Laborers' International Union Of North America, Afl-Cio, Local 305 (U S Postal Service)

National Labor Relations Board - Board Decisions

Feb 16, 1989

292 N.L.R.B. 1216 (N.L.R.B. 1989)

1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National Post Office Mailhandlers , Watchmen, Mes
sengers and Group Leaders, Division of the La-
borers' International Union of North America,
AFL-CIO, Local 305 (U S Postal Service) and
Al-Amin S AsSalaam Case 5-CB-5212
February 16, 1989
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On October 14, 1986, Administrative Law Judge
Arline Pacht issued the attached decision The Re-
spondent 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, i and
conclusions,2 but not to adopt the recommended
Order 3
AMENDED REMEDY
The Respondent has engaged in unfair labor
practices, and we shall order it to cease and desist
and to take affirmative action designed to effectu-
ate the purposes of the Act AsSalaam presented
documents to support his claims and an earlier case
involving similar issues resulted in an arbitration
award in favor of another employee Accordingly,
we find that the General Counsel has established
that AsSalaam's grievances clearly were not frivo
bus
The burden of proof now shifts to the Respond-
ent to establish that AsSalaam s grievances were
not meritorious The Respondent may attempt to
prove that AsSalaam s grievances lack merit at
either the unfair labor practice hearing or at the
compliance stage See Rubber Workers Local 250
(Mack-Wayne Closures), 290 NLRB 816 (1988)
(Mack- Wayne II) 4 We will remand this case to the
i 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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Chairman Stephens and Member Johansen disavow reliance on the
judge s discussion and characterization of the merits of AsSalaam s griev
ances The amended remedy provides that on remand the merits of the
grievances may be fully litigated
3 The Respondent excepts to the judge s inclusion of a visitatorial
clause in the recommended Order We have concluded that under the
circumstances of this case such a clause is not warranted and should not
be included in any supplemental order the judge recommends See Chero
kee Marine Terminal 287 NLRB 1080 (1988)
4 Member Cracraft agrees with her colleagues that the Respondent vio
lated the Act as alleged However Member Cracraft in accordance with
judge so that the Respondent may elect to litigate
the merits of AsSalaam's grievance now or at the
compliance stage Should the Respondent elect to
litigate the merits issue now, the judge shall con-
vene a hearing for the purpose of taking evidence
and, on conclusion of the hearing, the judge shall
prepare and serve on the parties a supplemental de-
cision Should the Respondent elect to litigate the
merits issue at the compliance stage, then the judge
shall recommend that the Respondent be ordered
to comply with provisional make-whole and other
remedies similar to those set out in Rubber Workers
Local 250 (Mack Wayne Closures), 279 NLRB 1074
(1986) (Mack Wayne I)
ORDER
It is ordered that the record in this proceeding is
reopened and remanded to Administrative Law
Judge Arline Pacht for the purpose of allowing the
Union to elect whether to present evidence on the
merits of the grievances at a hearing or at a subse-
quent compliance stage
If the Union elects to present evidence on the
merits of the grievances at the compliance stage,
then the judge shall recommend an appropriate
order that shall contain provisional make whole
and other remedies, including a cease and-desist
order See Rubber Workers Local 250 (Mack- Wayne
Closures), 279 NLRB 1074 (1986)
If the Union elects to present evidence on the
merits of the grievances at this time, Judge Pacht
shall convene a further hearing for the purpose of
taking evidence in accordance with this decision,
and on the hearing's conclusion, Judge Pacht shall
prepare and serve on the parties a supplemental de
cision containing findings of fact, conclusions of
law, recommendations and an appropriate order
Following service of the supplemental decision on
the parties, the provisions of Section 102 46 of the
Board's Rules and Regulations shall govern
her partial dissent in Mack Wayne II would place the burden of proof on
the General Counsel to establish that AsSalaam s grievances were merito
rious before the Board may assess backpay liability against the Union
The record reveals that the issue of whether the grievances were merito
sous was not fully litigated at the hearing Therefore Member Cracraft
does not believe that the General Counsel has met her burden notwith
standing the judge s comments regarding the merits of AsSalaam s grtev
ances However as Member Cracraft s dissent would change the burden
of proof in these cases and as the General Counsel would not have been
on notice of this change Member Cracraft would remand the case to the
judge to allow the parties to present evidence on the issue of whether the
grievances were meritorious with the burden on the General Counsel to
establish that they were
Paula S Schaeffer Esq for the General Counsel
Jack W Burtch Jr Esq, of Richmond Virginia for the
Respondent
292 NLRB No 131
MAIL HANDLERS LOCAL 305 (POSTAL SERVICE) 1217
