National Rural Letter Carriers Association (United States Postal Service)

National Labor Relations Board - Administrative Judge Opinions

Nov 30, 2018

15-CB-213552 (N.L.R.B. Nov. 30, 2018)

JD-77-18
Denham Springs, LA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NATIONAL RURAL LETTER CARRIERS
ASSOCIATION (UNITED STATES POSTAL
SERVICE)
and Case 15–CB–213552
AMANDA WILLIAMS, an INDIVIDUAL
Kevin McClue and Alexandra K. R. Schule, Esqs.,
for the General Counsel.
Jean-Marc Favreau and Mark Gisler, Esqs.,
(Peer, Gan & Gisler LLP), for the Respondent.
Mark F. Wilson, Esq., for the United States Postal Service.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter is before me on a complaint
and notice of hearing (the complaint) issued on June 25, 2018, arising from unfair labor
practice charges that Amanda Williams (Williams) filed against Rural Letter Carriers
Association (the Respondent or the Union) relating to the Denham Springs, Louisiana facility
of the United States Postal Service (the Employer or USPS).
Pursuant to notice, I conducted a trial in New Orleans, Louisiana, on October 9 and
10, 2018, during which the parties had a full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence.
Issue
Did the Respondent violate Section 8(b)(1)(A) of the Act by arbitrarily settling at the
second step of the grievance procedure the grievances of Williams and Yiesha Porter1
over the failure of USPS to follow seniority in awarding them routes, which settlement

1 Hereinafter referred to as “Porter,” as opposed to Angela Porter, to whom I will refer as “A. Porter.”
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2
provided them with a prospective but not retroactive remedy and which did not protect
Porter from receiving demand letters from the Employer for repayment of certain
benefits?
The General Counsel does not contend that the Union’s conduct was discriminatory, 5
invidious, perfunctory, or taken in bad faith. See GC Br. at 1–2, 31 et. seq. Nor has the
General Counsel continued to pursue the complaint allegation that the Respondent acted
arbitrarily in not taking the grievances to arbitration. Accordingly, I will not consider those
theories as bases for finding potential violations.
10
Witnesses and Credibility
The General Counsel called Williams and Porter. The Respondent called the
following union representatives: Joey Johnson, director of labor relations; Deborah Williams,
regional representative; Toni Cannon, district representative; and Tameka Brown, area
steward.15
The underlying facts are generally undisputed, and the testimony of the various
witnesses did not present any major conflicts that affect my decision. Thus, credibility
resolution is not a pivotal factor in this case.
Facts
20
Based on the entire record, including testimony and my observations of witness
demeanor, documents, written and oral stipulations, and the thoughtful posttrial briefs that the
General Counsel, the Respondent, and USPS filed, I find the following.2 The parties’
willingness to enter into many stipulations, both factual and documentary, greatly streamlined
the presentation of evidence (see Jt. Exhs. 1–11). 25
The Employer provides postal services for the United States and operates various
facilities throughout the United States, including its facility in Denham Springs, Louisiana
(the facility). The Board has jurisdiction over the Respondent and this matter pursuant to
Section 1209 of the Postal Reorganization Act. At all times material, the Respondent has 30
been a labor organization within the meaning of Section 2(5) of the Act.
The Union, one of five major unions representing postal employees, represents about
130,000 rural carriers nationwide. At all material times, the Union and USPS have been
parties to a collective-bargaining agreement (national agreement) (Jt. Exh. 1) covering a unit 35
that includes all three categories of rural letter carriers: (1) regular rural letter carriers (regular
carriers), full-time employees who serve an assigned rural mail route; (2) part-time flexible
rural carriers (PTFs), career leave replacement carriers who provide service on regular and

2 On the record, I granted the USPS motion to intervene for the limited purpose of filing a posthearing
brief. See ALJ Exh. 1. On October 23, 2018, I granted the General Counsel’s motion to correct the record, to
which the Charging Party and the Respondent joined, to reflect that Joint Exhibit 4 was introduced and admitted
into evidence.
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3
auxiliary routes as directed by management; and (3) rural carrier associates (RCAs), part-time
employees who deliver mail to various rural routes, typically when the regular carrier
assigned to a route is off duty. As opposed to the first two categories, they are considered
noncareer.
