American Postal Workers Union Local 4193

National Labor Relations Board - Board Decisions

Nov 17, 1976

226 N.L.R.B. 1000 (N.L.R.B. 1976)

1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Postal Workers Union Local 4193, AFL-
CIO (United States Postal Service) and William
Scott. Case 12-CB-1640(P)
November 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On June 23, 1976, Administrative Law Judge John
F. Corbley issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief. The Respondent filed a
brief in answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on March 25, 1976, at Naples, Flor-
ida, pursuant to a charge filed by William Scott, an indi-
vidual (hereinafter referred to as Scott or the Charging Par-
ty) on October 28, 1975, a copy of which was served on
Respondent by registered mail on or about the same date
and on a complaint and notice of hearing issued by the
Regional Director for Region 12 of the National Labor
Relations Board on January 7, 1976, which was also there-
after duly served on Respondent. The complaint alleges
that Respondent violated Section 8(b)(1)(A) of the Act by
not fulfilling its duty of fair representation to Scott in that
Respondent failed or refused on some four occasions in
September and October 1975 to process an overtime griev-
ance by him. In its answer to the complaint, also duly filed,
the Respondent denied the commission of any unfair labor
practices.
For reasons which will appear, I find and conclude that
R :,spondent has not violated the Act, as alleged in the com-
plaint, and I shall, accordingly, recommend that the com-
plaint be dismissed in its entirety.
At the hearing the General Counsel and Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to in-
troduce evidence, and to file briefs. The General Counsel
and counsel for Respondent presented oral argument at
the conclusion of the hearing. Briefs have subsequently
been received from the General Counsel and Respondent
and have been considered.
Upon the entire record in this case, including the briefs,
and from my observation of the witnesses, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF THE UNITED STATES POSTAL SERVICE
The United States Postal Service (herein called the Em-
ployer) is an independent establishment of the Executive
Branch of the Government of the United States and oper-
ates various facilities throughout the United States in the
performance of its basic function to provide postal services
to this Nation.
In furtherance of its basic function the Employer, at all
times material herein, has been and is operating a facility
for the processing of mail and the furnishing of postal ser-
vices at 1200 Goodlette Road in Naples, Florida (herein
called the Naples facility).
The complaint alleges, the answer admits, and I find that
the Employer is now, and has been at all times material
herein, subject to the jurisdiction of the National Labor
Relations Board by virtue of the provisions of the Postal
Reorganization Act.
II. RESPONDENT; THE LABOR ORGANIZATION INVOLVED
The Respondent is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Relevant Hierarchy
On or about September 25, 1975, and at all times mate-
nal herein, the following named persons occupied the posi-
tions set forth, and were agents of Respondent, acting on
its behalf within the meaning of Section 2(13) of the Act:
Joseph Chipullo-shop steward; John Rimes-president.
B. Background
The Employer and Respondent's International Union
are parties to a nationwide collective-bargaining contract
effective July 21, 1975, to July 20, 1978, covering postal
clerks. Respondent is the local union which represents the
postal clerks at the Employer's Naples facility. Respondent
has processed grievances on behalf of these clerks both
before and after the events in question here.
226 NLRB No. 160
AMERICAN POSTAL WORKERS UNION LOCAL 4193
The Charging Party, Scott, is a distribution clerk at the
Naples facility where he has been employed since January
1975. He is a member of Respondent and indeed was a
Respondent steward for the first 5 months of 1975. His
wife is also employed at this facility and is a member of
Respondent.
The Scotts have a reputation for being litigious. Rimes
testified that the number of grievances filed by Scott was
much greater than the number filed by any other employ-
ee. Both Scotts filed grievances in 1975 prior to the one
filed in September, which gave rise to this proceeding, and
Scott has filed at least one since. The only grievance of the
Scotts which Respondent has been accused of refusing to
process is Scott's September 1975 gnevance.
This litigious tendency of the Scotts has caused resent-
ment among Respondent's officialdom-particularly
Rimes) Scott's September grievance also angered Chipul-
lo, Respondent's steward at the time-so much so that Chi-
pullo resigned his post. Mischung, Respondent's chief
steward until June 1975, stepped down from his stew-
ardship at that time in part because of criticism by the
Scotts of the way Mischung was handling grievances.
