Letter Carriers Branch 6000 (Postal Service, West Islip, N.Y.)

National Labor Relations Board - Board Decisions

Sep 21, 1977

232 N.L.R.B. 263 (N.L.R.B. 1977)

BRANCH 6000. NATIONAL ASSN. OF LETTER CARRIERS
Branch 6000, National Association of Letter Carriers
(United States Postal Service, West Islip, N.Y.)
and Melvin Lauber. Case 29-CB-2364-P
September 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 27, 1977, Administrative Law Judge
Phil Saunders issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and Respondent,
herein also called Branch 6000 or the Union, filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We agree with the General Counsel that the
Administrative Law Judge erred in concluding that
Respondent did not violate Section 8(b)(l)(A) of the
Act by virtue of its exclusion of nonmembers from
voting on the question of whether carriers would
have fixed or rotating days off. The relevant and
material facts are fully set out in the Adminstrative
Law Judge's Decision. Briefly, in July 1975, the U.S.
Postal Service and the National Association of Letter
Carriers executed a National Agreement, including
therein provisions for local implementation of
various items, one of which was whether carriers
would have fixed or rotating days off. In October
1975, the West Islip management and Branch 6000
executed a memorandum of agreement providing
that "Carriers shall be allowed to vote each year on
having fixed or rotating days off." In December
1975, Branch 6000 stewards conducted an election
among all of the carriers, union members and
nonmembers alike. Several union members objected
to nonmembers participating in the election and,
after consultation with higher union officials, the
election was set aside and a second election was held
at a union meeting from which the nonmember
carriers were excluded. By a one-vote margin, the
issue was resolved in favor of fixed days off.
I This is unlike the ratification of an otherwise agreed-upon contract, in
which the required ratification is an integral part of the union's representa-
uion process, and thus an internal union matter properly determinable hv
union members alone, for the same reasons the members alone may choose
232 NLRB No. 52
Thereafter, management put into effect the policy of
fixed days off for all carriers in the bargaining unit.
The Administrative Law Judge concluded that
Respondent did not violate Section 8(b)(1)(A)
because (I) neither management nor the Union
envisioned nonmembers' participation in the voting,
(2) the matter at issue was exclusively within the
internal domain of the Union, (3) assuming there was
a breach of contract, the contract violation did not
constitute an unfair labor practice, and (4) there is
nothing in the record to show that the Union had not
fairly represented all of the employees in the unit. We
disagree and find that Respondent's refusal to permit
nonunion members of the unit to vote on the
question of fixed or rotating days off violated the
Act.
Contrary to the Administrative Law Judge's
rationale, this is not a matter that was exclusively
within the internal domain of the Union and any
intent of the contracting parties to limit determina-
tion of this subject to members could not be
controlling. For the subject of the vote was the
specific work schedule for the next year, a matter
which directly concerned each employee in the unit
and one of which all were entitled to express their
wishes.' Cf. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local No. 671 (Airborne Freight Corporation of
Delaware), 199 NLRB 994, 999 (1972).
Limiting to union member unit employees only the
right to participate in a referendum which determines
an aspect of working conditions necessarily discrimi-
nates against nonunion unit employees. Where the
matter at issue is of importance to all unit employees,
a direct consequence of denying the right to
participate to nonmembers is to encourage nonmem-
ber unit employees to join the Union. Such conduct
is clearly proscribed by Section 8(a)(1) and
8(b)( )(A) of the Act. The Radio Officers' Union of the
Commercial Telegraphers Union, A FL JA. H. Bull
Steamship Company] v. N.L.R.B., 347 U.S. 17 (1954).
Accordingly, we find that Respondent, by denying
nonunion unit employees the right to vote in a
referendum conducted to determine specific terms
and conditions of employment affecting all unit
employees, violated Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
the negotiators. Here, in contrast, the voting was on the choice of one work
schedule or another, so that the voting became a substitute for negotiation
and thereby eliminated from the situation the union representation element,
and with it the propnety of limiting to union members a voice in the choice.