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge The trial
in the above captioned case was held on 28 July 1986 in
Baltimore, Maryland based on an unfair labor practice
charge filed on 20 December 1985 by the Charging
Party On 19 May 1986 a complaint and notice of hear
ing issued alleging that the National Post Office Mail
handlers, Watchmen, Messengers and Group Leaders Di
vision of the Laborers International Union of North
America Local 305 (Respondent or Local 305) violated
Section 8(b)(1)(A) of the National Labor Relations Act
as (the Act) by refusing to accept and threatening not to
properly process the Charging Party s grievances be
cause of his nonmembership in the Union Respondent
filed a timely answer denying the commission of the al
leged unfair labor practices
On the entire record from my observation of the de
meanor of the witnesses, and having considered the par
ties posthearing briefs I make the following
FINDINGS OF FACT
I JURISDICTION
The United States Postal Service (the Employer) pro
vides postal services for the United States and operates
various offices in the performance of that function in
cluding the facility involved in this proceeding located at
900 East Fayette Street Baltimore Maryland The
Board has jurisdiction over the Employer by virtue of
Section 1209 of the Postal Reorganization Act
Respondent, Local 305 an affiliate of the International
Union at all times material has been a labor organization
within the meaning of Section 2(5) of the Act
Introduction
The Employer and the Respondent have been parties
to a series of collective bargaining agreements, the latest
of which expires on 20 July 1987 The agreement con
tams inter alia a four step grievance procedure culmi
nating in final and binding arbitration 1
Al Amin AsSalaam has been employed by the Postal
Service since November 1984 Although in the unit of
employees represented by Local 305 he is not a union
member
Throughout 1985 Al Amin AsSalaam unfortunately
suffered a series of injuries both on and off the job caus
ing his physicians periodically to recommend limited or
light duty for him 2 The Employer s refusal to grant him
light duty on two occasions led him to seek the shop
stewards assistance in filing grievances However no
grievances were submitted on his behalf Thereafter, pur
suant to AsSalaam s charge the instant complaint issued
alleging in pertinent part that on or about November
25 1985 Respondent acting through Lewis Dade Jr
threatened not to properly process the Charging Party s
grievances concerning the Employers decision to require
him to return to his regular job duties because of the
Charging Party s nonmembership in Respondent and
since that date Respondent has refused to accept griev
ances concerning the Employers decision By the
above described acts, the complaint further alleges that
Respondent has failed to represent the Charging Party
for reasons which are unfair, arbitrary, invidious and a
breach of the fiduciary duty owed the employees whom
it represents, and has restrained and coerced employees
in the exercise of their Section 7 rights
II THE ALLEGED UNFAIR LABOR PRACTICES
On 4 January 19853 AsSalaam was injured on the job
which required that he be assigned to limited duty
Except for absences due to two automobile accidents, his
injuries compelled him to remain on limited or light duty
through October 28 On that date, AsSalaam submitted a
form to a nurse in the Employers medical unit from his
personal physician recommending that he be continued
on limited duty Contrary to this advice the nurse certi
fled him fit for regular duty relying on a report prepared
on 9 October by a Postal Service physician
Immediately after reporting for work on 29 October,
AsSalaam requested his supervisors consent to consult
with the shop steward, Lewis Dade so that he might file
a grievance over being returned to regular duty There
after AsSalaam was shuffled from one supervisor to an
other but the day ended without his being granted offs
cial leave to meet with Dade
Nevertheless, AsSalaam testified that he sought out
Dade on his own initiative at the facility and told him he
wished to file a grievance over his assignment to regular
duty However, Dade declined to confer with him until
he was officially released by his supervisor Later the
same day, AsSalaam again located Dade and asked to
speak with him Once again Dade refused because he
then was on his break and still had not received supervi
sorial consent
Although performing his regular job duties on 29 Oc
tober, AsSalaam was reinjured Over the next several
weeks he was examined by several physicians By 22 No
vember one of his treating doctors determined that he
could return to work but only for limited duty
When AsSalaam submitted this doctor s recommenda
tion to the medical unit nurse, she reacted exactly as she
had on the previous occasion that is relying on the
same 9 October in house medical evaluation she insisted
that AsSalaam return to regular duty AsSalaam protest
ed this decision to the director of injury compensation
William Brown who advised him that because no limit
ed assignments were available he had two choices
either resume his regular job or go home and await a
hearing 4 AsSalaam chose the latter alternative Howev