As with most labor organizations, Respondent's stew-
ards are responsible for handling grievances at the early
stages of the grievance procedure. However, any officers of
Respondent may also carry out this function. To ease the
burden on its stewards and to screen out nonmeritorious
grievances, Respondent, at its July 1975 membership meet-
ing, also established an informal grievance advisory com-
mittee . This committee consisted of Respondent's presi-
dent, Rimes, as well as some other present and former
officers.' The committee did not meet from July until the
time Scott's September grievance herein developed.
The grievance procedure is set forth in the contract be-
tween Respondent's International and the Employer The
procedure is elaborate, involves some four major steps
(with substeps), and may be followed by arbitration. The
burden of the complaint here, however, is that Respondent
did not fulfill its duty of fair representation to Scott by
assisting him at step I and step 2 (substep A).
At step 1 the Employer is required to discuss an
employee's grievance within 14 days of the time he or the
Union has learned of, or could reasonably be excepted to
have learned of, the matter to be aggrieved. The employee
"may" be accompanied by his steward at this step. The
supervisor must render a decision within 5 days thereafter.
The Union is entitled to appeal an adverse decision by the
supervisor within the 10 days following the supervisor's de-
cision. The agreement is silent in respect to the right of an
employee to appeal.
At step 2 (substep A) the employee must be represented
by a steward or union representative. In view of the man-
ner in which the procedure is written, as noted above, to
specify only that the Union has a right of appeal, I con-
strue this to mean that the employee must be represented
1 See C.P Exh . 1-Rimes' letter to the Regional Office explaining Re-
spondent's position in this case Also see Rimes' testimony on cross-exami-
nation
2 Mischung testified that the committee was to consist of himself, former
President Harris, and Rimes Mischung did not, however , deny that other
officers could serve , as credibly testified to by Rimes and Usher , Respon-
dent 's secretary -treasurer
1001
by a steward or union representative when an appeal is
made by the Union itself. The Employer's installation head
must meet with the steward or representative within 7 days
of the appeal and render a decision within 10 days after the
matter has been appealed.
The Employer maintains an "Overtime Desired" list for
each calendar quarter. Employees voluntarily place their
names on this list and may be selected for overtime from it
on the basis of their order of seniority as permanent regular
employees of the Employer
To understand how overtime opportunities come about
for employees whose names are on this list, it is first neces-
sary to appreciate what work is available to be performed
on an overtime basis.
There are at least two categories of such work.
One such category involves the handling of 3579's which
are change-of-address forms for customers of publishers.
At the time in question here, in late September 1975, there
was such work available.3
Another category of overtime work is work on unsorted
mail. Incoming mail begins to arrive at the Naples facility
at 3:30 or 4 a.m. There is, of course, no way to predict what
the volume of it will be.
In handling this incoming mail, it is sometimes ascer-
tained by 7 or 8 a.m. that more employees are needed than
are already at work on the first shift which runs from 4
a.m. to 12:30 p.m. In this situation employees scheduled to
begin work on the second shift on that day may be called
to come into work 2 hours early at 9 a.m. The employees
selected for such calls are selected from the "Overtime De-
sired" list in order of their seniority. When the list is ex-
hausted, unlisted employees may be called.
On the other hand, when it is not ascertained until after
9 a.m. that additional help is needed, it is too late to call
employees scheduled for the next shift to come in early.
There have been occasions where the decision that more
help is necessary is not made until as late as 11:30 a.m.
When a late decision is made after 9 a.m. that more help
is needed to handle incoming mail, the Employer has asked
qualified employees already on duty on the first shift to
work overtime-taking, if necessary, employees whose
names are not on the "Overtime Desired" list.
In yet other variations of overtime assignments, the Em-
ployer has ascertained, the night before, that second shift
employees then working will be needed to help the first
shift the next morning. In these instances the second shift
employee will be asked before he leaves his shift at 7:30
p.m. to come in 2 hours early the next morning. Second
shift employees may also be asked to work overtime after
7:30 p.m. in the evemng.
The foregoing flexible arrangements based on the exi-
gencies of business at a given time are recognized in the
collective-bargaining agreement between the Employer
and Respondent's International. Thus, article VIII, section
5D, of that agreement states:
If the voluntary "Overtime Desired" list does not pro-
vide sufficient qualified people, qualified full time reg-
7 Scott so mentioned to his supervisor, McClure, on September 23, and
Fager, manager of mail processing at the Naples facility, testified that such
work regularly goes on
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ular employees not on the list may. be required to work
overtime on a rotating basis with the first opportunity
assigned to the junior employee.'