263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive action designed to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. Branch 6000, National Association of Letter
Carriers, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By denying nonunion unit employees the right
to vote in a referendum conducted to determine
specific terms and conditions of employment affect-
ing all employees in the West Islip, New York,
collective-bargaining unit, Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Branch 6000, National Association of Letter Carri-
ers, West Islip, New York, its officers, agents, and
representatives, shall:
I. Cease and desist from denying nonunion unit
employees the right to vote in a referendum conduct-
ed to determine specific terms and conditions of
employment affecting all employees in the West
Islip, New York, bargaining unit represented by
Respondent.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Set aside, cancel, and invalidate the results of
the most recent annual election conducted pursuant
to the October 1975 Local Memorandum of Under-
standing among union members of the bargaining
unit to determine whether the days off of the
bargaining unit carriers shall be "fixed" days off or
"rotating" days off, and, within 30 days of the date of
this Decision and Order, conduct another election
among all of the carriers in the bargaining unit to
determine whether the days off of the bargaining unit
carriers shall be "fixed" days off or "rotating" days
off.
(b) Post at its business offices, meeting halls, and
all other places where notices to members are
customarily posted, copies of the attached notice
marked "Appendix." 2 Copies of said notice, on
forms provided by the Regional Director for Region
29, after being duly signed by an authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Furnish the Regional Director for Region 29
signed copies of said notice for posting by the
Employer, if the Employer is willing, in places where
notices to its employees are customarily posted.
Copies of said notice, to be provided by said
Regional Director, after being signed by a duly
authorized representative of Respondent, shall be
forthwith returned to said Regional Director for
transmission by him to the Employer.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
2 In the event that 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 National 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."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against nonmember
bargaining unit employees by denying them the
right to vote in an election conducted to deter-
mine specific terms and conditions of employ-
ment affecting all employees employed in the
West Islip, New York, bargaining unit represent-
ed by us for purposes of collective bargaining.
WE WILL set aside, cancel, and invalidate the
results of the most recent annual election con-
ducted pursuant to the October 1975 Memoran-
dum of Understanding among union members of
the bargaining unit to determine whether the days
off of the bargaining unit carriers shall be "fixed"
days off or "rotating" days off, and, within 30
days from the date of the Decision and Order
entered in this proceeding, conduct another
election among all of the carriers in the bargain-
ing unit to determine whether the days off of the
bargaining unit carriers shall be "fixed" days off
or "rotating" days off.
BRANCH 6000, NATIONAL
ASSOCIATION OF LETTER
CARRIERS
264
BRANCH 6000, NATIONAL ASSN. OF LETTER CARRIERS
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Administrative Judge: Based on a
charge filed on January 7, 1976, by Melvin Lauber, herein
the Charging Party, a complaint against Branch 6000,
National Association of Letter Carriers, (United States)
Postal Service, West Islip, New York,1 herein the Respon-
dent Union, the Union, or Branch 6000, was issued on
August 13, 1976, alleging violations of Section 8(b) 1)(A) of
the National Labor Relations Act, as amended. The
Respondent Union filed an answer to the complaint
denying it had engaged in the alleged unfair labor
practices, and subsequent to the hearing before me on this
matter, the Union filed a brief.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, 2 I make
the following:
FINDINGS OF FACT
The Board has jurisdiction over this matter by virtue of
Section 1209 of the Postal Reorganization Act. The facility
involved in this proceeding is the U.S. Post Office located
at 480 Union Street, West Islip, New York, herein called
the Employer or West Islip. The Respondent Union is a
labor organization within the meaning of Section 2(5) of
the Act.
The Unfair Labor Practices
The Respondent Union represents letter carriers at
approximately 110 post offices on Long Island, but in
certain instances each of them conducts separate local
negotiations for their own particular office. The sole
conduct complained of in the instant case is the refusal of
the Respondent Union to allow nonmembers of West Islip
to vote on whether or not to accept fixed or rotating days
off.
It appears that the regular workweek for Postal Service
employees is 5 days. However, days off may be distributed
among employees as either "fixed" days off or "rotating"
days off. Under the fixed method an individual employee
has the same day off each week - e.g., every Wednesday
and every Sunday. Under the rotating method the
individual has different days off each week - e.g.,
Wednesday and Sunday I week, Saturday and Sunday the
next week.
