Columbus Area Local, American Postal Workers Union, Afl-Cio (U.S. Postal Service)

National Labor Relations Board - Board Decisions

Nov 19, 1985

277 N.L.R.B. 541 (N.L.R.B. 1985)

AMERICAN POSTAL WORKERS (POSTAL SERVICE)
Columbus Area Local , American Postal Workers
Union, AFL-CIO (U.S. Postal Service) and
Jesse F. Williams . Case 9-CB-5337(P)
19 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 25 May 1983 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Columbus Area Local, American Postal
Workers Union, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified:
1. Substitute the following for paragraph 2(a).
"(a) Move to dismiss the lawsuit the Respondent
filed against John D. Harsunye in Franklin County
Municipal Court."
2. Substitute the attached notice for that of the
administrative law judge.
We note that the duty of fair representation requires that a grievance
filed by a bargaining unit member , whether union member or non-
member, not be processed by the union in an arbitrary, discriminatory,
perfunctory, or bad-faith manner Vaca v. Sipes, 386 U.S 171 (1967).
2 We agree that the Respondent should be ordered to move to dismiss
the, lawsuit it filed against nonmember John Harsunye seeking recovery
of expenses the Respondent incurred in processing his grievance. We find
the Respondent's reliance on Bill Johnson's Restaurants V. NLRB, 461
U.S. 731 (1983), misplaced, because the Respondent's suit "has an objec-
tive that is illegal under federal law " 461 U S at 737 fn 5. See Laundry
Workers Local 3 (Virginia Cleaners), 275 NLRB 608 (1985).
Patricia Rossner Fry, Esq., for the General Counsel.
Leonard S. Sigall, Esq., of Reynoldsburg , Ohio, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. This
matter was heard by me on February 7, 1983, in Colum-
bus, Ohio. Based on an unfair labor practice charge filed
on August 10, 1982, by Jesse F. Williams against the Co-
277 NLRB No. 59
541
lumbers Area Local, American Postal Workers Union,
AFL-CIO (the Respondent), the Regional Director for
Region 9 of the National Labor Relations Board issued a
complaint dated September 17, 1982. The complaint al-
leges that Respondent violated Section 8(b)(1)(A) of the
National Labor Relations Act, by billing and attempting
to collect fees from nonmembers for processing griev-
ances. Respondent denied the commission of any unfair
labor practice.
On consideration of the entire record, to include
posthearing briefs filed by the General Counsel and Re-
spondent,' I make the following
FINDINGS OF FACT
1. JURISDICTION
The United States Postal Service (the Employer) pro-
vides postal services for the United Slates of America
and operates various facilities throughout the country in
performance of that function including its facilities in
Columbus, Ohio, the only facilities involved in this pro-
ceeding. The Board has jurisdiction over the Employer's
operations in this matter by virtue of Section 1209 of the
Postal Reorganization Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, an affiliated local of the American Postal
Workers Union, AFL-CIO, and the American Postal
Workers Union, AFL-CIO are now, and have been at
all times material, labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issues Presented
The issues presented are whether Respondent in June
1982 violated Section 8(b)(1)(A) of the Act by posting a
notice on bulletin boards at various postal facilities in the
Columbus area and informing nonmembers that fees
would be charged for processing grievances of non-
members, and whether Respondent violated Section
8(b)(1)(A) of the Act by billing John Harsunye for the
cost of handling his grievance and, when Harsunye did,
not pay expenses incurred by Respondent in processing
his grievances, by filing suit in Franklin County Munici-
pal Court against John Harsunye seeking to collect
$9.75, which Respondent charged him fir processing his
grievance.
For the reasons below, I find consistent with Board
precedent that Respondent violated Section 8(b)(1)(A)2
of the Act.
1 The General Counsel's motion to correct transci ipt, which was unop-
posed by Respondent, is granted
2 Sec. 8(b)(1)(A) of the Act provides, in pertinent part, that:
(b) It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coeerce (A) employees in the exercise of the
rights guaranteed in Section 7. Provided that this paragraph shall
not impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership
therein,
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
The facts in this case are undisputed. The American
Postal Workers Union has an extensive history of collec-
tive -bargaining with the United States Postal Service.
Their latest collective-bargaining agreement, which is ef-
fective from July 21, 1981, to July 20, 1984, includes a
grievance procedure culminating in final and binding ar-
bitration.
Although Respondent is the exclusive bargaining rep-
resentative of unit employees, it is prohibited by Federal
law from having a union-security clause in its collective-
bargaining agreement with the Postal Service. Members
of the bargaining unit are therefore free to remain non-
members of Respondent. Currently Respondent has
about 1250 members who pay $20.93 per month in dues.