C. Sequence of Events
The Charging Party's name was on the "Overtime De-
sired" list at the Naples facility from the July through Sep-
tember quarter of 1975. The name of the union steward,
Chipullo, was not on that list at least as of September 24,
1975, although, as will appear, he worked overtime on that
date.
In September 1975, the Charging Party was employed on
the 11 a.m.-to-7:30 p.m. shift at the Naples facility. His
supervisor was Roy McClure.
On the evening of September 23, Scott asked McClure if
he could work overtime the following day, i.e., come in 2
hours early at 9 a.m on September 24. McClure told Scott
just to come in at the regular time.
Scott reported for work at 11 a.m on September 24 and
worked 8 hours. That day Scott obseyrved Chipullo, then
Respondent's steward, working 2 hours overtime
That evening Scott again asked McClure if he could
work overtime on the following day. McClure refused.
Scott then told McClure that there were people working
overtime who were not on the "Overtime Desired" list,
whereas he, Scott, was on that list. Scott added that this
gave him grounds for a grievance.
McClure again demurred, stating that he, McClure,
could not help it but there was no mail there and conse-
quently no work for Scott to do on an overtime basis. Mc-
Clure stated that he had not been told to ask Scott to re-
port early hence could not direct Scott to work overtime on
the following day
Scott pressed the argument, pointing out to McClure
that there were plenty of 3579's to be cut which was work
in Scott's job description. Scott went on to claim that peo-
ple were working overtime on that job, but Scott was not
offered any overtime.
McClure insisted that he had no instructions to have
Scott report early the next day so he could not direct him
so to do.
On the way to work on September 25, Scott stopped at a
local restaurant for breakfast and saw Chipullo eating
lunch. Scott reminded Chipullo that the latter had worked
2 hours overtime on the previous day but that Scott had
not. Scott told Chipullo that he felt like he should file a
grievance for 2 hours' pay because he was on the overtime
desired list and Chipullo was not.
Chipullo became angry when he heard this and asked
Scott if 2 hours' pay meant that much to him. Chipullo also
inquired if Scott expected him to file a grievance against
himself (Chipullo). Scott replied that it was not the pay but
the principle of the thing because, Scott stated, he felt that
he had been passed over on the "Overtime Desired" list
and wanted to put a stop to it. Scott added that any griev-
ance would not be a personal attack on Chipullo.
" GC Exh 2
Chipullo stated that he would not file a grievance against
himself.5
Scott reported for work on September 25 at 11 a.m. and
worked for 8 hours. Chipullo worked 2 hours overtime that
day as he had the day before.
On September 26 Scott again ran into Chipullo at the
same local restaurant. Scott told Chipullo that he wanted
to file a grievance and Chipullo refused to handle a griev-
ance against himself. This confrontation was otherwise a
repeat of the one the day before with another addition
being that Chipullo stated that, if Scott pursued the matter,
he would turn it over to Rimes and he would resign .6 In
any event Chipullo did not take up Scott's grievance.
Chipullo then left the restaurant and returned to the Na-
ples facility where he spoke to the morning supervisor,
Mullins. Chipullo asked Mullins if he, Chipullo, could be
placed on the "Overtime Desired" list for the remaining
days of the third quarter. Mullins agreed to take care of
this request
Chipullo also resigned as shop steward on or about the
same day.
Sometime between September 26 and 29 Rimes learned
of Scott's intentions to file a grievance over Chipullo's
overtime.' Rimes, accordingly, spoke to Mullins , the morn-
ing supervisor, and inquired about the matter. Mullins in-
formed Rimes that he had made the decision to call in
Chipullo to work overtime. Mullins continued that he
made his decision too late in the morning to call in anyone
off duty who was on the "Overtime Desired" list. Mullins
had therefore used Chipullo because the latter was already
there on duty.