5
Regular carriers work an assigned route each workday with set days off and are not
required to work additional days unless they are on the relief day work list. RCAs and PTFs
generally have a primary route assignment that they cover on regular carriers' days off or
when they take leave. RCAs may have secondary and tertiary route assignments that they
work in the absence of the primary RCA and in accordance with the facility’s requirements. 10
RCAs’ days off can change from week to week, and they can be required to work up to 12
hours per day. Regular carriers receive an annual salary that is determined by an annual
evaluation of the route to which they are assigned, not their actual hours worked, and they
receive periodic step and cost of living increases. RCAs and PTFs also get paid based upon
the route evaluation for the days they work, but they receive overtime for actual work hours 15
over 40 hours.
Although both regular carriers and RCAs are eligible for health, vision, dental, and life
insurance, RCAs receive less benefits than those offered to regular carriers (see GC Exh. 11).
Regular carriers receive retirement benefits, including a pension and a thrift savings plan 20
(TSP); PTFs are career employees who have deductions under the Federal Insurance
Contributions Act, earn step increases, and leave. On the other hand, RCAs do not receive
retirement benefits, cost of living increases, or step increases.
Article 12.3 of the national agreement governs posting of, bidding on, and awarding25
vacant routes. When a full-time regular route becomes available, the route is posted at the
local post office and associated stations and branches for 10 days during which time regular
carriers and RCAs can bid on the route. The posting must include information on all regular
(full-time) routes in the office and inform the potential bidders that “the bidding is not only
for the existing regular route vacancy, but also for eligible rural carriers to bid on any regular 30
route(s) in the office that may become available as a result of filling the vacant route on the
original posting.” (Jt. Exh. 1 at 61). Regular carriers have bidding preference over RCAs and,
within each job classification (i.e., regular carriers and RCAs), route assignments are awarded
based on seniority at the particular facility. Regular carriers also have bidding preference
over PTFs, but PTFs must be awarded a vacancy prior to an RCA. When an open bidding 35
period closes, the Employer awards the vacant route and any residual vacancies (i.e., routes
that become available after another route is assigned) to the most senior eligible employee
who bid on the route. If a carrier bids on multiple routes, he or she can designate an order of
preference.
40
Memorandum of Understanding 7 in the national agreement (Jt. Exh. 1 at 145–146)
provides in relevant part that a carrier who is unable to perform the duties of a bid-for-
position can bid for an open position if he or she will be able to perform its duties in 6 months
from the time the bid is awarded. In that event, the position will be held in abeyance. Prior to
the award, the employee must have on file or must provide medical certification indicating 45
JD-77-18
4
that he or she will be able to full perform the duties of the position within that required period,
or the position will be awarded to the next senior bidder.
Pursuant to article 12 of the national agreement (Jt. Exh. 1 at 53 et. seq., 145–147), the
Employer maintains the employee seniority lists, is responsible for notifying carriers of route 5
vacancies, and conducts the bidding and route award process. The bidding process is
electronic and will automatically fill in the vacant routes with the next eligible individual.
The Union and individual carriers have the right to grieve violations of the agreement that the
Employer commits during the bidding and/or award process.
10
The grievance and arbitration procedure is set forth in article 15 (Jt. Exh. 1 at 76 et.
seq.). Section 1 provides, as part of the general policy, that (1) grievances be “processed and
adjudicated based on the principle of resolving such grievances at the lowest possible level in
an expeditious manner . . .;” and (2) that “[t]he parties . . . agree that at any step in the
grievance procedure, the Union representative shall have full authority to settle or withdraw 15
the grievance in whole or in part.” (Jt. Exh. 1 at 76; see also Jt. Exh. 1 at 83). The grievance
procedure provides for four steps and then arbitration. At each step, a higher-level
representative of USPS and the Union is involved. At all times relevant, the following
individuals served as the union representative: step 1 – Tameka Brown, local steward; step 2
– Toni Canon, district representative for the State of Louisiana; and step 3 – Deborah 20
Williams, regional representative for the Employer’s Southern District (Representative
Williams). When a grievance goes to the next step, both parties are responsible for insuring
that all facts, issues, and documentation are provided to the appropriate officials.
The facility is the largest rural postal facility in Louisiana, having approximately 36–25
40 routes. As of March 14, 2017, 3 on the facility’s RCA roster, Myaika Gross had a seniority
date of May 5, 2012; Williams a seniority date of March 24, 2014, A. Porter the same
seniority date as Williams, and Porter a seniority date of October 3, 2015 (R. Exh. 5 at 3–4).