In July 1975, the U.S. Postal Service and the National
Association of Letter Carriers entered into a national
bargaining agreement, but with provisions therein permit-
ting local implementation of various and numerous items
(22 of them) through negotiation of local understandings
during the 30 days following October 1975, and included in
such items is the establishment of a regular workweek of 5
days with either fixed or rotating days off.
The proper name and designation as corrected at the heanng.
2 The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N. L.R. B. v. Wallon Manufacturing Company & Loganville Pants
Prior to the October 1975 local negotiation period,
Branch 6000 sent to the shop stewards at each of its post
offices a letter containing bargaining instructions and
statements as to the Union's position on the 22 items, and
with respect to days off the letter stated that the Union's
position was to negotiate for "Whatever the membership in
your station desire." Then in October 1975, pursuant to the
national agreement, management and Branch 6000 negoti-
ators at the facility of the Employer, executed a local
memorandum of understanding, providing that "Carriers
shall be allowed to vote each year on having fixed or
rotating days off."
In December 1975, the Union's shop steward, Dennis
Van Bomel, conducted an election among all the carriers in
the unit working at West Islip, and had then cast a ballot
for either fixed or rotating days off. However, several
members of the Respondent Union objected to this
procedure and the fact that nonmembers of the Union had
submitted ballots. Steward Van Bomel then contacted
certain officials of the Respondent Union, and upon their
instructions the above election was set aside. The Respon-
dent Union then held a meeting, from which nonmembers
were excluded, and at this meeting a second vote on the
selection of fixed or rotating days off was taken, and the
result was in favor by one vote of fixed days off. Shop
Steward Van Bomel then communicated this result to the
management at West Islip and, in accordance therewith,
management initiated fixed days off for the calendar year
1976, and by so doing changed the practice of having
rotating days off. A few days after this second vote was
taken, Melvin Lauber, the Charging Party herein, working
at West Islip and a nonmember of the Union, gave a
written objection to the Employer's supervisor, Ed Greene,
relative to the outcome of this vote. In turn, Greene
forwarded Lauber's complaint to the postmaster of the
Employer. The postmaster called the U.S. Postal Service
Labor Relations Staff, who, in turn, instructed the
postmaster at West Islip to initiate fixed days off, as
aforestated.
The General Counsel maintains and argues that the
Respondent Union negotiated certain contract benefits,
and that the particular benefit involved therein - whether
the days off would be fixed or rotating - was a right for all
the carriers in the unit to determine. The General Counsel
also contends that this is not a contract ratification vote as
the contract had already been settled and signed, but rather
the vote is an implementation of a contract right. The
General Counsel further asserts that the decision in
Miranda Fuel Company, Inc., 140 NLRB 181 (1962), clearly
establishes that the denial by a union to any employee of a
contract right is a violation of Section 8(bX IXA) of the Act,
and that such is particularly acute in the instant case
because the denial involved was the protected right of
employees to refrain from union membership.
Miranda holds that a bargaining representative and an
employer violated Sections 8(bX2) and (IXA) and 8(a)(3)
Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in
contradiction on the findings herein, their testimony has been discredited.
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in the light of the entire record.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (1) of the Act, respectively, when the union attempts to
cause or does cause an employer to derogate the employ-
ment status of an employee for arbitrary or irrelevant
reasons or upon the basis of an unfair classification.
Moreover, Miranda dealt with a denial of a seniority right.