Rimes then researched the collective-bargaining agree-
ment and was satisfied that the Employer was within its
rights to take the action it took.8
5 The findings as to this incident are based, essentially, on the credible
testimony of Scott in this regard Chipullo's testimony did not dispute these
findings Chipullo testified in substance that all Scott said was that what had
happened would be grounds for a grievance However, based upon
Chipullo's testimony, the general import of Scott's testimony and the logic
of events, which I will analyze in my "Concluding Findings," I hold that
Scott did not actually request Chipullo to file a grievance on this occasion
but instead merely discussed that possibility with him
6 The testimony of Chipullo as compared with that of Scott does not
essentially differ as to what occurred at this meeting except that Chipullo
credibly testified without dispute by Scott that he would turn the matter
over to Rimes if Scott persisted
i In view of Chipullo's resignation at the time, I conclude that Chipullo
told Rimes of the matter when Chipullo resigned from his stewardship The
matter was also aired publicly at the Naples facility on or about September
26 when Chipullo and Mrs Scott had a confrontation over it
8 See art VIII, sec 5D, previously described in this Decision
These findings as to Rimes' investigation of the matter are based on his
credible testimony to this effect My findings as to the dates of his investiga-
tion are based on Rimes' acknowledgment to Scott when Scott and he first
discussed Scott's grievance on September 29, which will appear, that he had
already looked into the matter before the latter date I do not credit Rimes'
testimony that he spoke to Scott for the first time on September 25 and
investigated the matter thereafter because Rimes appeared to be less certain
of dates and the sequence of events than was Scott, whom I have credited in
respect to both these areas Further, as will appear, Rimes ' own version of
his first meeting with Scott on the grievance suggests that Rimes had al-
ready gathered some facts in regard to the grievance Finally, I do not credit
Rimes' testimony that he spoke to Scott on September 25 because , as of that
date, Scott had not yet had his second meeting with Chipullo on Scott's
proposed grievance-at which meeting , as I have found , Chipullo suggested
referring the matter to Rimes
AMERICAN POSTAL WORKERS UNION LOCAL 4193
On September 29, the following Monday, Scott did not
work overtime but Chipullo did.
That same day Scott spoke to Rimes at the Naples facil-
ity about filing a grievance in respect to the overtime mat-
ter .9
Scott told Rimes that the gist of his grievance was that
Chipullo had worked overtime even though not on the
"Overtime Desired" list whereas Scott, who was not of-
fered overtime, was on that list. Rimes informed Scott that
he had already discussed the matter with the supervisor,
that the supervisor said Scott was on the wrong hours, and
that the work was not there for him at the right time. Rimes
went on to state that he agreed with the supervisor's assess-
ment of the situation. Rimes added that the men were
going to have to stop filing grievances against each other.
Scott rejoined that he was concerned with the principle
of the thing and over his feeling that he was being bypassed
on the "Overtime Desired" list. Rimes continued to advise
against the grievance.
Scott then said he would try to get someone else to help
him with his grievance. Scott did, however, ask Rimes to
discuss the matter with the grievance advisory committee
and Rimes agreed to do so i
Within the next day or so, after September 29, Rimes
discussed the proposed grievance over lunch with Harris,
Respondent's former president, and Shirely, its former sec-
retary-treasurer. The discussion dealt with the consider-
ation that Chipullo was on the job when selected to per-
form the overtime work Scott felt he should have been
called in for and with Rimes' aforementioned interpreta-
tion of the contract. All present agreed that the grievance
had no merit."
On October 1, Scott filed his own grievance with his
supervisor, McClure. Specifically, Scott grieved that he was
not scheduled to work overtime or called in early to work
overtime on September 24, 25, and 29 because an employee
not on the overtime list-Joe Chipullo-was used instead
On October 6, 1976, McClure denied Scott's grievance.
In support of his denial of the grievance, McClure wrote in
his "Supervisor's Report of Grievance" the following:
9 Scott understood that Chipullo had already resigned as steward
10 The findings as to this incident are based on the credible and fairly
certain testimony of Scott in this regard I have already observed that Rimes
was not as certain as to dates or the sequence of events Rimes' version of
his first meeting with Scott on the matter of the grievance (i e . this meeting
of September 29) does not essentially dispute that of Scott except that
Rimes was left with the impression that Scott was only seeking advice in
regard to whether the grievance should be filed Rimes admitted that he
discouraged it. Rimes also admitted that he pointed out to Scott. in connec-
tion with the grievance, that Chipullo was already on the job when he was
assigned the overtime This, of course, suggests that Rimes had already
investigated the matter when he discussed it with Scott for the first time
11 Rimes also discussed the grievance separately with Usher.
Respondent's current secretary-treasurer, who took the same position
The findings as to Rimes' actions during this period are based on his
credible testimony to this effect as corroborated by Usher in part
I have not credited Rimes' testimony that he discussed the matter with
Harris, Shirely, and Usher on or about September 26, because, as I have
said previously, Rimes did not appear as certain as to dates and the se-
quence of events as was Scott, whom I have credited Further, it is clear
from Rimes' own testimony that he discussed the grievance with Harris,
Shirely, and Usher (all members of the informal grievance advisory commit-
tee) after Rimes' first meeting with Scott on the grievance , a meeting at
which, as I have found, Rimes promised Scott that he would have that very
discussion
1003
It was explained to Mr. Scott that no early schedule
could be made, because no 3rd class mail was in the
office at the time and that the determination if over-
time was needed could not be made in time to call him
in early. Third class mail does not arrive in the office
until 0750 daily. In order to determine volume re-
ceived mail must be dumped and culled. And this can-
not be done until service standards on FLM and P.P.
are obtained. After the above standards were met and
the third class dumped and culled it was determined
that the overtime desired list did not produce suffi-
cient help to obtain local 3rd class goals and available
qualified clerk was used. It should also be pointed out
that Mr. Chipullo requested that his name be placed
on the overtime desired list on approximately 9-25-75.
In the same supervisor's report, McClure noted that the
position of the Employer was as follows:
No violation has occurred. Overtime list is strictly
followed in this office. Due to service standards it was
necessary to invoke Art. VIII, Sec. 5-D and use an
employee not on the "Overtime Desired" list on 9-24-
75. On the other days in question the same applies but
again Mr. Chipullo had requested his name be added.
Late on the same day on which his grievance was denied
Scott spoke to Rimes. Scott advised Rimes that his griev-
ance was being denied and he asked Rimes to take the
grievance to step 2. Rimes refused saying that "we've" de-
cided that your grievance doesn't have any merit and that
the same "we" would not take it any further. When Scott
asked who the "we" referred to, Rimes said the advisory
committee. Scott then threatened to take the matter to the
NLRB but Rimes did not relent."
On October 9 Scott drew up the appropriate papers for
appeal and again approached Rimes. Scott told Rimes that
he had been instructed by a representative of the NLRB to
ask Rimes for the third time to handle his grievance and
that all he needed from Rimes was a yes or no answer.
Rimes responded that "we've" decided that he, Scott,
did not have a grievance and Rimes refused to process it.
Scott told Rimes that he had the papers ready and that
Rimes need only sign them so they could be put in the mail
to the postmaster. Scott continued that if Rimes refused he
was going to take the matter to the NLRB. Rimes again
refused.13
Respondent, apparently, did not thereafter press Scott's
appeal.
Concluding Findings
In contending that Respondent has violated its duty of
fair representation to Scott, the General Counsel argues
that Scott's grievance was not processed on its own merits;
that Rimes had a great deal of hostility toward Scott; that
the Union treated the grievance perfunctorily and was not
12 These findings are based on the credible testimony of Scott in this
regard as essentially corroborated by Rimes
J These findings are based on the credible testimony of Scott in this
regard as partly corroborated or not disputed by Rimes
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an advocate for Scott; that the Union accepted Mullins'
statement of what had occurred knowing that there would
be a conflict of interest between the Employer and the
grievant; and that there was no full meeting of the griev-
ance committee nor a face-to-face confrontation between
Respondent and management on the subject of the griev-
ance.
While some of these arguments are, in part, factually
correct, I am not satisfied in all the circumstances of the
case that the General Counsel has established that Respon-
dent has violated its duty of fair representation towards
Scott.
But before I consider these factual contentions and their
relationship to Respondent's obligations in respect to
Scott, some understanding of Respondent's representative
responsibilities must first be outlined.
As a general statement it may be said that an exclusive
bargaining representative's duty of fair representation has
not yet been precisely defined but is being developed on a
case-by-case basis.14 This absence of precision is especially
true in respect to the parameters of a union's function in
assisting or representing its members in the filing of griev-
ances. At one end of the spectrum it is clear that a union is
not automatically required to present every grievance ad-
vanced by a unit employee) At the opposite extreme it is
equally clear that a union violates its duty if, in refusing to
handle a grievance, it does so in bad faith or out of hostility
or even, simply, arbitrarily or capriciously. 16 And in decid-
ing whether a union has acted arbitrarily or capriciously in
the handling of grievances, the Board has laid stress on the
union's responsibility at least to investigate the grievance in
more than a perfunctory fashion 11 and to submit its find-
ings for examination by its grievance committee, if it has
one.18
In the present case it is true, as I have found, that Scott
was personally resented by both Rimes and Chipullo.