On March 11, the Employer posted four route vacancies: 2, 14, 26, and 28, with 30
bidding to close on March 20 (GC Exh. 9). Regular carrier Parviz Scott bid on and was
awarded Route 2. Because he was awarded Route 2, his former route, Route 33, became
available for bidding. Regular carrier Cindy McLin bid on and was awarded Route 14.
Because McLin was awarded Route 14, her former route, Route 13 became a residual route.
Both RCAs Williams and Porter bid on all posted routes and on nonposted routes (see GC 35
Exh. 10) in case they became vacant as a result of the bidding process. Williams specified
Routes 26 and 28 as her top two picks; Porter did not specify any preferences because she was
low on the seniority list.
During this open bidding process, RCA Gross was off from work on an on-the-job 40
injury. At some point, she left on her supervisor’s desk the required limited duty worksheet,
along with a doctor’s note that stated she could return to full duty on March 31 (R. Exh. 3 at

3 All dates hereinafter occurred in 2017 unless otherwise indicated.
JD-77-18
5
28–29). However, management misplaced the doctor’s note and did not locate it prior to the
awarding of the bids. As result, Gross’ bids were rejected because she was found ineligible.
General Counsel’s Exhibit. 4 is the preaward bid list for the March 11 posting, which
shows what various carriers would have been awarded if they met all qualifications necessary 5
to perform the route, including medical clearance if the carrier was on medical restriction.
General Counsel’s Exhibit 8 is the “complete bid list” for the posting
When this bidding period closed on March 20, Route 13 was held in abeyance for
regular carrier Christina Beach, Route 26 was awarded to RCA Williams (her first choice), 10
Route 28 was awarded to RCA A. Porter, and Route 33 was assigned to RCA Porter. The
above-specified route assignments went into effect on April 15. As a result, RCAs Williams,
A. Porter, and Porter became regular carriers, but Gross remained an RCA.
On March 31, in response to the Employer’s refusal to accept her March bids, Gross 15
filed a grievance (Jt. Exh. 2 at 7), contending that she had submitted the proper paperwork and
should have been awarded a route. The Union took the position that there was no requirement
in the contract that Gross have hand-delivered the documentation to her supervisor, as the
Employer initially contended.
20
On May 6, the Employer posted a route vacancy for Route 20, on which Porter bid and
was awarded. Her former route (Route 33) then became available and was bid on and
awarded to Gross. As a result, Gross became a regular carrier effective June 10. Williams
did not bid during this posting period and remained on Route 26.
25
Another route posting occurred on July 29. As a result of this posting, rural carrier
Kayla Talbert, whose termination from USPS was being challenged through the grievance
process, was holding route 38 in abeyance. This posting was not finalized prior to the
settlement of Gross’ grievance.
30
On September 18, the Employer and the Union settled Gross’ grievance at step 3 (Jt.
Exh. 2 at 8).4 In determining how the grievance would be settled and effectuated,
Representative Williams and Sharon Favors, the Employer’s area labor relations specialist,
had requested a copy of the seniority list kept by the Employer’s officials at the facility.
However, the facility had no such list, and they subsequently obtained a purported seniority 35
list from the Employer’s postal service operations in Shreveport, Louisiana (Jt. Exh. 3).
According to Steward Brown, this was actually a schedule rather than a seniority list, but
relying on the schedule for seniority purposes had not been an issue in the past.
This list that the Employer and the Union used to craft and effectuate Gross’40
settlement listed employees by their hire date, not by seniority, and showed A. Porter ahead of
Williams. That was incorrect because, although the two had the same enter-on-duty date,

4 The General Counsel does not contend that the Union engaged in any malfeasance in the way it
processed or settled Gross’ grievance.
JD-77-18
6
Williams in fact had a higher seniority ranking based on her having a higher score on the
USPS entrance examination. Representative Williams, who settled the Gross grievance,
testified that the Union had no reason at the time to question the accuracy of the list that the
Employer had provided.
5
Respondent’s Exhibit 3 is the Union’s file for the Gross grievance, which includes
both the USPS–union joint file and the Respondent’s internal documents. It contains (at 34) a
relief carrier schedule for the week of February 4 showing Williams ahead of A. Porter. It is
crossed out by a large “X” and has various handwritten changes. It is not clear if and how this
document was considered during settlement discussions between the Employer and the Union; 10
Brown could not recall seeing the document, testifying that Gross’ grievance was not based
on seniority.