Respondent also represents another 400 unit employees
who are nonmembers of the Union.
In June 1982 Respondent posted on bulletin boards in
various postal facilities in the Columbus area a notice
which stated:
To Non-Members
No grievances will be filed for nonmembers
unless directly requested by the (nonmember). No
steward will file a step 1 nor will he or she hold a
step I discussion with your supervisor unless direct-
ly requested by the non-member.
All forms will cost a nonmember $.25, all time
off the clock spent on your grievance or any help
requested by a nonmember will cost $10.00 per
hour. All items, i.e., transportation, phone calls, will
be charged to the nonmember.
All nonmembers will be billed, if payment is not
received within 15 days we will take the non-
member to court to recover our costs.
All grievances after step 1 becomes property of
this local. Any request for information after step 1
will be at an extra expense. [Jt. Exh. 3.]
About the same time that this notice was posted, Re-
spondent also sent a letter to nonmembers which stated
in pertinent part:
If you are not a member of the APWU we will
no longer hold step 1 for you unless we are request-
ed to do so by you. You will be required to pay for
all expenses incurred by this local in handling your
grievance. All forms are $.25 each, all time, off the
clock, spent on your grievance will be $10.00 per
hour; transportation and other expenses will be
charged to you.
'Any nonmember who fails to pay will be taken
to court to recover our losses. [Jt. Exh. 2.]
John D. Harsunye, a nonmember, signed an agreement
with Respondent dated July 13, 1982, which stated in
part:
I hereby give my consent to have any grievance,
(No. 72181A, CM) appealed to the highest step pos-
sible to receive a resolve. I understand APWU posi-
tion on nonmembers' fees and I will accept respon-
sibility for the financial fees pertaining to this griev-
ance. I also understand that I will be "billed" for
forms and [et cetera] concerning this grievance.
Harsunye did not pay pursuant to his agreement and
Respondent sued him in the Franklin County Municipal
Court for $9.75. No steps have been taken to secure a
default judgment against Harsunye, although the evi-
dence indicates that he is in default.
The July 1982 edition of The Vindicator, Respondent's
newsletter, contained an article arguing the benefits of
union membership. The article included the assertion that
"NONUNION MEMBERS ARE FREELOADERS,"
and the remark "Even in the short term you might be
surprised how costly it could prove to be for you to
remain outside the Union." (G.C. Exh. 2.)
Respondent incurs a number of expenses in processing
grievances of members or nonmembers of the Union. Ar-
ticle 31, section 2 of the present collective-bargaining
agreement allows the Postal Service to charge Respond-
ent for costs incurred in supplying information needed
for processing grievances. Respondent is charged $13.40
per hour for research time to get information necessary
to process grievances, and 10 cents per copy. These
amounts must be paid in advance, and are paid out of
union dues. Other expenses which must also be paid
from union dues but incurred in processing' grievances of
members and nonmembers include the union steward's
transportation expenses, reimbursement for steward's
leave without pay, and office expenses such as copying
machines. Uncontradicted testimony at trial was to the
effect that taking a grievance to arbitration would cost a
minimum of $1000.
Respondent's letter to nonmembers stated that non-
members would be charged 25 cents per form and $10
per hour for leave without pay of the representative for
his or her time off the clock in handling the grievance.
The 20 cents per mile which Respondent reimburses
stewards for travel in connection with processing griev-
ances would also be charged to nonmembers.
Respondent has continued to represent nonmembers in
grievance proceedings regardless of whether or not they
have paid. No nonmember has been refused representa-
tion because of his or her failure to pay.
Jesse F. Williams, the Charging Party in this case, re-
signed from the Union in March 1981 after 20 years of
membership. In June 1982, he received a copy of the
letter sent to nonmembers, which was referred to above.
In August 1982, Williams filed a grievance claiming that
a supervisor was doing bargaining unit work. On August
10, 1982, he filed the charge which is the basis of this
complaint. Williams' grievance was handled in the
normal fashion, as far as this record reflects, and Wil-
liams was not charged any fee or expenses by Respond-
ent for the processing of his grievance.
