clerk and union member with
relatively little (6 years) seniority-presented two per-
sonal convenience requests to Joseph Miller, the Union's
chief grievance officer at the BMC. In one she sought
Saturday off in lieu of Wednesday during workweek
ending on 5 July in order to serve as a coordinator of
the management sponsored Blood Drive. In the other
she asked for the same change but during the following
week so that she could attend a meeting of safety cap-
tains.6 She avers that her goal was to aid worthwhile
programs and at the same time also obtain a day off on
weekends.
Both requests were promptly endorsed by Miller and
approved by management. He states that requests to
attend safety meetings were and continue to be routinely
endorsed by the Union because cooperation in matters of
plant safety benefits labor as well as management and is
provided for in the collective-bargaining agreement.?
Concerning the request to aid in the Blood Drive he ex-
plains that he signed because at the time he was unclear
as to whether the Union's policy of noncooperation ap-
plied to endorsement of schedule changes sought for that
purpose.
On 10 July Austin presented two more requests to
Miller. Together the requests, if endorsed by the Union
and subsequently approved by management, would have
given her weekends off in place of her normal layoff
days (Tuesday and Wednesday) during a 4-week period
extending from 9 August through 6 September. Her pur-
pose, as stated on the request form, was to receive train-
ing and' to serve as a canvasser for the management-
sponsored CFC.
This time Miller sought instructions from the president
of the Union before taking any action on the requests.
The latter told him that the policy did indeed apply to
requests of the type submitted by Austin. Miller so ad-
vised Austin and declined to endorse her requests. His
failure to do so constitutes the violation of a duty of fair
representation alleged in the complaint.
I find no violation.
In exercising its right under the bargaining agreement
not to waive (by endorsement) premium pay for out-of-
schedule work that bargaining unit members wish to per-
form for "personal convenience," the Union's duty of
fair representation requires that it not act arbitrarily, or
in a discriminatory manner, or with bad faith.8
Austin's request to participate in the management-
sponsored CFC ran counter to the Union's policy of
noncooperation in drives, of that type. That policy,
unlike the situation in a case involving postal workers in
St. Louis, Missouri,9 was not an ad hoc creation of a
2 Unless otherwise indicated all dates hereinafter ctted are in 1985.
s Each permanent position at the ' BMC consists of a job description
together with a schedule of working times and days off (layoff days) ap-
plicable thereto. Positions are awarded on the basis of bids with seniority
being the determinative factor. Temporary details to same-level jobs also
are awarded on the basis of seniority. Positions entailing weekends off are
preferred and so are held by employees with the most seniority. -
4 The exception derives from an arbitrator's interpretation (the so-
called Gamser Award, issued in 1975-G.C. Exh. 14) now reflected in sec.
233.23 of a time and attendance manual published by USPS (G.C. Exh 3)
which is made part of the agreement (G.C. Exh. 2) by sec. 19 thereof.
5 The complaint does-not allege, nor, does the Union contend here, that
management breached its duty to bargain in making the changes
6 Safety captains ' meetings are held only on weekdays; and as to the
Blood Drive and other campaigns for voluntary contributions, Austin ex-
plains that because of differing mailflow and manning situations weekends
vs. weekdays, the latter are more favorable for solicitations. In her
words: "It made the job easier and took less man-hours [on weekdays]."
7 On 1l July Austin sought and received Miller's endorsement on an-
other request to attend a safety meeting by substituting Saturday for
Wednesday as her day off, this time during the workweek ending on 9
August.
8 Vaca v. Sipes, 386 U.S. 171, 190 (1967); Miranda Fuel Co., 140 NLRB
181 (1962).
9 Postal Service, 240 NLRB 1198 (1979), enfd in relevant part 618 F.2d
1249 (8th Cir. 1980).
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
single union official. Rather, the policy was duly and
unanimously adopted at a general meeting of union mem-
bers-,-and despite unfortunate potential adverse affect on
worthwhile charitable endeavors, the policy itself, as
well as its application to -the Union's, contractual right to
waive or not to waive, premium pay,10 have a legitimate
union-related object, i.e., to- leverage management into
abating or rescinding actions perceived as unfair to labor.
Accordingly, I find no arbitrary action or abuse of dis-
cretion. Further, there is no evidence that in applying
the policy the Union discriminated against Austin" or
otherwise acted in bad faith.12
As noted, Austin filed her charge with the Board on-
19 July. On 16 August she filled, in for the general clerk
in the superintendent's office. Temporary assignments to
that job normally went to the; most senior-qualified clerk
on a list of volunteers..But in this instance management
did not-follow that procedure by first offering the assign-
ment to all employees on the list having greater seniority
than Austin. One of those (Ethel Daily) asked Miller to
investigate and. grieve the matter on her behalf; and he
did so. Arlyn Parrish, another clerk with more seniority
than Austin, claims that Miller approached her on 16
August and, asked, whether she had been offered the job.