1 See Jt Exh I at 65 et seq
2 Under the collective bargaining agreement limited duty refers to
work assigned for an employee who sustained an injury on the job while
light duty applies where the injury incurred on nonworking time
3 All dates refer to 1985 unless otherwise noted
4 The collective bargaining agreement provides for a hearing to resolve
any disagreement that may apse between an employees physician and a
physician designated by the USPS concerning the employees medical
condition See Jt Exh I at 54-55
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er no hearing was ever held to resolve the divergent
medical opinions about his fitness to work
On 25 November, AsSalaam called Dade at home and
requested that they meet to consider his grievances As
agreed Dade visited AsSalaam at his home that evening
AsSalaam testified that he specifically requested that
Dade grieve the following four matters (1) the Postal
Service refusal to allow him to see a steward on 29 Oc
tober (2) the Postal Service returning him to regular
duty that day against his doctor s advice, (3) a supervi
sor s placing him on AWOL status when he left work
on 29 October after being reinjured and (4) William
Brown s sending him home on 22 November because no
regular work was available
Dade told AsSalaam that the fourth matter would
have to be submitted to the Equal Employment Opportu
nity (EEO)5 office because it affected a management of
ficial who was beyond the stewards jurisdiction Con
cerning the first three complaints Dade advised AsSa
laam that he could handle them at the step 1 level 6
Dade then told AsSalaam that if the grievance went to
step 2 or 3, the Union s regional personnel would deter
mine whether the grievant was a member If not they
would put his grievance on the bottom of the stack and
might refuse to authorize funds for legal representation
or a third party medical opinion Dade further confided
that an alternate union steward had remarked that AsSa
laam already had used too much union time When As
Salaam finally asked Dade whether he would file his
grievances Dade replied that he could not do so until
AsSalaam returned to work because he needed all the
parties present to discuss the matter However, Dade
told him he would speak to union people in Richmond
Virginia (the site of Local 305 s regional office) about his
case
Thereafter no grievances were filed in AsSalaam s
behalf In fact the Charging Party testified that he did
not hear from Dade again until he received a message on
his telephone answering machine on 27 December, 1
week after he filed the unfair labor practice charge
giving rise to this proceeding When AsSalaam returned
the call in early January Dade apologized for not con
tacting him sooner but did not mention his grievances
Dade, who served as Respondents shop steward since
1968 gave a vastly different account of his contacts with
the Charging Party At the outset he recalled no meet
ings with AsSalaam on 29 October Instead he claimed
that after receiving authorization from his supervisor he
met with AsSalaam in the Postal Service cafeteria in
early November During this meeting he designated the
documents he needed to support the grievance and As
Salaam purportedly agreed to obtain them for him Dade
testified that generally after an employee submits a
grievance he will investigate the matter and search the
record for any materials that have been identified and
might be needed as proof' He also explained that he
makes no judgments about the legitimacy or the com
plaints, but files all grievances submitted to him Not
withstanding his customary practice Dade did not inves
tigate AsSalaam s grievances nor arrange a meeting with
the supervisor involved allegedly because the Charging
Party had filed many worthless complaints in the past
Yet Dade could neither recall nor document any prior
grievance that had not been resolved in AsSalaam s
favor Indeed the record shows that AsSalaam was sub
stantially vindicated in two grievances filed in March
and May
Dade does not dispute the fact that he met with AsSa
laam in late November nor does he deny that the Charg
mg Party explained the factual circumstances underlying
his grievances and identified certain documents that sup
ported his account Although conceding that he regard
ed AsSalaam s telephone call as urgent and drove 5 miles
to see him that same evening bringing with him his
stewards briefcase containing other employees griev
ance files, Dade insisted that their meeting did not and
could not initiate the grievance procedure Rather Dade
maintained (incorrectly) that the contract specified that
the grievance procedure could only be triggered when
the grievant was at work on the clock 8 Dade further
testified that AsSalaam again promised to obtain a
number of documents for him However the steward
denied telling AsSalaam that the Union would not prop
erly represent him because of his nonunion membership
In fact he denied knowing whether AsSalaam or anyone
else in the unit he has represented since 1968 belonged to
Local 305 Dade further claimed that after their 25 No
vember he attempted to telephone AsSalaam on numer
ous occasions but only reached his telephone answering
service
On 15 January 1986 AsSalaam received a letter dated