Pursuant to Gross’ settlement, retroactive to April 15, Williams was moved to Route
33, a route that she previously had and did not like; Talbert was awarded Route 26, which was 15
held in abeyance due to the pending termination grievance; and Porter’s conversion to a
regular carrier on Route 33 was cancelled and she was returned to her RCA position. This
settlement further provided that, for the period of April 15 to June 9, Gross was retroactively
assigned Route 26 and, starting June 10, to Route 20.5
20
On September 21, District Representative Cannon informed Williams and Porter of
their reassignments as a result of the settlement. During their conversation, both Williams
and Porter expressed displeasure, Williams at her reassignment and Porter at her demotion.
Williams pointed out that she was senior to A. Porter, but Cannon replied that the terms of the
settlement agreement would not be changed, and A. Porter would remain on Route 28.25
The following day, Williams, Porter, and A. Porter participated in an informal first-
step discussion with Postmaster Loquita Vallery, 204B Acting Supervisor Dana Lewis, and
Brown. Williams again said that the incorrect seniority list was used in settling the Gross
grievance. Vallery stated that she agreed with Williams but that she had to follow the 30
grievance settlement. Brown also stated that she understood Williams’ position but that
Cannon would handle the grievances if they went to the next step. The grievances were not
settled, and Williams called Cannon after the call. She repeated her complaint that the wrong
seniority list was used in settling the Gross grievance. Cannon responded that the settlement
was final. Williams stated that she wished to file a grievance, and Cannon replied that she 35
could. Williams asked who Cannon’s supervisor was, and Cannon replied (Committeeman)
Shirley Baffa. Baffa called Williams about a week later. After Williams explained the
situation, Baffa stated that she would get back to her, but they had no further communications.
The same day, Williams and Porter filed written grievances regarding their route 40
reassignments as per the Gross settlement (Jt. Exhs. 4 and 5). A. Porter, who was not
reassigned, also filed a grievance, dated September 23, over the use of an inaccurate seniority
list (Jt. Exh. 6).

5 USPS implemented the terms of the agreement on December 8. See R. Exh. 9 at 25.
JD-77-18
7
While the Union was processing those three grievances, officials at the facility
furnished the Union with an accurate seniority list (undated “Seniority Report”) (Jt. Exh. 7).
The Employer provided no explanation to the Union for why it did not earlier provide an
accurate list. 5
Union representatives at various levels were involved at different points, over many
months, in discussing between themselves and with management the substance of the
grievances and in attempting to fashion an appropriate remedy (see R. Exhs. 1, 3–7, and 9,
encompassing the official USPS–union grievance files and the Union’s internal files, 10
including internal written communications). In an email of January 3, 2018 (R. Exh. 1 at 5) to
Joey Johnson, the Union’s national director of labor relations, Representative Williams
accused local management of “playing games” and “still protecting” “very junior” Porter and
Williams, who was working as a 204B supervisor.
15
Steward Brown handled the grievances at the first step. To verify the grievants’ claim
that the seniority list used in the Gross settlement was inaccurate, she worked with 204B
Supervisor Elisa Hamilton to construct an accurate seniority list, which was completed in
November (R. Exh. 4 at 3–4, 11–12). Because they were unable to reach agreement on a
remedy, the Employer denied the grievances, which went to the second step on November 28 20
(see R. Exh. 4, step 2 documents) and were handled by Cannon. Thereafter, Baffa, Brown,
Cannon, and Williams had a series of email communications in which they discussed at length
the matter of remedy (R. Exh. 7 at 159 et seq.). Cannon also worked with the Employer in
trying to correct deficiencies in the seniority list at the facility. Representative Williams
discussed with Cathy Perron of USPS contract administration and Johnson how to resolve the 25
grievances. She eventually drafted language on remedy and, after consulting with Johnson
(R. Exh. 9 at 10–11), presented it to the Employer.
On March 23, 2018, the Union and the Employer agreed to settle all three grievances
at step 2 (Jt. Exhs. 4, 8, and 9). The Union did not discuss the terms of the settlements with 30
Williams, Porter, or A. Porter before agreeing to them.
