AMERICAN POSTAL WORKERS UNION GREATER CINCINNATI OHIO AREA LOCAL 164 (United States Postal Service)

National Labor Relations Board - Administrative Judge Opinions

Sep 23, 2020

09-CB-245613 (N.L.R.B. Sep. 23, 2020)

JD–36–20
Cincinnati, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMERICAN POSTAL WORKERS UNION,
GREATER CINCINNATI OHIO AREA
LOCAL 164, AFL-CIO (APWU)
(United Postal Service)
and Case 09-CB-245613
JOCELYN HARGRAVE,
An Individual
Kevin Luken, Esq., for the General Counsel.
Gary M. Eby, Esq., (Manley Burke, LPA, Cincinnati, Ohio)
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried by Zoom video
technology on August 13, 2020. Both the General Counsel and the Respondent’s counsel
participated from Cincinnati, Ohio. Jocelyn Hargrave, who filed the charge giving rise to this
case on July 29, 2019, participated from Dayton, Ohio. The General Counsel issued a complaint
and notice of hearing on January 22, 2020.
The General Counsel alleges that Respondent Union violated its duty of fair
representation pursuant to Section 8(b)(1)(A) of the Act by failing to file and process a grievance
regarding Charging Party Jocelyn Hargrave’s removal from light duty and from work on March
29, 2019.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The employer, the United States Postal Service, has its headquarters in Washington, D.C. It
provides postal services throughout the United States, including from its post office on Dalton
Street in downtown Cincinnati, Ohio. The Board has jurisdiction over the Employer and
JD–36–20
2
Respondent Union pursuant to Section 1209 of the Postal Reorganization Act. The
Respondent, Local 164 of the American Postal Workers Union, is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES5
The Postal Service hired the Charging Party, Jocelyn Hargrave as a Christmas casual
employee in December 2017 at its facility in Sharonville which is located in the northern suburbs
of Cincinnati, Ohio. She was hired as a part-time employee in June 2018 at a facility in
Springdale which is also on the north side of metropolitan Cincinnati. The next month the Postal 10
Service transferred Hargrave involuntarily to the main Cincinnati post office on Dalton Street in
downtown. Hargrave lives in Dayton, 50 miles from the Dalton Street facility. Her title was
mail processing clerk. She worked on the third shift, 7:30 p.m. to 4:00 a.m. Hargrave became a
member of the Respondent Union.
15
On September 16, 2018, while running the BBS machine, Hargrave’s ankles began to
swell. On September 24, her primary care physician gave Hargrave work restrictions. She filed
a workers compensation claim on October 22, 2018, which has never been granted by the Postal
Service and is currently on appeal.
20
On November 11, 2018, the Postal Service transferred Hargrave to a light duty position.
The job entailed sorting mail by hand which was consistent with her physician’s restrictions.
This job was also on third shift. In the Postal Service, light duty may be available for injuries not
sustained on the job. Employees who sustain work-related injuries may receive limited duty. On
January 15, 2019, Hargrave became a full-time career Postal employee.25
On March 29, 2019, USPS supervisors removed Hargrave from light duty and ordered
her to clock out. Chief Union Steward Arthur Saturday, who was with them, testified that the
supervisors told Hargrave that she had to apply to the plant manager for further light duty. He
told Hargrave to bring in the paperwork necessary to be restored to a light duty position and that 30
he would submit that to the plant manager with her request. According to Hargrave, Saturday
told her that if the USPS did not put her back on light duty that he would file a grievance on her
behalf. Prior to March 29, 2019, Saturday had no interaction with Hargrave.
Hargrave testified that on April 1, she came to the Dalton Street facility and gave steward 35
Saturday the paperwork documenting the medical reasons for extending her light duty. At that
time, according to Hargrave, Saturday told her once again that if the USPS did not put her back
on light duty that he would file a grievance on her behalf. Saturday denies that Hargrave ever
asked him to file a grievance over her removal from light duty, or that he told her he would file a
grievance if USPS did not put her back to work.1 In fact, he denies meeting with Hargrave on 40
April 1, Tr. 131-32.2
1 Hargrave testified that Saturday made this statement twice, on March 29 and again April 1, Tr. 29,
30.
2 Respondent points out that Hargrave did not mention giving Saturday any such paperwork in the
affidavit she gave to the Board agent.
JD–36–20
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On April 20, 2019, the Union filed a grievance on Hargrave’s behalf. This grievance
alleged that she was not compensated for annual leave between April 5 and 8, 2019.
Saturday and Hargrave spoke on the telephone several times between March 29 and June
3, 2019. According to Saturday, he told Hargrave she could return to work, but not on light duty. 5
He testified that her response was that she could not do that due to her pending workers
compensation claim. According to Saturday, Hargrave never filed another request for light duty
with the plant manager..
Hargrave asked the Postal Service for a reasonable accommodation on April 15, 2019. 10
She appeared before a District Reasonable Accommodation Committee (DRAC) on April 23,
2019. This is a management committee in which the Union plays no role. Hargrave did not ask
for union representation before this Committee and nobody from the Union attended the April 23
meeting. However, after getting no response from DRAC, Hargrave complained to the Union,
which filed a grievance on July 17, 2019 to get another appearance for Hargrave before the 15
Committee. .
Hargrave’s home was damaged by a tornado in the spring of 2019. On May 29, 2019 she
went to the union office and met with then local union president Mike Smith to seek relief from a
union fund set up for that purpose. According to Hargrave she asked Smith about a grievance 20
concerning her removal from light duty. Smith testified that he does not recall Hargrave
discussing this with him, Tr. 174.