However, it is not the fact of this personal resentment
which is of moment but rather whether that hostility
caused Respondent to give Scott less than his dust due.19
Turning now to case at bar I will initially consider the
conduct of Chipullo-who, the complaint alleges, refused
to accept or process a grievance on two occasions, Septem-
ber 25 and on or about September 27 (the second incident,
I have found, occurred on September 26).
In their first meeting Chipullo made known to Scott his
hostility towards him. However, crucially, Scott did not ask
Chipullo to file a grievance for him at this time. Scott only
discussed the possibility of a grievance over what had oc-
curred. This is apparent from the testimony of Scottt from
which my findings as to the incident have primarily been
made and also from the testimony of Chipullo. It is also
evident from the fact that Scott approached Chipullo the
next day and specifically requested Chipullo to file a griev-
14 General Truckdrivers, Warehousemen, Helpers and Automotive Employ-
ees, Local 315, etc (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975)
15 Carpenters, Local Union #1104 (The Law Company, Inc), 215 NLRB
537 (1974)
16
General Truckdrivers Local 315 (Rhodes & Jamieson, Ltd), supra
17 E L Mustee & Sons, Inc, 215 NLRB 203 (1974)
18 Id
19 Carpenters, Local Union #1104, supra
ance . Hence I conclude that, regardless of his personal feel-
ings toward Scott, Chipullo did not actually refuse to ac-
cept or process a proffered grievance in the September 25
incident.
In this second meeting a day later Scott did ask Chipullo
to file a grievance. But here again Chipullo did not, in
behalf of Respondent, reject Respondent's obligation to
consider that grievance. Chipullo, in effect, merely refused
because of his own interest in the matter, which was op-
posed to that of Scott. In disqualifying himself Chipullo
referred Scott to Rimes-a referral which Scott indeed ac-
cepted.
I, accordingly, conclude that Chipullo, on behalf of Re-
spondent, did not refuse to accept or process a grievance
either on September 25 or 26, and that Respondent did not
violate Section 8(a)(I)(A) of the Act by Chipullo's conduct
in either instance. I am further constrained to observe that
in withdrawing himself from the grievance Chipullo acted
wisely if only to protect himself and Respondent from a
charge that a steward had mishandled a grievance to satis-
fy the steward's own personal feelings in the matter.20
This brings us to Rimes for whose conduct Respondent
is charged with having unlawfully refused to accept or pro-
cess a grievance on September 29 and October 9.
It is true that Rimes harbored ill feelings towards Scott
and that he refused to accept Scott's grievance on Septem-
ber 29 and to handle the appeal from its denial on October
9. However, when Rimes refused to process Scott's griev-
ance on September 29, Rimes, regardless of his personal
opinion of Scott, had already investigated the matter and
learned that Chipullo had been assigned overtime on Sep-
tember 24 and 25 at a time too late to call in Scott.
Management's action in this instance was consistent with
its normal practice in such situations and that practice, as
Rimes had learned from examining the collective-bargain-
ing agreement, was not inconsistent with the relevant pro-
visions of that instrument. Hence, when Rimes declined to
accept Scott's grievance, Rimes had already investigated it
objectively and concluded that it was without merit. In
investigating it Rimes had gone directly to the supervisor
who had made the determination to assign Chipullo, i.e.,
Mullins. While Rimes also told Scott on September 29 that
members should not be filing grievances against each other
(viz, Scott against Chipullo) this was an afterthought which
followed Rimes' recitation of the results of his inquiry.21
Respondent has no formal internal grievance processing
organization. It has only a loosely organized group who
may be called to pass upon the merits of grievances 22 At
least a majority of this group (Rimes, Harris, Usher, and
Shirely) were consulted and felt that the grievance was
without merit.23
20 See Allen L Griffin v International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UA W, 469 F 2d 181 (C A 4,
1972)
21 As is obvious from my findings as to this incident which are based
primarily on Scott's own testimony
22 This loose arrangement is thus substantially different from the contract
requirements for a formal grievance committee procedure, i.e , is unlike
E L Mustee & Sons Inc, supra, wherein the Board attached considerable
weight to the failure of the respondent union to comply with such procedure
in that case
23 Only Mischung was shown not to have been consulted
AMERICAN POSTAL WORKERS UNION LOCAL 4193
When Scott came in to see Rimes with Scott's appeal on
October 9, Rimes had not only investigated the subject
matter of the grievance, but had also consulted other union
officials who had agreed with him that the grievance was
without ment.