The settlements provided that local management promptly post an attached (accurate)
seniority list on the bulletin board and provide the Union with any changes, that routes 26 and
38 be promptly posted, and that management subsequently post the two PTF positions that 35
were being vacated by the two senior PTFs being awarded regular routes. As opposed to the
settlement of the Gross grievance, neither Williams nor Porter were awarded a retroactive
remedy.
Representative Williams has held union positions entailing responsibility for handling 40
grievances for 32 years. She testified that the Union wanted to settle the grievance in the best
way possible with the least impact on the least number of employees, and that the settlement
was designed to enable Williams to bid on and get Route 26 and to enable Porter to
immediately obtain career status by becoming a PTF. In this regard, nothing in the national
JD-77-18
8
agreement requires the Employer to immediately post PTF positions vacated by PTFs who are
promoted to regular status or who resign; rather, that is left to the Employer’s discretion.6
The Employer did create two new PTF positions effective on June 23, 2018, one of which was
awarded to Porter, who shortly before the trial became a regular carrier.
5
According to Johnson, when resolving route grievances, the Union must consider how
many different employees will be impacted by undoing what was done; the more routes, the
more complex. He further testified that making Williams’ and Porter’s remedies retroactive
would likely have resulted in other employees filing grievances over their route changes
because changing one route affects other route assignments, creating a “snowball” or 10
“domino” effect.7
In April 2018, Talbert was removed as an employee, and the routes that had been held
in abeyance were posted. Thereafter, Williams bid on, and was awarded, Route 26. Because
Williams has been a 204B acting supervisor since November 2017, she has not yet carried 15
that route apart from one occasion for over a week when she briefly stepped down as an
acting supervisor.
Both Williams and Porter were adversely affected financially by their reassignments
pursuant to the terms of the Gross settlement, beyond Williams’ route reassignment and 20
Porter’s demotion back to RCA. Regarding the Gross settlement, the Employer, in a letter of
September 18, advised the affected carriers and the Union that debts might incur relative to
the cancellation and/or conversion of routes (retroactive to April 15) and that in the event of
debts, management would take appropriate administrative action to pursue and collect them
(R. Exh. 3 at 2). 25
In an email of December 8, the Employer specifically stated that “Ms. Porter will
receive a letter of demand from payroll” (R. Exh. 9 at 25), and it subsequently issued Porter
two such demand letters: one dated December 27, in the amount of $2,770.80 for health
benefit moneys (GC Exh. 11); the other dated June 1, 2018, in the amount of $3,146.11 for 30
TSP and retirement benefits (CG Exh. 12). Employees can grieve repayment demands, and
Porter filed a grievance over the latter, which is pending. The Employer is supposed to hold a
repayment demand in abeyance until a grievance over it is resolved. As the General Counsel
points out (GC Br. at 16), none of the Union’s settlement offers to the Employer required
USPS to forego the collection of any wages or benefits that it paid on Porter’s behalf; 35
Representative Williams did, however, tell Favors of USPS labor relations that a letter of
demand would be inappropriate under the circumstances.
As to Williams, due to the Employer’s delays in processing paperwork, her hours for
the pay period October 28–November 10 were recorded as 40 hours of leave without pay (GC 40
Exh. 5). As a result, some of her checks bounced because they were on autopay from her
paycheck, and she had to pay overdraft fees levied by her bank. The Employer later partially,

6 USPS supports this conclusion (USPS Br. at 5).
7 USPS supports this analysis (USPS Br. at 6).
JD-77-18
9
but not fully, compensated her for the hours that she actually worked during that period. She
also lost a day of annual leave because she was charged with leave without pay.
General Counsel’s Position
The General Counsel contends that the Union acted arbitrarily in settling Williams’ 5
and Porter’s grievances at the second step of the grievance procedure without requiring the
Employer to retroactively apply the correct seniority list in their favor and without protecting
Porter from being subject to repayment demand letters.
Applicable Law10
Section 8(b)(1)(A) of the Act provides that it shall be an unfair labor practice for a
labor organization “to restrain or coerce . . . employees in the exercise of the rights guaranteed
in Section 7 of the Act.” Section 8(b)(1)(A) creates a duty, when a union is acting as an
exclusive bargaining representative, to fairly represent all employees in the bargaining unit 15
and to refrain from any action against an employee based upon considerations or
classifications that are arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171,
190 (1967); see also Operating Engineers Local 181 (Maxim Crane Works), 365 NLRB No. 6
(2017).