8 January from Respondents president requesting that
within 1 week he supply detailed information to docu
ment his grievances AsSalaam phoned the regional
office to explain that he could not deliver the material
within the prescribed time limit On 27 January he re
sponded with as much information and material as he
could assemble by that date However he heard nothing
more from the Union AsSalaam returned to regular duty
on 24 February 1986
5 The record indicates that Dade was referring to an Equal Opportum
ty Office within the Postal Service facility
8 Step 1 of the collective bargaining agreement provides (a) Any em
ployee who feels aggrieved must discuss the grievance with the employ
ce s immediate supervisor within fourteen ( 14) days of the date on which
the employee or the Union first learned or may reasonably have been ex
pected to have learned of its cause The employee if he or she so desires
may be accompanied and represented by the employees steward or a
Union representative The Union also may initiate a grievance at Step 1
within 14 days of the date the Union first became aware of (or reason
ably should have become aware of) the facts giving rise to the grievance
In such case the participation of an individual grievant is not required
' The collective bargaining agreement provides that the steward shall
have access to review the documents files and other records necessary
for processing a grievance or determining if a grievance exists (Jt Exh
1at80)
8 Dade referred to language in sec 17 4 of the collective bargaining
agreement (Jt Exh I at 81 ) as authority for his position However the
cited provision deals with the Employers obligation to pay the aggrieved
and the steward for time actively spent in grievance handling Contrary
to Dade s construction the provision does not require that that grievant
and steward must be at work to initiate or process a grievance
MAIL HANDLERS LOCAL 305 (POSTAL SERVICE) 1219
III DISCUSSION AND CONCLUDING FINDINGS
In its status as an exclusive bargaining representative, a
union is obliged to serve the interests of all employees in
the unit Vaca v Sipes, 386 US 171 (1967) A union
breaches this duty when its conduct towards a member
of the bargaining unit is arbitrary, discriminatory or in
bad faith Id at 190 While a union is afforded broad dis
cretion in deciding which grievances to pursue and how
to handle them, it may not ignore meritorious grievances
or process them in an arbitrary or perfunctory fashion
However, mere negligence is insufficient to establish a
breach of the duty of fair representation Service Employ
ees Local 3036 (Linden Maintenance), 280 NLRB 995, 996
(1986)
The question here is whether the Respondents failure
to take action in AsSalaam s case was a reasonable exer
cise of its discretion or so arbitrary and unfair as to con
stitute a breach of its fiduciary obligation
In resolving this question, I relied heavily on AsSa
laam s version of events I found him to be a trustworthy
witness whose recall was clear and consistent In con
trast Dade s recollection was vague his testimony was
studded with transparent contradictions and he miscon
strued contract terms in ways designed to justify his own
inaction
Given these observations, I am convinced that AsSa
laam met only briefly with Dade on 29 October at which
time the union steward declined to consider the Charg
ing Party s grievances because their meeting was not of
ficially sanctioned The men could not have met in early
November as Dade testified, for the Charging Party was
absent from work then, returning only briefly for 1 day
in mid November Thus, the first full fledged discussion
of AsSalaam s grievances did not occur until the meeting
on 25 November Dade offered two reasons for his refus
al to pursue AsSalaam s grievances after that date first
he claimed that AsSalaam failed to provide requested pa
perwork needed to support his complaints, and second
that he did not properly initiate the grievance procedure
while at work, on the clock'
Regarding the first claim, I cannot credit Dade s asser
tion that he asked AsSalaam for documentation
Throughout this trial, AsSalaam demonstrated that he
was a responsible employee who punctiliously supplied
required forms in conformance with Postal Service rules
When the Union s president wrote requesting evidence,
AsSalaam answered promptly appending as much mate
rial as he could muster in short order Therefore, it
would be totally out of character for him to ignore
Dade s request for documentation if one had been
made 9
Further, Dade asserted that it was his practice to in
vestigate grievances Indeed, the contract grants the
steward (but not the employee grievant) access to the
documents, files and other records necessary for process
ing a grievance or determining if a grievance exists
Thus Dade knew he could obtain all the requisite infor
B For the same reason I also credit AsSalaam s testimony that he re
ceived only one telephone message from Dade on 27 December If Dade
left messages prior to that date AsSalaam surely would have returned his
calls
matron as easily if not more easily than could the Charg
ing Party
In an effort to explain why he thrust this investigatory
duty on AsSalaam, contrary to his customary procedure,