After she responded: "Yes," he urged her to bump
Austin because "we don't want her in there." She de-
clined. Austin continued to work in the superintendent's
office throughout the 'day. The grievance was settled in
Daily's favor when, in a letter to Miller dated .10 Octo-
ber (R. Exh. 5), USPS acknowledged its mistake and
agreed to adhere to the practice of choosing temporary
clerks from the list on the basis of seniority.
Although I credit Parrish's testimony and find that
Miller harbored a personal reason for not wanting Austin
"in there" '0.e., he resented her dissident attitude and the
fact that she had filed"a charge, against the Union), I see
no reason to conclude that bias played any significant
role in his initiation and conduct of the investigation and
subsequent filing of the grievance. Miller was acting in
his capacity as steward on request of a clerk (Daily)
having more seniority than Austin-and he had reason to
believe that a grievable issue arose from failure to offer
her the -assignment to the -superintendent's office. How-
ever, he did not confine his efforts solely to inves tigating
the grievance. He went further and sought to persuade
Parrish'to change her mind and exercise her seniority to
oust Austin from the 'temporary office job, and--I find
that in doing so he attempted unlawfully to retaliate
against Austin for cooperating with management con-
10 The General Counsel contends that the Union erred in not announc-
ing that the policy of noncooperation extended to endorsements of per-
sonal convenience requests. I find no fault. The policy clearly contem-
plated application to 'actions which involve exercise of discretionary
power by the Union.
11 Indeed, the Union is shown to have declined to endorse subsequent-
ly submitted requests for schedule changes to permit Taylor `to obtain
CFC training, and Warren to participate in CPR classes held under man-'
agement auspices.
12 Compare American Posial Workers, 250 NLRB 761 (1980), in which
endorsement of a requested schedule change to permit an employee to
attend Naval Reserve meetings was" found to have been unlawfully condi-
tioned on his joining the Union
trary to union policy 13 and for filing charges under the
Act.14
CONCLUSIONS OF LAW
1. Respondent Union violated Section 8(b)(1)(A) of the
Act by attempting to punish a member of the bargaining
unit for not conforming with union policy of noncooper-
ation with USPS-sponsored campaigns for voluntary
contributions and for filing charges against the -Union
with the Board. -
2. It is not shown to have violated the Act in any
other respect.
THE REMEDY
Austin incurred no financial detriment as a result of
the unlawful conduct of the Union found above. Accord-
ingly, an appropriate remedy here is a cease-and-desist
order as well as a requirement for notice posting. There
is no need for a special "visitatorial" clause for discovery
purposes as requested in the complaint.
On these findings of fact and conclusions ,of law and
on the entire record, I issue the following recommend-
edls
ORDER
The Respondent, Pittsburgh Metro Area Postal Work-
ers Union-,a/w American Postal Workers Union, AFL-
CIO, Pittsburgh, Pennsylvania, its officers, agents, and
representatives, shall
1. Cease and' desist from
(a) Attempting to retaliate against employees for - not
conforming with union policy of noncooperation ' in
USPS-sponsored -drives for contributions to causes such
as` 'the Combined Federal Campaign, the Blood Drive,
and, the Savings' Bond Drive, and for 'filing charges
against the Union under the Act. - -
(b) In any 'like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the National Labor Re-
lations Act.- ` , -
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its headquarters and at the USPS Pittsburgh
Bulk Mail Center in Warrendale, Pennsylvania, copies of
the attached notice marked- "Appendix."16 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent's author-
ized representative, shall' be posted by the Respondent
12 See Steelworkers Local 397, 240 NLRB 848, 849 (1979); Operating
Engineers Local 139 (AGC of Wisconsin), 273 NLRB 992 (1984).
14 See Oil Workers Local 2-947 (Cotter Corp.), 270 NLRB 1311 (1984);
Teamsters Local 79' (Carl Subler Trucking), 269NLRB 1132 (1984).
15 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , -the findings , conclusions, and recommended
Order shall , as provided -in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
11 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 Nation-
al 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."
AMERICAN POSTAL , WORKERS (POSTAL SERVICE)
immediately upon receipt and maintained for 60 consecu-
tive clays in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
725
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.