20
The Supreme Court has long held that a union is afforded wide latitude in carrying out
its representational duties. See United Steelworkers of America, AFL-CIO-CLC v. Rawson,
495 U.S. 362, 374 (1990), citing Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953); Vaca
v. Sipes, above at 191; see also Operating Engineers Local 181, above. As the Court stated in
Airline Pilots Assn. v. O’Neill, 499 U.S. 65, 78 (1991), regarding a union’s negotiated strike 25
settlement, an examination of a union’s performance “must be highly deferential, recognizing
the wide latitude that negotiators need for the effective performance of their bargaining
responsibilities.”
To be found arbitrary, the union’s behavior must have been “so far outside a ‘wide 30
range of reasonableness’ that it is wholly ‘irrational’ or ‘arbitrary.’” Airline Pilots Assn.,
above at 66, citing Ford Motor Co., above at 338; see also Amalgamated Transit Union Local
1498 (Jefferson Partners L.P.), 360 NLRB 777, 778 (2014).
Thus, a union enjoys a wide range of discretion in determining whether and how to 35
handle employee grievances, provided the exercise of such discretion is not based on
discriminatory, arbitrary, or bad-faith considerations. Office Employees Local 2, 268 NLRB
1353, 1355 (1984), affd. sub nom. Eichelberger v. NLRB, 765 F.2d 851 (9th Cir. 1985), citing
Teamsters Local 692 (Great Western), 209 NLRB 446 (1974); see also Turner v. Air
Transport Dispatchers’ Assn., 468 F.2d 297, 299 (5th Cir. 1972). 40
Something more than mere negligence, poor judgment, or ineptitude in grievance
handling is needed to establish a breach of the duty of fair representation. Amalgamated
Transit Union, above; Plumbers Local 342 (Contra Costa Electric)(Contra Costa II), 336
NLRB 549, 550 et. seq. (2001), petition for review denied sub nom. Jacoby v. NLRB, 325 45
JD-77-18
10
F.3d 301 (D.C. Cir. 2003); Office Employees Local 2, above at 1355; Service Employees,
Local 579 (Beverly Manor Convalescent Center), 229 NLRB 692 (1977).
The above principles apply to grievance settlements involving multiple individuals,
some of whom are dissatisfied with the outcome. See Letter Carriers Branch 1227 (Postal 5
Service), 347 NLRB 289, 289 (2006); Letter Carriers Branch 6070 (Postal Service), 316
NLRB 235 (1995).
Analysis and Conclusions
10
I conclude that the Union’s conduct, in settling the grievances at the second step,
without providing for a retroactive remedy and without protecting Porter from demand letters,
was not arbitrary. Rather, various union representatives, including national Director of Labor
Relations Johnson, spent considerable time between themselves and with management, over a
period of months, trying to fashion an appropriate remedy that would effectively balance the 15
interests of the grievants in getting their proper seniority and desired routes, and the interests
of other carriers in not having their routes disrupted. In these circumstances, I cannot find
that its second-step grievance settlements were so far outside the range of reasonableness as to
have been irrational.
20
The General Counsel points out (GC Br. at 18, 28) that the Union settled the Gross
grievance with a retroactive remedy. However, this does not in and of itself show that it acted
arbitrarily in not seeking the same for Williams and Porter since the situations were not
identical. The Gross grievance resulted from what was a clear error on the Employer’s part
that was easily detected; these grievances required considerable investigation due to the 25
Employer’s failure to maintain a readily accessible seniority list. Retroactivity for Gross
affected only Williams and Porter; retroactivity for them could have adversely affected a
greater number of other carriers and likely resulted in additional grievances. The General
Counsel argues (GC Br. at 32 et. seq.) that the Union did not prove that there would have been
such a “snowball” effect. However, as the USPS brief at 6 points out, the retroactive remedy 30
provided to Gross resulted in Williams and Porter being bumped from their routes, and there
is no reason to believe that their getting a retroactive remedy would not have had a similar
impact on other carriers. In any event, the Union was not legally obliged to insist on a
retroactive remedy in either situation.