Dade asserted that AsSalaam had presented worthless
claims in the past and had failed to identify the support
ing materials with sufficient precision As discussed in
the fact statement above, both of these explanations are
refuted by sound testimonial and documentary evidence
To support his second claim that a grievance may be
initiated only when an employee is on the job Dade
cited section 17 4 of the labor contract However, the
referenced clause merely provides that the aggrieved and
the union steward will be compensated for time actually
spent in grievance handling This language cannot be
construed to mean that only those grievances that are
initiated during working hours will be honored More
over, the labor agreement expressly states that the par
ticipation of an individual grievant is not required' at the
first step of the grievance procedure This language com
pletely negates Dade's assertion that AsSalaam had to be
at work while the grievance was processed through the
first level Dade s attempt to distort the terms of the con
tract cannot be attributed to incomprehension or inepti
tude for he served as union steward for 18 years and at
tended annual steward training sessions in all but 2 of
those years Given his experience and training surely
Dade knew how properly to construe contract provi
sions applicable to the performance of his union duties
If Dade did not believe his 25 November meeting trig
gered the grievance procedure, one may ask rhetorically
why he agreed to travel to the Charging Party s home in
the evening and with other grievance files in hand
spend 45 minutes listening to AsSalaam s account of his
grievances Clearly Dade an experienced steward who
carefully maintained files for each grievant, did not
simply forget or inadvertently ignore AsSalaam s com
plaints Even assuming that Dade believed that AsSa
laam s presence at the step 1 meeting was necessary to
lend credibility and specificity to his grievances at least
he could have scheduled a meeting in AsSalaam s ab
sence Dade s failure to take even this preliminary step is
indicative of his arbitrary neglect of the Charging Party s
grievances
It is impossible to state with certitude that AsSalaam
would have prevailed had his grievances been properly
processed but it is not necessary to decide that question
here However, the apparent validity of AsSalaam s
claims does play a role in considering whether Dade s in
action falls within the exercise of broad discretion grant
ed to a steward Even if Dade mistakably believed that
AsSalaam had presented frivolous grievances in the past,
he had no reason to doubt the validity of his current
complaints AsSalaam s presentation of the facts was
straightforward and unambiguous , the documents needed
to substantiate his claims were clearly identified and
available to the steward for the asking In these circum
stances, Dade's failure to represent AsSalaam with the
same diligence he ostensibly accorded to other grievants
cannot be explained as a reasonable exercise of discre
tion Moreover, the Respondent did not and could not
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suggest that the Charging Party s grievances lacked
merit for in February 1986 an arbitration decision issued
granting an award to another Postal Service employee in
a case raising issues similar to those in AsSalaam s
matter Plainly the Charging Party had a better than
even chance of prevailing on the merits
Having ruled out negligence, ineptitude and discre
tion only one plausible explanation remains for Dade s
mishandling of AsSalaam s complaints It will be recalled
that Dade warned AsSalaam that his grievances would
go to the bottom of the stack and that the Union might
fail to provide counsel or a third party medical opinion if
his grievances went beyond step 1 10 Also Dade had
told the Charging Party that he had consumed too much
union time From these comments and in the absence of
any other reasonable explanation, it is fair to infer that
Dade chose to ignore AsSalaam s grievances in the belief
that a nonunion member did not warrant further union
attention Dade s failure to represent AsSalaam for this
reason is considered so arbitrary under Board case law as
to constitute a breach of Respondents fiduciary duty to
fairly represent all members of the bargaining unit See
Service Employees Local 579 229 NLRB 692, 696 (1977)
The Respondent points out that the 14 day contractual
period for filing grievances about AsSalaam s treatment
on 29 October had expired by 25 November Since the
complaint alleges that the Union s misconduct occurred
on 25 November Respondent asserts that it is being ac
cused of disregarding grievances which no longer had
legal significance In other words Respondent contends
that it should not be faulted for failing to act when as a
legal matter no action could be taken
Respondents contention is not persuasive Section 15 2
of the collective bargaining agreement states, inter alia
that the Union also may initiate a grievance at Step I
within 14 days of the date the Union first became aware
of (or reasonably should have become aware of) the facts
giving rise to the grievance (Emphasis added) The
record shows that the union steward first became aware
of the facts giving rise to [AsSalaam s] grievance on 25