C. Analysis and Conclusions
Respondent argues that it should be allowed to recov-
er expenses- it incurs in representing nonmembers in proc-
essing grievances. Union members, the argument- pro-
ceeds, by paying dues pay their fair share of the expenses
associated with grievance processing and it is only fair to
AMERICAN POSTAL WORKERS (POSTAL SERVICE)
pass on to nonmembers the cost of processing any griev-
ance they may file, especially in light of the fact that the
Union is required to process grievances of nonmembers
and may be sued civilly for money damages if it breaches
its duty of fair representation.3 Respondent argues that
nonmembers who do not pick up the expenses of proc-
essing their grievances are "freeloaders ." The situation is
aggravated by the fact that pursuant to Federal law a
union-security clause is not permitted in any collective-
bargaining agreement between the Union and the Postal
Service.
Although all these arguments have some merit, this
case must be decided in accordance with the law as it
exists as of the writing of this decision. That law is quite
clear. Section 7 of the Act specifically gives employees
the right to refrain from joining a union. Section
8(b)(1)(A) makes it an unfair labor practice for a union
or its agents to restrain or coerce employees in the exer-
cise of those rights guaranteed in Section 7. A union,
which is the exclusive bargaining representative of all
employees in the unit , must represent all members of the
bargaining unit and deligently pursue their meritorious
grievances whether those employees are dues-paying
members of the Union or not. Vaca v. Sipes, 386 U.S. 171
(1967).
Although the issue of so-called freeloaders may be one
of growing concern to Respondent it is not a novel issue.
Over the years the Board has addressed this issue in a
number of cases to include Hughes Tool Co., 104 NLRB
318 (1953); Plumbers Local 141, 252 NLRB 1299 (1980),
Exxon Co. U.S.A., 253 NLRB 213 (1980); Machinists
Local 697 (H.O. Canfield), 223 NLRB 832 (1976); and
Electrical Workers Local 396 (Central Telephone Co.), 229
NLRB 469 (1977). From a study of these cases it is clear
that, in the absence of a valid union-security clause, a
union may not charge nonmembers for the processing of
grievances or other services.
Although arguments can be made to the contrary, the
law is clear that a union violates Section 8(b)(l)(A) of
the Act by charging or threatening to charge non-
members the costs of processing any grievances they
may file. Charging nonmembers the cost of providing a
service which members get free (even though they pay
dues) has a coercive effect on nonmembers in the exer-
cise of their right to join or refrain from joining a union.
It is noted that it would take over 4 years' worth of
dues to pay for the cost of one single grievance taken to
arbitration. This would necessarily have a coercive effect
on nonmembers in the exercise of their right to join or
refrain from joining a union. It is also noted that a union
member who is prone to grieve more than his fellow em-
ployees4 would himself become a so-called freeloader.
If Respondent wants a change in the law in this area it
will have to secure it from the Board or higher author-
ity.
6 The Supreme Court recently held that a union could be held finan-
cially liable for breaching its duty of fair representation by failing to ade-
quately pursue a meritorious grievance . Bowen v. Postal Service, 459 U S.
212(1983)
4 Evidence at the hearing reflected that less than 10 percent of the bar-
gaining unit employees ever grieved a matter and that some bargaining
unit employees grieved substantially more often than others
543
Because I find that Respondent has committed the
unfair labor practices noted above, I will recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Columbus Area Local, American Postal Workers
Union, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
2. By informing nonmembers that, they would be re-
quired to pay expenses Respondent incurred in process-
ing the grievances of nonmembers, and by commencing a
lawsuit against nonmember John D. Harsunye for failing
to pay expenses Respondent incurred in processing his
grievance, Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(b)(1)(A) and 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Columbus Area Local, American
Postal Workers Union, AFL-CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Notifying nonmembers of Respondent that they
will be billed for expenses incurred by Respondent in
representing such employees in grievance proceedings.
(b) Requiring John D. Harsunye or any other non-
member of Respondent to pay to Respondent expenses
incurred by Respondent in processing grievances they
file.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Dismiss the lawsuit Respondent filed against John
D. Harsunye in Franklin County Municipal Court.
(b) Post copies of the attached notice marked "Appen-
dix."6 Copies of the notice, on forms provided by the
Regional Director for Region 9, 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 and em-
ployees 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.
5 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
6 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 "
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 charge or threaten to charge non-
members of the Union for expenses incurred by the
Union in representing such employees in grievance pro-
ceedings.
WE WILL NOT threaten to file suit or file suit against
any nonmember seeking to collect expenses from non-
members for processing grievances.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of rights guaranteed
them in the National Labor Relations Act.
WE WILL dismiss the lawsuit we filed against John D.
Harsunye in Franklin County Municipal Court.
COLUMBUS AREA LOCAL, AMERICAN
POSTAL WORKERS UNION , AFL-CIO