35
The same holds true of the Union’s failure to insulate Porter from being subjected to
demand letters from the Employer. I note that Porter had a right to grieve any demands for
repayment, thereby staying her obligation to repay. Thus, she was not left without a remedy,
and the Union is currently processing a grievance to waive any such money owed. As to pay
issues that Williams experienced in late 2017, the Union correctly points out (CP Br. at 29 fn. 40
9) that these were unconnected to the way the Respondent handled her grievance; rather, they
stemmed from problems with the Employer’s paperwork processing.
The General Counsel argues (GC Br. at 35) that the Union did not want to make
Williams and Porter whole based on Representative Williams’ reference in her January 3, 45
2018 email to Porter as “very junior” and Williams as an acting supervisor, and that these
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11
were arbitrary considerations. I fail to see such a nexus, noting that the General Counsel has
not contended that the Union discriminated against them because of those statuses. Moreover,
I do not agree with the General Counsel (GC Br. at 5) that Representative Williams’ comment
in that email about management protecting Williams and Porter infers that the Employer
offered or discussed returning them to their original positions. On the contrary, nothing in the 5
Respondent’s grievance files indicates that the Employer proposed or was willing to entertain
such a remedy.
The General Counsel further argues (GC Br. at 4) that the inclusion in the Union’s
Gross grievance file of a correct seniority list (R. Exh. 3 at 30) demonstrates that the Union10
knew or should have known that the list used to settle the Gross grievance was incorrect.
However, that was a schedule list rather than an official seniority list, Gross’ grievance did
not involve an issue regarding her seniority, and how it got into the grievance file is unknown.
In any event, this shows negligence at most, considering the confusion regarding the issue of
Williams’ seniority vis-à-vis A. Porter and the surprising difficulty that the Employer and the 15
Union had in ascertaining accurate seniority. As the Fifth Circuit Court of Appeals aptly
stated in Landry v. The Cooper/T. Smith Stevedoring Co., 880 F.2d, 846, 854 (5th Cir. 1989),
“[T]he duty of fair representation does not reach all less than perfect behavior.” The
Employer’s inability to have had such information readily available seems unusual in today’s
age of computerized records, but that was not the Union’s responsibility, and nothing in the 20
record suggests that either the Employer or the Union engaged in bad faith in processing the
grievances.
The General Counsel also contends (GC Br. at 30) that due to the foreseeable
detrimental effects that Williams and Porter suffered, the Union’s failure to communicate with 25
them amounted to more than mere negligence. However, the failure of a union to maintain
reasonable contact with employees, including a failure to respond to phone messages and to
keep employees properly informed of its address or meetings does not equate to arbitrary,
invidious, or perfunctory action. Diversified Contract Services, 292 NLRB 603, 606 (1989);
Rainey Security Agency, 274 NLRB 269, 270 (1985). The General Counsel cites (GC Br.at 30
30) Service Employees Local 3036 (Linden Maintenance), 280 NLRB 995 (1986), but that
case is distinguishable. There, the Board (at 997) found that the union’s abandonment of a
grievance, without providing any explanation to the grievant or any evidence of the exercise
of discretion in abandoning the grievance amounted to a willful failure to pursue the
grievance and was therefore perfunctory (not arbitrary). The Board emphasized that the union 35
had earlier “specifically committed itself to process the grievance to arbitration.” (ibid).
No doubt, use of the wrong seniority list in settling the Gross grievance worked to the
detriment of Williams and Porter, who were understandably upset. However, the party
bearing primary responsibility for any losses they suffered was the Employer, which first 40
failed to honor Gross’ route bid because it could not locate all of the medication
documentation that Gross had submitted, and then provided the Union with a faulty seniority
list in resolving her grievance. The Union was not required in representing Williams and
Porter in their grievances to make them whole for any and all financial and other adverse
consequences that they suffered as a result. 45
JD-77-18
12
I therefore conclude that the Union did not violate Section 8(b)(1)(A) by breaching its
duty of fair representation to Williams and Porter by settling their grievances under the terms
that it did.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent and this matter pursuant to5
Section 1209 of the Postal Reorganization Act.
2. At all times material, the Respondent has been a labor organization within the
meaning of Section 2(5) of the Act.
10
3. The Respondent has not engaged in any violations of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
15
ORDER
The complaint is dismissed.
Dated, Washington, D.C., November 30, 2018.
20
Ira Sandron
Administrative Law Judge
25

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board
and all objections to them shall be deemed waived for all purposes.
Qsd