From the foregoing it is manifest that Rimes did handle
Scott's grievance to the extent of investigating it and con-
sulting with other union officials but did not thereafter
process it because Rimes concluded that it was without
basis. Rimes' conclusion was not unreasonable nor did it
rest substantially upon any desire to protect Chipullo, who
had already resigned from his union position by September
29. Rimes' conclusion was also concurred in by most of the
members of Respondent's grievance committee. Further,
significantly, no evidence was presented at the hearing
which would raise a question as to the correctness of the
facts on which this conclusion was based .21
This leaves us with only two loose ends-Chipullo's
overtime work on September 29 and Afternoon Supervisor
McClure's failure to assign Scott overtime to work on the
3579's on any of the 3 days in question.
It does not appear that Rimes investigated that aspect of
the grievance which dealt with Chipullo's overtime work
on September 29. However, I conclude in all the circum-
stances that such an investigation would have added noth-
ing, because what Rimes would have learned as to the inci-
dent on September 29 is the same as he had already
learned as to the incidents of September 24 and 25-to wit,
that Chipullo was chosen for overtime too late in the morn-
ing of September 29 to call in any second shift employee,
like Scott, 2 hours earlier than the would-be callee's normal
shift time. 5 Rimes would have further learned that Chipul-
lo by this time had his name on the "Overtime Desired"
list. Hence, the facts as to the incident of September 29
were essentially the same as the earlier incidents com-
plained of except that there was even greater justification
for the Employer's selection of Chipullo to work than there
had been on the two prior occasions.
It likewise does not appear that Rimes spoke with Mc-
Clure, Scott's supervisor, in respect to his grievance-this
despite the fact that there was work to be performed on the
3579's which could have been assigned to Scott at that
time.
However, I find no dereliction on the part of Rimes in
failing to speak with McClure or to investigate how much
3579 work was available for Scott. I reach this conclusion
24 While Scott offered the opinion that a supervisor should know that
overtime is necessary by 7.30 a in , this does not disprove that on the days in
question the now of incoming mail was such that no judgment as to over-
time could be made until a time too late to call in employees from the
second shift to come in early
25 I make this finding on the basis of the Employer's findings in connec-
tion with the investigation of the gnevance (Resp. Exh 4, received in evi-
dence without objection)
1005
on the basis that Scott never informed Rimes (or Chipullo
either) that he sought to grieve over McClure's failure to
offer Scott overtime on the 3579's-nor indeed is such a
matter mentioned in any of the grievance papers.26 Scott
only grieved over Chipullo's selection to work overtime.
And Chipullo, I find, worked on all three occasions sorting
third class incoming mail.27 Hence the thrust of the investi-
gation which Rimes was required to-and did-conduct
was to ascertain what work Chipullo did on the aforemen-
tioned date-which Scott claimed he should have been as-
signed to do-and to learn the circumstances of Chipullo's
assignment. Chipullo was selected to work overtime by
Mullins in order to finish the sorting of mail. Rimes went
to see Mullins and established from him these facts. Rimes
had no obligation to investigate whether Scott had grounds
for any other grievance, i.e., any grievance that he had not
been assigned to handle the 3579's on an overtime basis.
On the basis of all the foregoing I conclude that by
Rimes' failure to prosecute Scott's grievance on and after
September 29 and Rimes' refusal to appeal the denial of
that grievance on and after October 9, Respondent did not
violate Section 8(b)(1)(A).28
Having found that Respondent has committed no unfair
labor practice on the basis of the foregoing objected-to
conduct of Chipullo and Rimes, I shall recommend that
the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is labor organization within the
meaning of Section 2(5) of the Act.
3. By not prosecuting the grievance of the Charging Par-
ty, William Scott, or to appeal from its denial, variously, on
September 25, 26, and 29, and October 9, 1975, Respon-
dent has not violated Section 8(b)(1)(A) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issued the following rec-
ommended:
ORDER 29
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
26 If there was a grievance in this regard , Scott never sought Respondent's
assistance in respect to it
27 See Resp Exh 4
2e
Carpenters, Local Union #1104, supra
29 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.