Hargrave testified that Smith told her that steward Saturday was taking care of that
grievance and that Smith called Saturday in her presence. Hargrave testified further that she 25
heard Smith ask Saturday to check on the status of her grievance. Smith may have discussed
other grievances the Union filed on Hargrave’s behalf with Saturday. Art Saturday sent
Hargrave a text message on June 3, asking her for her mailing address. He needed it to send her
the paperwork needed to apply for tornado relief.
30
On June 23, 2019, Hargrave attended a prediscipline meeting at the Dalton Post Office
with Lisa McKlinsky, who was her supervisor from her light duty job and a union steward,
Richard Leigh. Hargrave testified that she asked Leigh to see the paperwork for her grievance
about being removed from light duty. Leigh could not find any. Hargrave gave Leigh 2
documents, G.C. Exh. 2: one asking that her annual leave be restored; the other for not being 35
paid for working on March 29, 2019. Neither document challenged USPS’ decision to remove
Hargrave from light duty.
On July 26, 2019 Hargrave spoke to steward Saturday, who told her he did not have any
paperwork regarding the Reasonable Accommodation Committee. On July 29, she filed the 40
initial unfair labor practice charge in this case.
Hargrave testified that on July 31, Saturday asked her to send him her paperwork. On
August 30, Saturday asked Hargrave to provide him with documentation for everything that had
happened since March 29. Hargraves’ last communication with Saturday occurred on September 45
6, when he told her that the Postal Service said she had not done anything to try to return to work
and that he needed her updated medical restrictions.
JD–36–20
4
During Hargrave’s employment at the Postal Service, the Union has filed 3 grievances on
her behalf: one for emergency placement, a second for a 7-day suspension and a third for a 14-
day suspension. Jocelyn Hargrave is not a union dissident. She has never run for union office or
been active in intra-union politics. There is no evidence of animus towards her on the part of 5
Arthur Saturday or any other union official.
This case largely presents a one on one situation with the only participants to the events
herein providing no clear basis for choosing one version over the other. However, given the
lack of any evidence as to why the Union or Art Saturday would ignore Hargrave’s requests 10
and/or lie to her about pursuing a grievance, I credit Saturday. The absence of evidence of
animus towards the unit member is not necessarily dispositive in a duty of fair representation
case, Operating Engineers Local 513, 308 NLRB 1300 (1992). However, it is relevant in
assessing the credibility of witnesses and in determining whether the Union violated its duty
under the Act. Therefore, I dismiss the complaint. Moreover, I would dismiss the complaint15
even if I were to credit Jocelyn Hargrave’s testimony.
The applicable legal standard
Section 8(b)(1)(A) of the Act provides that it shall be an unfair labor practice for a labor 20
organization “to restrain or coerce . . . employees in the exercise of the rights guaranteed in
Section 7 of the Act.” Section 8(b)(1)(A) creates a duty, when a union is acting as an exclusive
bargaining representative, to fairly represent all employees in the bargaining unit and to refrain
from any action against an employee based upon considerations or classifications that are
arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967); see 25
also Operating Engineers Local 181 (Maxim Crane Works), 365 NLRB No. 6 (2017).
The Supreme Court has long held that a union is afforded wide latitude in carrying out its
representational duties. See United Steelworkers of America, AFL-CIO-CLC v. Rawson, 495 U.S.
362, 374 (1990), citing Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953); Vaca v. Sipes, 30
above at 191; see also Operating Engineers Local 181, above. As the Court stated in Airline
Pilots Assn. v. O'Neill, 499 U.S. 65, 78 (1991), regarding a union's negotiated strike settlement,
an examination of a union's performance “must be highly deferential, recognizing the wide
latitude that negotiators need for the effective performance of their bargaining responsibilities.”
To be found arbitrary, the union's behavior must have been “so far outside a “wide range of 35
reasonableness' that it is wholly ‘irrational’ or ‘arbitrary.”’ Airline Pilots Assn., above at 66,
citing Ford Motor Co., above at 338;
Thus, a union enjoys a wide range of discretion in determining whether and how to
handle employee grievances, provided the exercise of such discretion is not based on 40
discriminatory, arbitrary, or bad-faith considerations. Office Employees Local 2, 268 NLRB
1353, 1355 (1984), affd. sub nom. Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985),
citing Teamsters Local 692 (Great Western), 209 NLRB 446 (1974); see also Turner v. Air
Transport Dispatchers' Assn., 468 F.2d 297, 299 (5th Cir. 1972).
45
Something more than mere negligence, poor judgment or ineptitude in grievance
handling is needed to establish a breach of a union’s duty of fair representation, American
JD–36–20
5
Transit Union , Local 1498, 360 NLRB 777 (2014). In this case, even if I were to credit Jocelyn
Hargrave, the record would establish nothing more than negligence, poor judgment or ineptitude
on the part of the Union or Steward Arthur Saturday.
I reach this conclusion because there is no evidence of animus towards Hargrave on the 5
part of Arthur Saturday or any other union official and the fact that the Union has filed several
grievances on Hargrave’s behalf.
At worst, the Union and Saturday are with respect to the light duty grievance guilty of
“dropping the ball.” Thus, I find no basis for finding that the Union violated 8(b)(1)(A) even if I 10
viewed the facts in a manner most favorably to Hargrave. Therefore, I dismiss the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
15
ORDER
The complaint is dismissed.
Dated, Washington, D.C.
September 23, 202020
____________________________
Arthur J. Amchan
Administrative Law Judge25
3 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 purposes.
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