November Thereafter Dade had 14 more days to grieve
the Postal Services treatment of AsSalaam even though
the events occurred on 29 October If Respondent was
concerned with protecting the Charging Party s interests
it could have argued (at least through 10 December) that
his grievances were not time barred
Respondent also contends that AsSalaam had the
option of filing the grievances himself However the
Charging Party credibly testified that he was unaware he
had this right Given his prior experience as a communi
ty organizer and the industry he has shown in proceed
ing with the instant case, I have no doubt that AsSalaam
would have handled his own grievance if he had known
he could do so
1s Respondent suggests that Dade s reference to a grievance being
placed at the bottom of the stack was simply an honest recognition
that matters are handled in turn as they are received Even if Dade s
remark in this one respect can be construed innocently his other com
ments about withholding legal representation or a third party medical
opinion plainly implies discriminatory treatment because of AsSalaam s
nonmember status
Respondent also argues that the union presidents sub
Sequent effort to obtain information from AsSalaam rem
edied arguable deficiencies in Dade s performance Had
the Charging Party cooperated with the Local 305 repre
sentatives Respondent submits that a favorable outcome
might have been achieved Respondents reliance on
Rural Letter Carriers (Postal Service) 271 NLRB 1034
(1984), to support its argument is misplaced In the cited
case union officials repeatedly appealed to various postal
authorities to reinstate the grievant Here the union offi
cial sent just one letter to the Charging Party requesting
information that the steward could and should have
readily obtained AsSalaam may have omitted some de
tails in his reply but he supplied enough information to
allow the Union to go forward if that had been its real
intent Instead, the Respondent attributed its subsequent
inaction to a few lapses in AsSalaam s response The
Union s 8 January letter written some weeks after AsSa
laam filed his unfair labor practice charge, appears to be
little more than a belated and inadequate effort to divert
attention from its prior default
In conclusion by failing to process AsSalaam s griev
ances on 25 November and thereafter because he was not
a union member, Respondent breached its duty of fair
representation In addition, through Dade s comments,
AsSalaam was led to believe that his nonmembership in
the Union would result in the Respondents withholding
representational services By such remarks Respondent
restrained and coerced the Charging Party in the exer
cise of his Section 7 right to join or refrain from joining
a labor organization thereby violating Section
8(b)(1)(A) See Highway & Motor Freight Employees Local
667 (Owens Corning Fiberglas Corp) 228 NLRB 398 405
(1977)
THE REMEDY
Having found that Respondent violated the Act I
shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action nec
essary to effectuate the policies of the Act
Specifically I shall recommend that the union attempt
to initiate the grievance procedure in AsSalaam s behalf
in good faith and due diligence with respect to the mat
ters that the Charging Party reviewed with the shop
steward Lewis Dade on 25 November I also shall rec
ommend that the Charging Party be permitted to be rep
resented by counsel of his choosing at the remaining
stages of the grievance and arbitration procedure and
that the Union pay counsels reasonable legal fees In the
event the grievances are not processed because they are
untimely or for any other procedural or substantive
reason, precedent requires that the Respondent shall be
responsible for making the Charging Party whole for any
loss of earnings he may have suffered as a result of its
failure to process his grievance See Service Employees
Local 3036 (Linden Maintenance), 280 NLRB 995, 996-
997 (1986) Rubber Workers Local 250 (Mack Wayne Clo
surer) 279 NLRB 1074 (1986) Backpay shall be comput
ed in the manner prescribed in F W Woolworth Co, 90
NLRB 289 (1950) plus interest as set forth in Isis Plumb
ing & Co, 138 NLRB 716 (1962) enf denied 322 F 2d
MAIL HANDLERS LOCAL 305 (POSTAL SERVICE)
913 (9th Cir 1963), and Florida Steel Corp , 231 NLRB
651 (1977)
CONCLUSIONS OF LAW
1 The Board has jurisdiction over the United States
Postal Service pursuant to the Postal Reorganization
Act section 1209
2 Respondent is a labor organization within the mean
ing of Section 2(5) of the Act
3 By refusing to process AsSalaam s grievances, Re
spondent breached its duty of fair representation in viola
tion of Section 8(b)((l)(A) of the Act
1221
4 By stating that his grievance would not be properly
processed because he did not belong to the Union Re
spondent through its agent, Dade, restrained and coerced
AsSalaam in the exercise of rights guaranteed by Section
7 of the Act thereby violating Section 8 (b)(1)(A)
5 The aforesaid unfair labor practices , occurring in
connection with the operations of the Postal Service
have a substantial relationship to interstate commerce
and thus affect commerce within the meaning of Section
2(6) and (7) of the Act
[Recommended Order omitted from publication)