As pointed out, article XXX of the national collective-
bargaining agreement, which establishes the framework for
the local negotiations at West Islip, clearly provides that
the selection of fixed or rotating days off is to be
implemented through local union-management negotia-
tions, and nothing in this provision suggests participation
by nonunion carriers.3 Moreover, immediately prior to the
local negotiations, the Respondent Union instructed all of
its shop stewards as to the Union's position on the 22 items,
and in the same document also specifically informed the
stewards that they could read such instructions or guidance
suggestions at local union meeting with members in
attendance,4 and I am in agreement that the subsequent
second voting on days off at West Islip, as aforestated, is a
proper local implementation procedure of these instruc-
tions. As also indicated, the overall reactions of the parties
reveal that the idea of nonmembers voting on the days-off
issue was never seriously considered until the circum-
stances and events in question here, and management at
West Islip obviously never manifested any real concern for
nonmember voting rights, but rather delegated the whole
process to the Union.5 Furthermore, individual members of
the Union, at the initial balloting, immediately objected to
nonmember participation, thus reflecting an expectation
that voting was for members only, and higher officials of
the Union also shared this viewpoint as they instructed the
shop steward to conduct a second ballot at a closed union
meeting, as detailed earlier herein. Finally, both the Postal
Service Labor Relations Staff and the West Islip manage-
ment accepted the result of this second vote even though
both were fully aware that nonmembers had been excluded
from this second voting.
It also appears to me that the Charging Party, by
insisting after the terms of the national bargaining contract
were agreed upon that the local implementation procedure
contained therein, including days off, be voted on by all
carriers, including nonmembers of the Respondent Union,
is an attempt to bargain not with respect to "wages, hours,
and other terms and conditions of employment," but with
respect to a matter which was exclusively within the
internal domain of the Union. At some point during
negotiations, management gave up the right to determine
whether fixed or rotating days would be scheduled, and at
this stage the Union would have then been entitled to
decide this question itself, but instead, it opened the
:* See G.C. Exh. 2.
See Resp. Exh. I.
' The West Islip local memorandum of understanding (G.C. Exh. 3),
does contain the provision that "Carriers shall be allowed to vote each year
on having fixed or rotating days off." Admittedly, the terms "Camers" can
refer to all carriers, members and nonmembers alike, but, as pointed out, it
is equally consistent with the agreement as a whole to interpret this term as
decision to its membership and in so doing reserved the
right for members in all the local offices to exercise their
vote as to 22 items. This was clearly a collective-bargaining
decision, and the courts and the Board have long
recognized an unqualified right to exclude nonmembers
from collective-bargaining decisions.
The General Counsel seeks to argue this case on the
grounds that, in excluding nonmembers from the days off
vote, Branch 6000 denied them a specific contract right
under the local West Islip agreement. However, even
assuming the validity of this contention, it has long been
recognized that a contract violation is not of itself an unfair
labor practice. Moreover, Section 10(a) of the Act empow-
ers the Board only to prevent statutory unfair labor
practices. As pointed out, Congress chose not to grant the
Board jurisdiction over disputes of purely contractual
origin, and Section 301 specifically vests jurisdiction over
suits for violation of contracts between employers and
labor organizations in the courts. The Charging Party may
possibly have a remedy against the Union and/or the
Employer arising under the local agreement, but he does
not have a remedy with the Board.
While the decision in Ford Motor Company v. Huffman,
345 U.S. 330 (1953), teaches that a wide range of
reasonableness must be allowed a bargaining representa-
tive in serving the unit it represents, the bargaining
representative is still always subject to complete good faith
and honesty of purpose in the exercise of its discretion.
Under the circumstances in the instant case, the Respon-
dent Union, in my opinion, did not violate its duty of fair
representation to all the employees in the unit when it
restricted the off days vote at West Islip to members of the
Union, nor is there any evidence that the motivation in
bargaining and then designating the 22 items for local
determinations by its members at the various offices, was
any more that than a fair and reasonable solution to local
wishes and desires, and there is lacking any proof that such
was unfair or arbitrary. Moreover, the complaint does not
allege that the fixed days off method discriminates against
the Charging Party individually or against nonmembers in
general. Likewise, the complaint does not allege that
Branch 6000 at any time acted with malice or in bad faith.
CONCLUSIONS OF LAW
The Respondent Union has not violated the Act as
alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
designating only the West Islip members of the Respondent Union. For
example, at p. 7 the memorandum states that it constitutes an agreement
between "the letter Carriers of West Islip, of Branch 6000, NALC AFL-
CIO, and the Management . . . at West Islip." Here the term "Letter
Carners of West Islip" is differentiated from the term "Branch 6000,
NALC," and yet the phrase quite clearly refers only to the union members
of West Islip.
266